967 N.E.2d 393 (2012)
359 Ill. Dec. 663
Nikolas BEZANIS, Plaintiff-Appellant,
v.
FOX WATERWAY AGENCY and The Sheriff of Lake County, Defendants-Appellees.
No. 2-10-0948.
Appellate Court of Illinois, Second District.
March 15, 2012.
*396 Daniel F. Konicek, James P. Lynch, Karli L. Moore, Konicek & Dillon, P.C., Geneva, for Nikolas Bezanis.
Patrick J. Ruberry, Lichfield Cavo, LLP, Chicago, for Fox Waterway Agency.
Michael J. Waller, Lake County State's Attorney, Waukegan (Carla N. Wyckoff, Assistant State's Attorney, of counsel), for Sheriff of Lake County.

OPINION
Justice BURKE delivered the judgment of the court, with 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.
¶ 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 *397 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, 259 Ill.Dec. 259, 758 N.E.2d 382 (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, 268 Ill.Dec. 531, 778 N.E.2d 1153 (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 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, 223 Ill.Dec. 532, 680 N.E.2d 265 (1997). A reviewing court must interpret all of the pleadings and supporting documents in the light most favorable to the nonmoving party. Van *398 Meter v. Darien Park District, 207 Ill.2d 359, 368-69, 278 Ill.Dec. 555, 799 N.E.2d 273 (2003). Our review of a dismissal under either section is de novo. Van Meter, 207 Ill.2d at 368, 278 Ill.Dec. 555, 799 N.E.2d 273.

