                           ILLINOIS OFFICIAL REPORTS
                                       Appellate Court




                  Bezanis v. Fox Waterway Agency, 2012 IL App (2d) 100948




Appellate Court            NIKOLAS BEZANIS, Plaintiff-Appellant, v. FOX WATERWAY
Caption                    AGENCY and THE SHERIFF OF LAKE COUNTY, Defendants-
                           Appellees.



District & No.             Second District
                           Docket No. 2-10-0948


Rule 23 Order filed        September 27, 2011
Rule 23 Order
withdrawn                  March 15, 2012
Opinion filed              March 15, 2012


Held                       In an action arising from the injuries plaintiff suffered when he dove
(Note: This syllabus       headfirst into the shallow area of a lake 400 feet from the shore and
constitutes no part of     struck the bottom, the trial court’s dismissal of his complaint with
the opinion of the court   prejudice was affirmed, since defendants, the waterway agency and the
but has been prepared      county sheriff, had no duty to warn plaintiff of the danger of such
by the Reporter of         conduct.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Lake County, No. 09-L-773; the Hon.
Review                     Christopher C. Starck, Judge, presiding.


Judgment                   Affirmed.
Counsel on                  Daniel F. Konicek, James P. Lynch, and Karli L. Moore, all of Konicek
Appeal                      & Dillon, P.C., of Geneva, for appellant.

                            Patrick J. Ruberry, of Litchfield Cavo, LLP, of Chicago, for appellee Fox
                            Waterway Agency.

                            Michael J. Waller, State’s Attorney, of Waukegan (Carla N. Wyckoff,
                            Assistant State’s Attorney, of counsel), for appellee Sheriff of Lake
                            County.


Panel                       JUSTICE BURKE delivered the judgment of the court, with opinion.
                            Presiding Justice Jorgensen and Justice Birkett concurred in the judgment
                            and opinion.



                                              OPINION

¶1           Plaintiff, Nikolas Bezanis, dived headfirst from a boat into a shallow area of a lake, about
        400 feet from shore, and he was severely injured when his head struck the lake bottom.
        Plaintiff filed a three-count second amended complaint, alleging that defendants, Fox
        Waterway Agency (FWA) and the Lake County sheriff (Sheriff), owed and breached a duty
        to warn boaters and swimmers of the risk of diving into shallow water far from shore. The
        trial court dismissed with prejudice the second amended complaint, and plaintiff appeals. The
        facts of this case are tragic, but the well-settled authority involving the open and obvious
        risks associated with bodies of water compels us to conclude that defendants owed plaintiff
        no duty to warn of the risk of diving far from shore. We affirm the dismissal with prejudice
        of plaintiff’s second amended complaint.

¶2                                              I. FACTS
¶3           The injury occurred at 5:45 p.m. on August 21, 2008, on Petite Lake, which is one of 15
        lakes that comprise the Illinois Fox River’s Chain O’ Lakes system. The complaint alleges
        that plaintiff, a teenager, dived headfirst off an anchored boat in the middle of the lake, about
        400 feet from shore. As the water was only three feet deep in that area, plaintiff struck his
        head on the bottom of the lake and he is now quadriplegic. Plaintiff alleges that defendants
        were responsible for the safety of people on the lake and breached their duty of care by
        failing to place buoys, markers, or other flotation devices on the water to warn against diving
        into the shallow parts of the lake, including into those areas far from shore. Count I alleges
        that FWA was negligent, and counts II and III allege willful and wanton conduct by FWA
        and the Sheriff, respectively.


