Panel Upholds $21.5M Verdict Over 6-Year-Old’s Drowning

By Y. Peter Kang Law360 (September 4, 2020, 9:01 PM EDT) — An Illinois appellate panel has affirmed a jury’s $21.5 million award in a suit accusing two park districts of causing the drowning death of a 6-year-old boy at a day camp, saying the verdict was not excessive and a finding of willful and wanton conduct was backed by evidence.

A three-judge Appellate Court panel on Thursday upheld the Cook County jury’s December 2018 verdict in a suit over the 2014 death of Michal Duda, who drowned at a Bridgeview Park District-operated swimming pool during a summer day camp operated by Justice Park District. The suit filed by estate administrator Andrzej Kolodziej claims the defendants committed willful and wanton misconduct by allowing the boy, who did not know how to swim, to play in the pool unsupervised and without any flotation devices.

Prior to the verdict, Bridgeview settled out of the case for $3 million, leaving Justice on the hook for $18.5 million, according to the opinion.

On appeal, Justice argues that its conduct was not willful and wanton as a matter of law because it presented evidence showing it took numerous precautions to avoid the risk of injury. The park district said it had three certified lifeguards on duty, required every camper to take a swim test and required nonswimmers to use flotation devices it provided.

The panel, which noted that public entities such as Justice are entitled to statutory immunity unless it can be proved their actions were willful and wanton, said the park district made a conscious decision to allow very young campers who could not swim to enter the main pool.

“Although Justice was aware of the extreme risk of drowning for young campers like Michal, who could not swim or stand anywhere in the pool’s shallow area with their mouths or noses above the water level, Justice still allowed about 8 to 10 of its non-swimming campers into the pool, 4 of whom were from the very young 5-7-year-old group to which Michal belonged, without requiring them to wear an authentic lifejacket and be accompanied in the water at all times by an adult,” the panel said.

The appeals court said Justice knew that Michal couldn’t swim and knew that he had been reprimanded for taking off his “water wings” flotation devices multiple times, yet it didn’t have a camp counselor within arm’s length of Michal or other nonswimming young campers.

“Viewing the totality of the evidence of Justice’s conduct in the light most favorable to plaintiff, the evidence did not so overwhelmingly favor Justice that no contrary verdict based on that evidence could ever stand,” the panel said.

In a separate issue, Justice contends the verdict was excessive as it was more than three times the average verdict for a child wrongful death case and “may have resulted from the jury’s passion and prejudice against the defendants,” according to the opinion.

The panel disagreed, saying that Illinois courts “have traditionally declined to make comparisons with the amounts of damages awarded in other cases” and that it was up to the jury to determine the appropriate amount of damages.

“We cannot say that the present award to the estate of Michal Duda was the result of prejudice or passion, shocks the conscience, or lacks support in the evidence,” the panel said. “The record shows that Michal’s family suffered a devastating loss in a very tragic manner.”

An attorney for the estate, Brad Cosgrove, said they are satisfied with the outcome.

“Justice has once again been done for this family,” he said in a statement. “Although nothing will bring back little Michal, the courts have demonstrated parties who commit wrongful acts must be held accountable.”

An attorney for Justice declined to comment.

Judges Bertina Lampkin, Robert E. Gordon and Eileen O’Neill Burke sat on the panel for the Appellate Court.

Kolodziej is represented by Bradley M. Cosgrove, Charles R. Haskins and Tracy A. Brammeier of Clifford Law Offices PC.

Justice is represented by Daniel W. McGrath, Carlton D. Fisher and Elyse Ryan of Hinshaw & Culbertson LLP.

The case is Kolodziej v. Justice Park District et al., case number 1-19-1032, in the Appellate Court of Illinois, First District.

–Editing by Daniel King.

Juliene Hefter

Juliene is the Executive Director/CEO of AOAP. She has a background in running and operating diverse aquatic facilities and venues and is a national and international speaker on a variety of topics. She is also an expert witness/consultant.

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