¶ 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, 76 Ill.Dec. 823, 459 N.E.2d 958 (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, 76 Ill. Dec. 823, 459 N.E.2d 958.
¶ 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, 76 Ill. Dec. 823, 459 N.E.2d 958), 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, 345 Ill.Dec. 1, 938 N.E.2d 440 (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, 171 Ill.Dec. 461, 594 N.E.2d 313 (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, 235 Ill.Dec. 886, 706 N.E.2d 441 (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, 305 Ill.Dec. 897, 856 N.E.2d 1048 (2006); LaFever, 185 Ill.2d at 388-89, 235 Ill.Dec. 886, 706 N.E.2d 441. The four factors relevant to whether a duty exists are (1) the reasonable foreseeability of the plaintiff's injury, (2) the reasonable likelihood of 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, 235 Ill.Dec. 886, 706 N.E.2d 441.
*399 ¶ 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, 345 Ill.Dec. 145, 938 N.E.2d 584 (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, 152 Ill. Dec. 552, 566 N.E.2d 239 (1990); see also Sandoval v. City of Chicago, 357 Ill.App.3d 1023, 1028, 294 Ill.Dec. 310, 830 N.E.2d 722 (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, 341 Ill.Dec. 301, 930 N.E.2d 511 (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, 216 Ill.Dec. 568, 665 N.E.2d 826 (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, 216 Ill.Dec. 568, 665 N.E.2d 826. First, in Dowen v. Hall, 191 Ill.App.3d 903, 907, 138 Ill.Dec. 933, 548 N.E.2d 346 (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, 138 Ill.Dec. 933, 548 N.E.2d 346. 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, 138 Ill.Dec. 933, 548 N.E.2d 346.
¶ 18 Second, in Hagy v. McHenry County Conservation District, 190 Ill.App.3d 833, 137 Ill.Dec. 453, 546 N.E.2d 77 (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, 118 Ill.Dec. 888, 522 N.E.2d 343 (1988), the court held that the defendant was not liable for the injuries incurred when the plaintiff dived *400 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 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, 118 Ill.Dec. 888, 522 N.E.2d 343.
¶ 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, 216 Ill.Dec. 568, 665 N.E.2d 826.
¶ 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 expectas a general propositionthat 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, 138 Ill.Dec. 933, 548 N.E.2d 346. 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, 138 Ill. Dec. 933, 548 N.E.2d 346. 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, 118 Ill.Dec. 888, 522 N.E.2d 343. 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 *401 Jackson v. TLC Associates, Inc., 185 Ill.2d 418, 235 Ill.Dec. 905, 706 N.E.2d 460 (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, 235 Ill.Dec. 905, 706 N.E.2d 460. 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.2d at 421, 235 Ill. Dec. 905, 706 N.E.2d 460. 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, 235 Ill.Dec. 905, 706 N.E.2d 460. 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, 235 Ill. Dec. 905, 706 N.E.2d 460. 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, 235 Ill.Dec. 905, 706 N.E.2d 460.
¶ 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, 235 Ill.Dec. 905, 706 N.E.2d 460. 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, 235 Ill.Dec. 905, 706 N.E.2d 460.
¶ 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 *402 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, 235 Ill.Dec. 905, 706 N.E.2d 460; Bucheleres, 171 Ill.2d at 449, 216 Ill.Dec. 568, 665 N.E.2d 826. In determining whether such a duty is 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, 235 Ill.Dec. 905, 706 N.E.2d 460.
¶ 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, 265 Ill.Dec. 177, 772 N.E.2d 215 (2002) (citing Bucheleres, 171 Ill.2d at 456, 216 Ill.Dec. 568, 665 N.E.2d 826). 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, 216 Ill.Dec. 568, 665 N.E.2d 826; Ward v. K mart Corp., 136 Ill.2d 132, 147, 143 Ill.Dec. 288, 554 N.E.2d 223 (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, 216 Ill.Dec. 568, 665 N.E.2d 826. 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, 216 Ill.Dec. 568, 665 N.E.2d 826. 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, 216 Ill.Dec. 568, 665 N.E.2d 826. 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 *403 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, 216 Ill.Dec. 568, 665 N.E.2d 826.
¶ 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 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, 216 Ill.Dec. 568, 665 N.E.2d 826. 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, 259 Ill.Dec. 259, 758 N.E.2d 382.
¶ 31 We note that our conclusion is consistent with Wisconsin decisions. In Heimerl v. Waverly Beach, Inc., 2004 WI App 109, ¶ 6, 273 Wis.2d 784, 680 N.W.2d 832, 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, 41 Wis.2d 473, 164 N.W.2d 310, 313 (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. *404 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, 345 Ill.Dec. 1, 938 N.E.2d 440. 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, 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, 212 Ill.Dec. 668, 657 N.E.2d 1013 (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, 248 Ill.Dec. 900, 735 N.E.2d 551 (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, 339 Ill.Dec. 596, 927 N.E.2d 137 (2010) (quoting Stamat v. Merry, 78 Ill.App.3d 445, 449, 33 Ill.Dec. 808, 397 N.E.2d 141 (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, 339 Ill.Dec. 596, 927 N.E.2d 137 (quoting Bartolucci v. Falleti, 382 Ill. 168, 174, 46 N.E.2d 980 (1943)).
¶ 37 Like in this case, the defendants in Bucheleres raised an affirmative defense of *405 governmental tort immunity that provides immunity from actions sounding in negligence but not for willful and wanton conduct. Bucheleres, 171 Ill.2d at 463, 216 Ill.Dec. 568, 665 N.E.2d 826. 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, 216 Ill.Dec. 568, 665 N.E.2d 826. 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 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.
Presiding Justice JORGENSEN and Justice BIRKETT concurred in the judgment and opinion.