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¶4       FWA and the Sheriff each filed a motion to dismiss under sections 2-615 and 2-619(a)(9)
     of the Code of Civil Procedure (Code). See 735 ILCS 5/2-615, 2-619(a)(9), 2-619.1 (West
     2010) (section 2-619.1 providing for combined motions seeking relief under sections 2-615
     and 2-619). FWA argued that counts I and II failed to state claims of negligence and willful
     and wanton conduct because plaintiff had failed to allege facts to establish that FWA owed
     plaintiff a duty to warn (see 735 ILCS 5/2-615 (West 2010)). In particular, FWA argued that
     plaintiff should have known that diving into water of unknown depth presents an open and
     obvious risk of injury. FWA also argued that sections 2-201 and 3-108(a) of the Local
     Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745
     ILCS 10/2-201, 3-108(a) (West 2010)) conferred tort immunity that was affirmative matter
     barring the claims (see 735 ILCS 5/2-619(a)(9) (West 2010)).
¶5       The Sheriff argued that count III failed to state a claim of willful and wanton conduct (see
     735 ILCS 5/2-615 (West 2010)) and that certain sections of FWA’s code of rules and
     regulations were affirmative matter defeating the claim (see 735 ILCS 5/2-619(a)(9) (West
     2010)). Specifically, the Sheriff argued that (1) the risk of injury from diving was open and
     obvious, and therefore plaintiff had failed to allege sufficient facts to establish a duty to
     warn; (2) plaintiff had failed to allege sufficient facts that, under section 1-210 of the Tort
     Immunity Act (745 ILCS 10/1-210 (West 2010)), the Sheriff had engaged in a course of
     action that showed an actual or deliberate intention to cause harm or an utter indifference to
     or conscious disregard for the safety of others; and (3) plaintiff had failed to allege sufficient
     facts to show that the Sheriff owed plaintiff a special duty so as to overcome the immunity
     conferred by section 2-103 of the Tort Immunity Act (745 ILCS 10/2-103 (West 2010)). The
     Sheriff also argued that several statutes and rules specifically assigned responsibility for the
     Chain O’ Lakes to other entities, including the Illinois Department of Natural Resources
     (DNR) and FWA, and thus were affirmative matter defeating the claim against the Sheriff.
¶6       On May 12, 2010, the trial court dismissed the complaint with prejudice, and the court
     denied plaintiff’s motion to reconsider on August 31, 2010. In a one-page handwritten order,
     the court stated that defendants did not owe plaintiff a duty to warn and that defendants were
     immune from plaintiff’s claims. Plaintiff timely appeals.

¶7                                       II. ANALYSIS
¶8       Defendants’ motions to dismiss were based on sections 2-615 and 2-619 of the Code (735
     ILCS 5/2-615, 2-619 (West 2010)). A dismissal under section 2-615 admits all well-pleaded
     facts and attacks the legal sufficiency of the complaint and presents the question of whether
     the complaint states a cause of action upon which relief could be granted. 735 ILCS 5/2-615
     (West 2010); La Salle National Bank v. City Suites, Inc., 325 Ill. App. 3d 780, 790 (2001).
     A motion to dismiss under section 2-619, on the other hand, admits the legal sufficiency of
     the complaint but raises defects, defenses, or other affirmative matters that appear on the face
     of the complaint or are established by external submissions that act to defeat the claim.
     Krilich v. American National Bank & Trust Co. of Chicago, 334 Ill. App. 3d 563, 569-70
     (2002); see 735 ILCS 5/2-619(a)(9) (West 2010) (permitting involuntary dismissal where the
     claim “is barred by other affirmative matter avoiding the legal effect of or defeating the


                                                -3-
       claim”). A motion to dismiss under either section 2-615 or section 2-619 admits all well-pled
       allegations in the complaint and reasonable inferences to be drawn from the facts. In re
       Chicago Flood Litigation, 176 Ill. 2d 179, 184 (1997). A reviewing court must interpret all
       of the pleadings and supporting documents in the light most favorable to the nonmoving
       party. Van Meter v. Darien Park District, 207 Ill. 2d 359, 368-69 (2003). Our review of a
       dismissal under either section is de novo. Van Meter, 207 Ill. 2d at 368.

