August 2023 - Parks & Recreation - 29

proximately causing such injury.
Further, the court noted Section
1-210 of the Act (745 ILCS 10/1210
(West 2006)) defined willful
and wanton conduct as " a course
of action which shows an actual
or deliberate intention to cause
harm or which, if not intentional,
shows an utter indifference to or
conscious disregard for the safety
of others or their property. " As
described by the court, the Illinois
Supreme Court had provided the
following " guidance " for determining
" willful and wanton " conduct
under the Act:
The term " willful and wanton "
includes a range of mental
states, from actual or deliberate
intent to cause harm, to conscious
disregard for the safety of others
or their property, to utter indifference
for the safety or property
of others....Whether conduct is
willful and wanton depends on the
circumstances of each case. Ordinarily,
the determination whether
conduct is willful and wanton is a
question of fact for the jury.
Some Safety Evidence
In this case, the City had provided
its aquatics safety expert (Smith)
who testified " neither the individuals
managing the beach nor the
lifeguards showed an utter disregard
or conscious indifference
for the safety of its patrons. " In
particular, Smith believed " utter
indifference meant no one cared
about saving Eric, which was not
true. " Accordingly, Smith believed
Plaintiff needed to introduce some
evidence the lifeguards did not care
what happened to Eric to prevail.
In addition, Smith opined Eric's
conduct alone was the proximate
cause of his death.
In so doing, Smith had noted the
City required certified lifeguards,
provided proper equipment, and
followed Illinois law with regard
to lifeguard staffing requirements.
The City also had posted warnings
for novice swimmers. As for inservice
training, Smith
five lifeguards testified
ries, " the failure to take " additional
steps that would have prevented an
injury does not establish the entity
exhibited a conscious disregard for
the safety of others. "
As characterized by the appeals
noted
they
remembered receiving some
training at the beach. Smith further
testified the initial search at the
location where a witness said he
last saw Eric did not represent an
utter disregard, utter indifference
or complete disregard of Eric's
situation.
Accordingly, the City had argued,
" when a unit of local government
takes steps to prevent injucourt,
the City's argument would
preclude a finding of " willful and
wanton conduct " whenever " an
entity covered by the Act that takes
some steps to protect an individual
or individuals. " The court rejected
this argument:
While the fact more safety precautions
could have been taken by
a defendant does not establish the
defendant's conduct was willful
and wanton, this does not mean
the conduct of a defendant who
took some safety steps cannot be
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August 2023 - Parks & Recreation

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