252 N.W.2d 248 (1977)
Oscar REPO, Relator,
v.
CAPITOL ELEVATOR COMPANY, DIVISION OF INTERNATIONAL MULTIFOODS CORPORATION, et al., Employer and Insurer, The Prudential Insurance Company of America, intervenor, Respondent,
Oscar REPO, Appellant,
v.
The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Respondent.
Nos. 46386, 46511.
Supreme Court of Minnesota.
March 18, 1977.
Rehearing Denied April 28, 1977.
*249 Paul J. Louisell, Duluth, for relator-appellant.
Van Evera, Mundt, Koskinen, Clure & Andrew and Thomas F. Andrew, Duluth, for intervenor-respondent.
Heard before ROGOSHESKE, PETERSON and MacLAUGHLIN, JJ., and considered and decided by the court en banc.
MacLAUGHLIN, Justice.
Oscar Repo, plaintiff-employee, appeals from a district court judgment in favor of Prudential Insurance Company (Prudential) in an action to recover disability benefits allegedly due to Repo under a group sickness and accident policy. Repo also seeks review by certiorari of an order of the Workers' Compensation Board (now Worker's Compensation Court of Appeals) awarding Prudential, as intervenor, a portion of Repo's workers' compensation settlement with his employer, Capitol Elevator Company (Capitol). The matters were consolidated for hearing before this court. For reasons stated herein, we affirm both the district court and the Workers' Compensation Board.
On Sunday, September 9, 1973, Repo suffered a heart attack while at his home. He was hospitalized for more than 3 weeks and disabled a considerably longer period of time as a result of the attack. Since Repo worked for Capitol in a grain elevator and had a prior history of emphysema, the heart attack was arguably work related.
As an employee of Capitol, Repo was covered under a group sickness and accident policy issued by Prudential. This policy provided for payment of medical expenses and benefits for disability incurred as a result of sickness or accident not covered by the Workers' Compensation Act. Workers' compensation coverage was provided by Liberty Mutual Insurance Company (Liberty Mutual).
In December 1973, Repo filed a claim with the Workers' Compensation Division, alleging that the heart attack was work related. Capitol and Liberty Mutual denied liability and hearings were held. On July 31, 1974, before the hearings were complete, Repo entered into a settlement agreement with Capitol and Liberty Mutual. The agreement provided for a lump sum payment of $12,000 in settlement of all claims Repo had under the Workers' Compensation Act. Although Repo had requested medical and disability benefits in his petition, the settlement agreement purported to pay $12,000 in disability only.
While the workers' compensation claim was pending, Repo also sought benefits under the sickness and accident policy with Prudential. On August 3, 4 days after the settlement with Capitol and Liberty Mutual, Repo signed an agreement with Prudential *250 whereby Prudential agreed to pay Repo's medical expenses (totaling $2,626.84) but with a provision that Prudential would be reimbursed
"* * * if at any later date medical and hospital expenses are paid under any Workmen's Compensation Law or Act for this disability, or any settlement of claim for such medical and hospital expenses is made or any payment is made to avoid a claim for such medical and hospital expenses or a settlement of such claim * * *."
Prudential was not informed of the settlement with Capitol and Liberty Mutual when it signed this agreement.[1]
Repo's settlement with Capitol and Liberty Mutual was submitted to the Workers' Compensation Division on August 19, 1974, but failed to set forth the expenses for medical treatment and care. Since Repo's claim petition had alleged certain medical expenses, the division made inquiry of Repo's attorney and learned that Prudential had made certain payments. The division then notified Prudential of the proposed settlement and it petitioned for intervention, claiming that it was entitled to reimbursement. The commission allowed Prudential to intervene, upheld the settlement with Capitol and Liberty Mutual, and placed $2,626.84 of the settlement in escrow pending a determination of Prudential's claim. The compensation judge held a hearing on January 6, 1975, on the merits of Prudential's claim and entered a decision favorable to Repo. The board reversed this decision on October 10, 1975, and ordered the sum held in escrow to be paid to Prudential.
While Prudential's intervention claim was pending before the board, Repo brought an action against Prudential in the district court to recover disability benefits totaling $1,950. The district court dismissed the action on September 19, 1975.
Prudential argues that when an insurer pays benefits under a policy which excludes injury or sickness covered by the Workers' Compensation Act, and the employee, without the insurer's consent, makes a settlement with the workers' compensation carrier arising out of the same sickness for which benefits were paid, the insurer should be reimbursed. It is clear that if Repo had litigated his claim and the commission ultimately found in his favor, Prudential would be entitled to reimbursement from the proceeds of the award. Lemmer v. Batzli Electric Co., 267 Minn. 8, 125 N.W.2d 434 (1963); Equitable Life Assurance Society v. Bachrach, 265 Minn. 83, 120 N.W.2d 327 (1963). Repo asserts that these cases do not apply where the employee settles his claim, citing Tatro v. Hartmann's Store, 295 Minn. 282, 204 N.W.2d 125 (1973). In Tatro, the employee had settled his workers' compensation claim for the amount by which his medical expenses exceeded the payments received from his private health insurer. The private health insurer had not been notified of the workers' compensation proceeding and sought to intervene after the settlement had been approved. We held that under the circumstances there present it would be inequitable to the employee to allow reimbursement since the settlement was obviously based on an assumption that the private health insurer would not seek reimbursement. Of particular significance is the following language:
"We believe, however, that procedures should be instituted by the commission to prevent the recurrence of the circumstances presented in this appeal. The payments made on employee's behalf by relators were specifically referred to in employee's claim petition. Therefore, all of the parties and the commission were aware that relators might have some interest in the proceeding. Whatever statutory rights relators may have had were nevertheless ignored in the settlement *251 and also ignored by the commission's approval of the settlement. One of the basic principles of workmen's compensation legislation is `measurably to place upon industry the burden of the economic loss resulting from the deaths and injuries of workmen engaged in industry.' * * * If private insurers pay medical bills for work-related injuries, the burden is shifted from industry to the subscribers of private health programs." 295 Minn. 286, 204 N.W.2d 128.
The obvious import of this language is that normally a sickness and accident insurer who pays benefits under a policy which excludes injuries covered by workers' compensation is entitled to reimbursement from the proceeds of a settlement. This is consistent with our earlier decision in Lemmer v. Batzli Electric Co. supra. If we were to embrace the distinction Repo suggests, an employee in his position would always strive to settle his workers' compensation claim, thus depriving the sickness and accident insurer of reimbursement and rendering our decision in Lemmer a nullity. Because Prudential can't bring a workers' compensation claim in its own name, the only way to protect its rights is to allow intervention and reimbursement from the proceeds of the settlement.
Following our dicta in Tatro, the Workers' Compensation Division established procedures which resulted in the notification to Prudential in this case of the proposed settlement, and to Prudential's intervention. Unlike the situation in Tatro, there can be no claim by Repo that he was unaware of Prudential's position in this matter. If anything, the opposite is true. Whether intentional or not it appears the settlement of the workers' compensation claim was concealed from Prudential at the time of the payments to Repo from Prudential. It was only because the commission would not approve the settlement unless all interested parties were notified, as required by Tatro, that Prudential learned of the same. We therefore find none of the potential inequity in granting reimbursement that was present in Tatro.
We believe that in any case of doubtful liability the sickness and accident insurer should immediately pay benefits on the assumption that the sickness or injury is covered by its policy, and later seek reimbursement if there is a successful workers' compensation proceeding. Our holding in this and earlier cases fully protects its right to do so. As a practical matter this will generally mean that the sickness and accident insurer will have to be included in any settlement negotiations. This seems fair since its rights are at stake just as are the employee's. The employee can, of course, choose to settle without the sickness and accident insurer's consent, but the insurer will then be entitled to full reimbursement from the proceeds of the settlement.
When Repo received payment for the medical expenses from Prudential, he signed a contract agreeing to reimburse Prudential if any settlement of a claim for medical and hospital expenses under the Workers' Compensation Act was made. Repo argues that since the workers' compensation settlement was for disability only, it was not within the scope of the agreement with Prudential. We do not follow the logic of this argument at all. In his claim petition Repo asked for medical and hospital expenses. By the settlement, he released his claim for such expenses. That is clearly a settlement of the claim for hospital and medical expenses, regardless of the label attached to it. It is equally clear that the agreement with Prudential was not void for lack of consideration. Since a bona fide dispute existed regarding coverage, Prudential's agreement to pay benefits constituted consideration. Therefore, while Prudential is entitled to reimbursement even without an agreement under our Tatro decision, it is also entitled to reimbursement by virtue of its agreement with Repo.
What has been said about reimbursement of the medical expenses also dictates that Repo's claim for disability benefits under the policy with Prudential was properly denied by the district court. Both decisions must therefore be affirmed.
Affirmed.
NOTES
[1]  The agreement signed by Repo and his attorney also contained the following statement: "I filed a claim with Workman's Compensation; however, no decision has been made by them as yet." This in spite of the fact that 4 days earlier Repo had settled his workers' compensation claim with Capitol and Liberty Mutual.