¶9                                 A. Completeness of the Record
¶ 10        FWA contends that the dismissal must be affirmed on the ground that plaintiff has failed
       to supply this court with reports of proceedings from the hearings on defendants’ motions
       to dismiss and plaintiff’s motion to reconsider the dismissal. Under Foutch v. O’Bryant, 99
       Ill. 2d 389 (1984), an appellant has the burden to present a sufficiently complete record of
       the proceedings at trial to support a claim of error; and in the absence of such a record on
       appeal, it will be presumed that the order entered by the trial court conformed with the law
       and had a sufficient factual basis. Foutch, 99 Ill. 2d at 391-92.
¶ 11        Plaintiff responds that reports of proceedings are not available, because there was no
       court reporter at either hearing, but plaintiff could have remedied that circumstance easily.
       In this court, plaintiff could have filed a bystander’s report under Illinois Supreme Court
       Rule 323(c) (Ill. S. Ct. R. 323(c) (eff. Dec. 13, 2005)) or an agreed statement of facts under
       Rule 323(d) (Ill. S. Ct. R. 323(d) (eff. Dec. 13, 2005)). Either could have provided the
       reasons for the trial court’s ruling. Doubts that arise from the incompleteness of the record
       will be resolved against the appellant (Foutch, 99 Ill. 2d at 392), but in this case, our review
       is limited to the pleadings, motions, and supporting documents, which are part of the record.
       Whether the complaint states a claim and whether there is affirmative matter defeating a
       claim are questions of law that we review de novo, without showing deference to the trial
       court’s reasoning. Thus, the incompleteness of the record does not hinder our review, and we
       reject FWA’s assertion that we must affirm the dismissal on that basis.

¶ 12                     B. Negligence and Open and Obvious Conditions
¶ 13       Plaintiff contends that count I states a claim of common-law negligence against FWA.
       To prevail in an action for negligence, the plaintiff must prove that the defendant owed a
       duty, that the defendant breached that duty, and that the defendant’s breach was the
       proximate cause of injury to the plaintiff. Krywin v. Chicago Transit Authority, 238 Ill. 2d
       215, 225 (2010). Unless a duty is owed, there can be no recovery in tort for negligence.
       American National Bank & Trust Co. of Chicago v. National Advertising Co., 149 Ill. 2d 14,
       26 (1992).
¶ 14       The existence of a duty is a question of law that is shaped by public policy
       considerations. LaFever v. Kemlite Co., 185 Ill. 2d 380, 388 (1998). Whether the law will
       impose an obligation of reasonable conduct upon a defendant for the benefit of a plaintiff
       depends on the nature of their relationship. Marshall v. Burger King Corp., 222 Ill. 2d 422,
       441 (2006); LaFever, 185 Ill. 2d at 388-89. The four factors relevant to whether a duty exists
       are (1) the reasonable foreseeability of the plaintiff’s injury, (2) the reasonable likelihood of

