A lawsuit filed by the son of a longtime Madison County employee who became paralyzed after jumping off a boat in shallow water during a 2005 Fourth of July party has been dismissed.Failing to warn him not to dive or jump off of the boat;
Madison County Circuit Court Judge Daniel Stack ruled from the bench June 10.
Jared Gueldener claimed that during the late evening of July 3 and early hours of July 4, 2005, he was on a pontoon boat owned by Dennis and Luke Dorris on the waters of Holiday Shores Lake.
His mother Kay Gueldener is a long time employee of Madison County working in County Clerk Mark Von Nida's office.
Gueldener had claimed that the Dorrises knowingly permitted unsupervised minors, including himself, to board the boat at its mooring at or near their home on Sextant Drive in Worden.
He dove off the side of the boat striking the bottom of the lake crushing his cervical spine, rendering him unconscious and causing quadriplegic paralysis.
According to the suit, it was the duty of the Dorrises to exercise ordinary care in the operation and control of their boat so as to not cause injury to passengers.
Gueldener claimed the defendants breached that duty by negligently and carelessly:
Parking or mooring the boat in too shallow of water to allow for safe diving;
Failing to warn passengers to the dangers of the waterways;
Operating the boat while impaired from the consumption of alcohol; and
Failing to provide a competent crew or master of the vessel as well as properly equipping the vessel with lighting and other safety equipment.
The Dorrises asked Stack to dismiss the complaint arguing that they did not have a duty to warn Gueldener not to dive or jump off the boat because bodies of water are considered to be "open and obvious conditions" and thereby carry their own warning of possible danger.
The Dorrises were represented by Martin Morrissey and Tara English of Edwardsville.
They had also argued that they had no duty to refrain from parking or mooring the boat in water too shallow to allow for safe diving and had no duty to warn about any dangers associated with the lake itself.
Citing case law from Dowen v. Hall, the Dorrises argued that Illinois law establishes that a property owner has no duty to warn guests about the dangers associated with diving into a lake.
Also citing the Dowen case, they argued "an attempt to execute a flat dive into the uncertain depths of muddy lake waters presents an open and obvious danger of paralysis to a reasonable adult."
The Dorrises also argued that the Dowen case established that when the condition at issue is open and obvious, Illinois law considers the likelihood of injury to be slight "because it is assumed that persons encountering the potentially dangerous condition of the land will appreciate and avoid the risks."
They also argued that Gueldener's claim that they were negligent in docking their boat in a location too shallow for safe diving "is absurd."
"Plaintiff's allegation implies that the Defendants should have protected him by docking their boat in deep water and then swimming to shore in order to get home," Morrissey argued.
Morrissey said that Illinois law provides no basis for Gueldener's assertion that his clients had to moor their boat in a location that provided for safe diving.
Gueldener's attorney countered that while Illinois courts have historically held that landowners did not owe a duty to take precautions to warn against open and obvious risks on their property, Illinois courts can rely on Section 343A of the Restatement of Torts which provides that landowners do owe a duty if they should anticipate harm despite the open and obviousness.
Gueldener was represented by Steve Selby of Alton.
While Stack dismissed the case he did so without prejudice and gave Gueldener 40 days to amend his complaint in order to properly plead the facts.
07 L 600