644 F.2d 540
Robert H. GRAY, Jr., Plaintiff-Appellant,v.CHEVRON OIL COMPANY, Defendant-Appellee.
No. 78-2226

Summary Calendar.
United States Court of Appeals,Fifth Circuit.
May 8, 1981.
Christopher J. Roy, T. Gerald Henderson, James J. Brady, Alexandria, La., for plaintiff-appellant.
McLoughlin, Barranger, Provosty & Melancon, Lloyd C. Melancon, New Orleans, La., for Chevron Oil Co.
Before BROWN, TJOFLAT and FRANK M. JOHNSON, Jr., Circuit Judges.
PER CURIAM:

1
Upon remand directed by us, Gray v. Chevron Oil Company, 631 F.2d 1263 (5th Cir. 1980), the District Court reconsidered the case in the light of Blanchard v. Engine and Gas Compressor Services, Inc., 613 F.2d 65 (5th Cir. 1980), and correctly granted summary judgment to Chevron Oil Company holding it to have been a Louisiana statutory employer.  AFFIRMED.


993 So.2d 534 (2008)
C.K.
v.
DEPARTMENT OF CHILDREN & FAMILIES.
No. 4D08-1704.
District Court of Appeal of Florida, Fourth District.
October 20, 2008.
Decision without published opinion. Affirmed.


                             UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53

           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                            Submitted August 23, 2006
                             Decided August 23, 2006

                                      Before

                      Hon. WILLIAM J. BAUER, Circuit Judge

                      Hon. RICHARD A. POSNER, Circuit Judge

                      Hon. DIANE P. WOOD, Circuit Judge

No. 05-3650

UNITED STATES OF AMERICA,                Appeal from the United States District
    Plaintiff-Appellee,                  Court for the Northern District of Illinois,
                                         Eastern Division
                 v.
                                         No. 04-CR-930-1
HARVEY TURNER,
    Defendant-Appellant.                 Amy J. St. Eve,
                                         Judge.

                                    ORDER

       Harvey Turner pleaded guilty without a plea agreement to possession of a
firearm by a felon, 18 U.S.C. § 922(g)(1), possession of crack cocaine with intent to
distribute, 21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance of a
drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). At sentencing the district court
concluded—with Turner’s full agreement—that Turner is a career offender under
U.S.S.G. § 4B1.1 and that, accordingly, he faced a guidelines imprisonment range of
292 to 365 months. The court sentenced Turner to a total of 292 months. Turner
filed a notice of appeal, but his appointed counsel now seeks to withdraw under
Anders v. California, 386 U.S. 738 (1967), because he is unable to discern a
nonfrivolous issue to pursue. Counsel’s supporting brief is facially adequate, and
No. 05-3650                                                                      Page 2

Turner has responded to our invitation under Circuit Rule 51(b) to comment on
counsel’s submission. Thus we limit our review to those potential issues identified
in counsel’s brief and Turner’s Rule 51(b) response. See United States v. Schuh, 289
F.3d 968, 973-74 (7th Cir. 2002).

       Counsel first considers whether Turner might argue that Anthony Schulman,
the second in a series of three lawyers appointed to represent Turner in the district
court, induced his guilty pleas through deficient performance. Shortly after
pleading guilty Turner submitted a pro se motion asking that he be permitted to
withdraw his guilty pleas and that Schulman be discharged; the district court
replaced Schulman with new counsel but denied without prejudice Turner’s motion
to withdraw his pleas. The new lawyer—who continues to represent Turner
here—ultimately concluded that Turner lacked good grounds to withdraw his guilty
pleas and thus never renewed Turner’s motion. Turner, therefore, effectively
ratified his guilty pleas by passing over the opportunity to challenge them with the
assistance of counsel other than Schulman, and so a claim that Schulman’s
inadequate performance was the reason for the pleas would likely be frivolous. See
Doe v. United States, 51 F.3d 693, 700-01 (7th Cir. 1995) (holding that defendant
reaffirms guilty plea by retracting motion to withdraw plea); United States v.
Darling, 766 F.2d 1095, 1101 (7th Cir. 1985). Moreover, as we have instructed, it is
usually better to bring a claim of ineffective assistance of counsel in a collateral
proceeding under 28 U.S.C. § 2255 where the record can be further developed. See
Massaro v. United States, 538 U.S. 500, 504-05 (2003); United States v. Rezin, 322
F.3d 443, 445 (7th Cir. 2003).