                                                 -4-
       the injury, (3) the magnitude of the defendant’s burden of guarding against the injury, and
       (4) the consequences of placing that burden on the defendant. LaFever, 185 Ill. 2d at 389.
¶ 15       Defendants contend that diving into water of unknown depth, including into the middle
       of Petite Lake, presented an “open and obvious” condition, negating any alleged duty to warn
       plaintiff of the danger of diving into shallow water. The open-and-obvious doctrine is an
       exception to the general duty of care owed by a landowner and in Illinois is based on the
       Second Restatement of Torts:
                “ ‘A possessor of land is not liable to his invitees for physical harm caused to them
           by any activity or condition on the land whose danger is known or obvious to them,
           unless the possessor should anticipate the harm despite such knowledge or
           obviousness.’ ” Alqadhi v. Standard Parking, Inc., 405 Ill. App. 3d 14, 17 (2010)
           (quoting Restatement (Second) of Torts § 343A(1) (1965)).
¶ 16       A condition is open and obvious where a reasonable person in the plaintiff’s position,
       exercising ordinary perception, intelligence, and judgment, would recognize both the
       condition and the risk involved. Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430,
       435 (1990); see also Sandoval v. City of Chicago, 357 Ill. App. 3d 1023, 1028 (2005)
       (whether a condition is open and obvious “depends not on plaintiff’s subjective knowledge
       but, rather, on the objective knowledge of a reasonable person confronted with the same
       condition”). Normally, where there is no dispute about the physical nature of the condition,
       the question of whether a condition is open and obvious is a legal one for the court. Wilfong
       v. L.J. Dodd Construction, 401 Ill. App. 3d 1044, 1053 (2010).
¶ 17       In cases involving common open and obvious conditions, such as fire, height, and bodies
       of water, the law generally assumes that persons who encounter these conditions will take
       care to avoid any danger inherent in such conditions. Bucheleres v. Chicago Park District,
       171 Ill. 2d 435, 448 (1996). In Bucheleres, our supreme court discussed three prior opinions
       that had considered whether a landowner owes a duty to persons who are injured while
       diving into natural bodies of water. Bucheleres, 171 Ill. 2d at 453-54. First, in Dowen v. Hall,
       191 Ill. App. 3d 903, 907 (1989), the defendant’s guest dived off a pier into a lake in the dark
       and injured himself when he struck the bottom. In holding that the defendant owed no duty
       to warn of danger or to prevent the plaintiff from diving, the court held, “a reasonable adult
       in plaintiff’s position would recognize that an attempt to execute a head-first flat dive into
       the lake, without prior awareness of the depth of the waters, might result in severe injury
       from hitting one’s head on the lake bottom.” Dowen, 191 Ill. App. 3d at 907. The court ruled
       that the danger involved in “a flat dive off a pier into muddy waters of uncertain depth in a
       natural lake is open and obvious to a reasonable adult.” Dowen, 191 Ill. App. 3d at 907.
¶ 18       Second, in Hagy v. McHenry County Conservation District, 190 Ill. App. 3d 833 (1989),
       the court held that the defendant owed no duty to protect a 15-year-old from the obvious risks
       associated with diving into a swimming hole without checking for changes in the depth of
       the creek from preceding years. Third, in Sumner v. Hebenstreit, 167 Ill. App. 3d 881 (1988),
       the court held that the defendant was not liable for the injuries incurred when the plaintiff
       dived into a water-filled sand pit he had dived into many times before. The Sumner court
       observed that the soft sandy bottom of a body of water “shifts with currents and


