OTTAWA – A lawsuit will continue against a Will County city over the drowning deaths of two children in the Kankakee River, a state appeals court has ruled.
On March 1, a three-justice panel of the Illinois Third District Appellate Court sent back to Will County court a wrongful death suit brought by a mother whose two children died when they swept under the water while at a city owned park, adjacent to the city-owned dam in the Kankakee River.
In the filing, Third District Justices Mary McDade, Robert L. Carter and Tom M. Lytton dismissed the city's appeal. The city had submitted a certified question, asking the judges if Illinois law generally granting local governments immunity from such lawsuits extends to the circumstances of this particular case.
Will County Circuit Judge Raymond Rossi had rejected their arguments.
The appellate court rejected the question, saying "any answer would be advisory and provisional."
The case involves Beatriz Adame, who filed suit against the city for wrongful death after her two children, Abigail and Eder Arroyo, drowned in the Kankakee River in May 2016. The children were pulled beneath the river surface by an "underwater vortex" near the Wilmington Dam, court records said.
Adame argued that because the city owned and maintained the South Island Park, which was adjacent to the Wilmington Dam, it should be held liable for the children's death.
The city, however, argued that fishing licenses were made available for use of the dam but not for swimming. Adding that because they were aware of people entering the river from the park, and the underground vortex beneath the surface of the river, warning signs had been placed at certain spots in the park.
In March 2017, the city filed a motion to dismiss asserting failure to state a cause of action and absolute immunity. Specifically, the city claimed that it did not owe a duty to Adame or the estate "because she failed to show that the children were 'intended' users of the river and the underwater vortex was an open and obvious danger."
In their ruling, the appeals justices said the city's attempt to use the certified question to appeal the judge's ruling cannot succeed, because it would place the appellate justices in the position of needing to determine who owned the precise area of the river in which the children drowned. While the river is generally considered to be owned by the state, the city owns the park and the dam itself.
The justices said the rule under which the city appealed "was never intended to serve as a vehicle to appeal interlocutory orders involving little more than an application of the law to the facts of a specific case.'”