                                                 -5-
       disturbances” and that there was nothing unusual or deceptive about the bottom of a sand pit
       that would present a special or indiscernible danger. Sumner, 167 Ill. App. 3d at 886.
¶ 19        Consistent with these decisions, the Bucheleres court concluded that the open-and-
       obvious doctrine applied to the plaintiffs who, in separate incidents, dived headfirst off
       concrete seawalls into shallow parts of Lake Michigan and were injured when their heads
       struck the bottom. On the threshold issue of whether the lake around the seawalls adjacent
       to the beaches was an open and obvious condition of potential hazard, the Bucheleres court
       noted that it was undisputed that the water levels of Lake Michigan fluctuate and that storms
       and strong currents change conditions on the bottom of the lake and the surrounding shores.
       The plaintiffs did not argue that the seawalls were designed for diving; and it was not
       disputed that the intended purpose of seawalls is to hold back the lake waters as part of the
       effort to prevent further erosion of the shoreline. Thus, the court held that “Lake Michigan,
       as a large body of water with uncertain or fluctuating water levels and bottom composition,
       presents open and obvious risks to lakefront patrons who dive from concrete seawalls into
       the lake.” Bucheleres, 171 Ill. 2d at 455-56.
¶ 20        Bucheleres, Dowen, Hagy, and Sumner support our conclusion that the open-and-obvious
       doctrine applies to this case. Plaintiff alleges that he was injured when he dived headfirst
       from a boat into Petite Lake without checking the depth. Plaintiff’s explanation for failing
       to do so is that he expected the water to be of a safe diving depth 400 feet from shore. On
       that basis, plaintiff argues that this case is distinguishable from the other cases, where the
       defendants owed no duty to warn because the divers entered the water closer to shore.
¶ 21        While one might reasonably expect–as a general proposition–that the depth of a natural
       body of water will increase as one travels farther from shore, that expectation does not create
       a reasonable inference that an area far from shore is safe for diving headfirst. As plaintiff
       should have been aware, natural lakes are of an uneven depth and can have fluctuating water
       levels at various points. See, e.g., Dowen, 191 Ill. App. 3d at 907. A reasonable person in
       plaintiff’s position, exercising ordinary perception, intelligence, and judgment, would
       recognize both the condition and the risk involved in attempting to execute a headfirst dive
       into Petite Lake without prior awareness of the depth of the waters. Plaintiff should have
       recognized that a headfirst dive into unplumbed depths might result in severe injury from
       hitting one’s head on the lake bottom, regardless of how far he was from shore. See Dowen,
       191 Ill. App. 3d at 907. Moreover, plaintiff has not alleged that there was anything unusual
       or deceptive about the water’s appearance that would present a special or indiscernible
       danger. See Sumner, 167 Ill. App. 3d at 886. Besides his distance from shore, plaintiff does
       not allege that his observation of the water in the area gave the false impression that it was
       deep enough to dive safely.
¶ 22        In his reply brief, plaintiff claims that the shallow water 400 feet from the shore of Petite
       Lake is analogous to the danger created by a submerged pipe in Jackson v. TLC Associates,
       Inc., 185 Ill. 2d 418 (1998). We disagree. In Jackson, the plaintiff alleged that her 19-year-
       old son died after diving headfirst into the deep end of a man-made swimming area and
       hitting his head on a submerged pipe. Jackson, 185 Ill. 2d at 422. The lake bottom was
       composed of silt, giving the water a murky appearance so that one could not see beneath the
       surface to gauge the water’s depth or detect any submerged obstructions. Jackson, 185 Ill.

                                                  -6-
       2d at 421. The plaintiff’s theory of the case was that her son’s head struck a black plastic
       pipe that the defendant had used to adjust the water level. The pipe was two inches in
       diameter, it was not anchored, and sometimes the defendant removed it from the water and
       placed it on the shore. On the day of the incident, the pipe extended horizontally into the
       deep end of the lake, near where the decedent dived. Jackson, 185 Ill. 2d at 422. Our supreme
       court held that, although it was undisputed that the decedent hit his head on something when
       he dived into the lake, summary judgment was precluded by a genuine issue of fact as to how
       the decedent sustained his injuries: his head could have struck the pipe or the bottom of the
       lake. Jackson, 185 Ill. 2d at 424. The supreme court further held that the appellate court had
       incorrectly concluded as a matter of law that the defendant owed no duty to the decedent
       simply because bodies of water present an open and obvious danger. The court observed:
               “Although a body of water was involved in this case, we do not believe that the open
           and obvious doctrine is dispositive of [the plaintiff’s] claims. Cases addressing the open
           and obvious danger of water are premised on the notion that bodies of water pose two
           particular types of risk: the risk of drowning and the risk of injury from diving into water
           that is too shallow. Neither of those risks is at issue here. The danger in this case,
           according to [the plaintiff], stemmed from the presence of the submerged pipe, whose
           location was variable and could not be detected by swimmers. The existence of that
           hazard had nothing to do with the inherent characteristics of bodies of water; it stemmed
           solely from [the defendant’s] conduct.” Jackson, 185 Ill. 2d at 426.
¶ 23       Considering that (1) the lake was designed, intended, and used solely for recreational
       swimming and (2) the defendant’s personnel periodically moved the submerged pipe, which
       made it impossible for patrons to assess how the risk of diving might change, the court
       determined that the likelihood of injury was great and that the risk of injury was reasonably
       foreseeable. Jackson, 185 Ill. 2d at 426-27. The court further stated that the defendant had
       no justification for imposing such a risk on its patrons, because the pipe had been rendered
       unnecessary by a new plumbing system and the pipe could have been removed simply and
       inexpensively. Jackson, 185 Ill. 2d at 427.
¶ 24       This case is easily distinguished from Jackson, where the defendant owed a duty to
       remove the submerged pipe. As alleged by the plaintiff, the danger in Jackson stemmed only
       from the defendant’s conduct, while this case involves the risk of diving into shallow water,
       which is an inherent characteristic of bodies of water and a danger that defendants did not
       create. Plaintiff does not allege that defendants introduced a submerged foreign object that
       caused the injury or that defendants had anything to do with the placement of the boat before
       he dived. We conclude that the open-and-obvious doctrine applies to this case.

¶ 25                              C. Duty to Warn Against Diving
¶ 26       While a body of water, whether it is natural or artificial, generally is deemed to present
       an open and obvious danger that is considered to be apparent not only to experienced
       swimmers, but even to very young children, the existence of an open and obvious danger is
       not a per se bar to finding that a landowner has a duty to exercise reasonable care. Jackson,
       185 Ill. 2d at 425-26; Bucheleres, 171 Ill. 2d at 449. In determining whether such a duty is


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       owed, a court still must apply the traditional duty analysis, including consideration of the
       likelihood of injury; the reasonable foreseeability of such injury; the magnitude of the burden
       of guarding against the injury; and the consequences of placing that burden on the defendant.
       Jackson, 185 Ill. 2d at 425.
¶ 27       Our supreme court has held that the open-and-obvious doctrine implicates the first two
       factors of the traditional duty analysis: likelihood and foreseeability of injury. Sollami v.
       Eaton, 201 Ill. 2d 1, 15, 17 (2002) (citing Bucheleres, 171 Ill. 2d at 456). First, the law
       generally considers the likelihood of injury slight when the condition at issue is open and
       obvious, because it is assumed that persons encountering the condition will appreciate and
       avoid the risks. Bucheleres, 171 Ill. 2d at 456; Ward v. K mart Corp., 136 Ill. 2d 132, 147
       (1990). In contrast, if a danger is concealed or latent, rather than open and obvious, the
       likelihood of injury increases because people will not be as readily aware of such danger. We
       conclude that, because Petite Lake presents open and obvious risks to patrons, including
       those who dive from boats, the likelihood-of-harm factor in the duty analysis does not weigh
       in favor of imposing a duty to warn.
¶ 28       Second, the foreseeability of harm to others may be greater or lesser depending on the
       degree of obviousness of the risks associated with the condition. While injuries from
       drowning and diving might be anticipated wherever there are lakes, swimming pools, and
       other bodies of water, the legal concept of reasonable foreseeability of injury arising from
       open and obvious conditions takes into account that even young, unsophisticated, or
       immature people are generally assumed to appreciate the risks associated with such
       conditions and therefore exercise care for their own safety. Bucheleres, 171 Ill. 2d at 456-57.
       Moreover, simple foreseeability of injury is not, and has never been, dispositive on the issue
       of whether the law imposes a duty in negligence. Bucheleres, 171 Ill. 2d at 457. We conclude
       that the first two factors of the duty analysis weigh against imposing a duty upon defendants
       to warn against diving or to prevent diving in Petite Lake 400 feet from shore. With the
       narrow forgetfulness-or-distraction exception discussed in cases such as Ward and Deibert,
       the law does not require persons to protect or warn against possible injuries from open and
       obvious conditions, which by their nature carry their own “warning” of potential harm.
       Bucheleres, 171 Ill. 2d at 457. Plaintiff does not contend that the exception applies.
¶ 29       The last two factors in the duty analysis also weigh against imposing a duty on
       defendants under the circumstances of this case. These factors are the magnitude of the
       burden of imposing the duty and the consequences of such burden. The social utility of our
       lake areas is significant and the desirability of keeping them open to the public is an
       important concern in balancing the factors used in the analysis of duty. Bucheleres, 171 Ill.
       2d at 457.
¶ 30       Defendants’ alleged awareness that some patrons anchor their boats and dive headfirst
       without checking the water’s depth into areas of the Chain O’ Lakes far from shore does not
       translate into a legal duty to warn against diving into those waters. To prevent diving into
       shallow waters far from shore, defendants would be asked to (1) measure the water level and
       determine the topography of the lakes’ bottoms, (2) post floating warnings and cordon off
       those areas of the lakes to show where it is unsafe to dive, and (3) reassess the water levels
       and lake bottoms as necessary, depending on their fluctuations. Requiring defendants to

                                                 -8-
       undertake such steps, we believe, would create a practical and financial burden of
       considerable magnitude. Moreover, the consequences of placing such burden on defendants
       might include the curtailment of the public’s access to Petite Lake and the Chain O’ Lakes
       as a whole, to the detriment of the public at large. Therefore, based on our consideration of
       all the relevant factors, we conclude that the trial court did not err in declining to impose a
       tort duty upon defendants. See Bucheleres, 171 Ill. 2d at 458. Even assuming that all of
       plaintiff’s well-pleaded facts are true, we hold that the complaint fails to state a cause of
       action for negligence because plaintiff failed to allege facts to establish that defendants owed
       plaintiff a duty to warn of diving into shallow water far from shore. See 735 ILCS 5/2-615
       (West 2010); La Salle National Bank, 325 Ill. App. 3d at 790.
¶ 31        We note that our conclusion is consistent with Wisconsin decisions. In Heimerl v.
       Waverly Beach, Inc., 2004 WI App 109, ¶ 6, 2004 WL 913833 (unpublished), the plaintiff
       was injured when he ran off the end of a 100-foot-long boat dock and dived headfirst into
       water that was less than 2½ feet deep. Id. ¶¶ 3-4. The plaintiff argued that the dock owner
       owed a duty to warn of the diving risk and that the danger was not open and obvious, because
       the plaintiff “could reasonably conclude that the water at the end of the dock was deep
       enough for diving because of the dock’s length, because the dock included tires or buoys for
       docking boats, and because he observed boaters using the dock, and boats in the water
       between the end of the dock and the shore.” Id. ¶ 4. The Court of Appeals of Wisconsin
       disagreed, reaffirming the well-settled principles that “[a] plaintiff who dives headfirst into
       water of unknown depth cannot recover for his injuries because he has confronted an open
       and obvious danger as a matter of law” and that “[t]he failure to see the bottom of a lake or
       other body of water constitutes an observable danger and, for a diver, is a signal that the
       water may be too shallow for safe diving.” Id. ¶ 6; see also Scheeler v. Bahr, 164 N.W.2d
       310, 313 (Wis. 1969) (where the plaintiff was injured from diving headfirst off a long pier
       into shallow murky water, the court held as a matter of law that “[a] plaintiff must be held
       to knowledge and appreciation of the risk likely to be encountered by plunging head first into
       the unplumbed depths of [a] murky lake”).

¶ 32                              D. Willful and Wanton Conduct
¶ 33       Plaintiff next argues that counts II and III state claims of willful and wanton conduct on
       the part of defendants. There is no separate and independent tort of willful and wanton
       conduct; instead, it is regarded as an aggravated form of negligence. Krywin, 238 Ill. 2d at
       235. It appears that plaintiff has alleged willful and wanton conduct in anticipation of
       defendants’ assertions of tort immunity.
¶ 34       FWA argued for dismissal under section 2-619(a)(9) of the Code based on immunity
       conferred by sections 2-201 and 3-108(a) of the Tort Immunity Act (745 ILCS 10/2-201, 3-
       108(a) (West 2010)). Section 2-201 provides that “[e]xcept as otherwise provided by Statute,
       a public employee serving in a position involving the determination of policy or the exercise
       of discretion is not liable for an injury resulting from his act or omission in determining
       policy when acting in the exercise of such discretion even though abused.” 745 ILCS 10/2-
       201 (West 2010). Section 3-108(a) provides that “[e]xcept as otherwise provided in this Act,


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       neither a local public entity nor a public employee who undertakes to supervise an activity
       on or the use of any public property is liable for an injury unless the local public entity or
       public employee is guilty of willful and wanton conduct in its supervision proximately
       causing such injury.” (Emphasis added.) 745 ILCS 10/3-108(a) (West 2010). Willful and
       wanton acts show “actual or deliberate intent to harm” or, if not intentional, show “an utter
       indifference to or conscious disregard for a person’s own safety or the safety or property of
       others.” Pfister v. Shusta, 167 Ill. 2d 417, 421 (1995); see 745 ILCS 10/1-210 (West 2010).
¶ 35       The Sheriff argued for a section 2-619(a)(9) dismissal on the grounds that he had not
       engaged in willful and wanton conduct under section 1-210 and that he owed no special duty
       that would overcome the immunity conferred by section 2-103 of the Tort Immunity Act (745
       ILCS 10/1-210, 2-103 (West 2010)). Section 2-103 provides that “[a] local public entity is
       not liable for an injury caused by adopting or failing to adopt an enactment or by failing to
       enforce any law.” 745 ILCS 10/2-103 (West 2010).
¶ 36       Plaintiff does not allege that defendants intended to harm him. Rather, plaintiff argues
       that defendants acted with conscious disregard for his well-being. An unintentional willful
       or wanton act is committed under circumstances showing a reckless disregard for the safety
       of others such as, for example, when a party fails, after knowledge of an impending danger,
       to exercise ordinary care to prevent the danger or fails to discover the danger through
       recklessness or carelessness when it could have been discovered by the exercise of ordinary
       care. American National Bank & Trust Co. v. City of Chicago, 192 Ill. 2d 274, 285 (2000).
       “ ‘More than mere inadvertence or momentary inattentiveness which may constitute ordinary
       negligence is necessary for an act to be classified as wilful and wanton misconduct.’ ” Oelze
       v. Score Sports Venture, LLC, 401 Ill. App. 3d 110, 122 (2010) (quoting Stamat v. Merry,
       78 Ill. App. 3d 445, 449 (1979)). The party committing the willful and wanton act or failure
       to act “ ‘must be conscious of his conduct, and, though having no intent to injure, must be
       conscious, from his knowledge of the surrounding circumstances and existing conditions,
       that his conduct will naturally and probably result in injury.’ ” Oelze, 401 Ill. App. 3d at 122-
       23 (quoting Bartolucci v. Falleti, 382 Ill. 168, 174 (1943)).
¶ 37       Like in this case, the defendants in Bucheleres raised an affirmative defense of
       governmental tort immunity that provides immunity from actions sounding in negligence but
       not for willful and wanton conduct. Bucheleres, 171 Ill. 2d at 463. Our supreme court held
       that it need not consider issues involving statutory immunity or the sufficiency of the
       allegations of willful and wanton conduct, because the court’s disposition of the case was
       premised on the absence of a common-law duty and the open-and-obvious doctrine.
       Bucheleres, 171 Ill. 2d at 463. For the same reasons, we need not decide whether tort
       immunity is affirmative matter defeating plaintiff’s allegations of willful and wanton
       conduct.

¶ 38                                  III. CONCLUSION
¶ 39       For the reasons stated, the trial court did not err in dismissing the second amended
       complaint under section 2-615 of the Code for failure to state a claim upon which relief could
       be granted. See 735 ILCS 5/2-615 (West 2010). Under the very unfortunate circumstances


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       of this case, defendants did not owe plaintiff a duty to warn of the risk of diving headfirst
       from a boat into shallow water far from shore. The dismissal of plaintiff’s second amended
       complaint by the circuit court of Lake County is affirmed.

¶ 40      Affirmed.




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