       Counsel next considers whether Turner could argue that 292 months in
prison is an unreasonable sentence because the application of the career-offender
guideline to his particular case overstates the seriousness of his prior convictions.
At sentencing Turner did not dispute that his guidelines range was 292 to 365
months, but he argued that a prison sentence within the range would overstate his
criminal history because “he had, essentially, a street-level-type hustler role.” After
noting the advisory nature of the guidelines, see United States v. Booker, 543 U.S.
220 (2005), the district court considered the factors identified in 18 U.S.C. § 3553(a).
The court specifically explained that criminal history is a factor to be weighed under
§ 3553(a), and that Turner has “quite the criminal history with violent acts dating
back to the age of 17” that have included “batteries and sale of drugs and
handguns.” The court concluded that the guidelines range was appropriate, and
imposed a term at the lowest point within that range. The term is presumptively
reasonable, see United States v. Paulus, 419 F.3d 693, 700 (7th Cir. 2005); United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), and counsel has been unable
to construct any argument to undermine that presumption. We therefore agree
with counsel that it would be frivolous to argue that Turner’s overall prison
sentence is unreasonable.
No. 05-3650                                                                   Page 3

       In his Rule 51(b) response Turner suggests one other possible avenue for
appeal not already discussed by counsel: that his guilty pleas were involuntary
apart from attorney Schulman’s performance. Turner does not contend that the
district court failed to comply with Rule 11 of the Federal Rules of Criminal
Procedure, and it is clear from the record that the court did so. Turner’s only
contention is that he was “confused” during his plea colloquy; as evidence of his
confusion he directs our attention to a point in the transcript where the court asked
him the ages of his five children and he responded: “I’m confused right now. I don’t
know. 11, 5, 5, 4, 6.” But this is the only point during the entire plea colloquy
where Turner voiced confusion, and his effort to equate confusion about his
children’s ages with confusion about the charges or his guilty pleas is plainly
frivolous.

     For the above reasons, we GRANT counsel’s motion to withdraw and
DISMISS the appeal.


990 F.2d 623
U.S.v.Chen
NO. 92-1458
United States Court of Appeals,Second Circuit.
Jan 14, 1993

1
Appeal From:  E.D.N.Y.

2
AFFIRMED.


431 So.2d 1319 (1983)
Nolan L. SHORY
v.
E.E. PEAVY.
Civ. 3592.
Court of Appeals of Alabama.
April 27, 1983.
Nolan L. Shory, pro se.
William R. Justice of Harrison, Conwill, Harrison & Justice, Columbiana, for appellee.
EDWARD N. SCRUGGS, Retired Circuit Judge.
The defendant has appealed from a monetary judgment rendered against him by the circuit court for surveyor fees found to be due to the plaintiff.
The formal requirements of an appellant's brief in a civil appeal to an appellate court are enumerated as follows:
"(1) A table of contents, with page references, and a table of cases (alphabetically arranged), statutes and other authorities cited, with references to the pages of the brief where they are cited;
"(2) A statement of the case (The statement shall first indicate briefly the nature of the case, the course of proceedings and its disposition in the court below);
"(3) A statement of the issues presented for review with principal authorities of law supporting each issue presented;
"(4) A full statement of facts relevant to the issues presented for review, with appropriate references to the record (see sub-division (e));
"(5) An argument. (The argument may be preceded by a summary. The argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on); and,
"(6) A short conclusion stating the precise relief sought."
Rule 28(a), A.R.A.P.
Here, the original appellant's brief was filed on March 12, 1983. He was notified by the clerk of this court on March 16, 1983 that his brief was defective under several specified appellate rules, and he was granted seven days within which to correct it. His subsequent brief was filed on March 21, 1983. Therein, the requisites of subsections (2) through (5) of Rule 28(a), supra, were ignored inasmuch as they were combined and consolidated into one unit and are so commingled that it is difficult, if not impossible, to pinpoint with any particularity the issues which the appellant raised therein. The unsigned brief, as to those particular subsections, consists solely of an argument which is only based upon the facts. The only citation of any legal authority or precedent by the appellant was "Section 35, Code of Alabama." Such is an inadequate legal citation and is the equivalent of no citation. William Wilson Enterprises, Inc. v. Napier, 395 So.2d 89 (Ala.Civ. App.1981). There are hundreds of sections *1320 numbered "35" in the latest code of this state. Where an appellant fails to cite any authority, we may affirm for it is neither our duty nor function to perform all of the legal research for an appellant. Welch v. Turner, 411 So.2d 143 (Ala.Civ.App.1983); William Wilson Enterprises, Inc. v. Napier, supra; Blair v. York Engineering Co., 380 So.2d 878 (Ala.Civ.App.1980). In short, the last brief of the appellant fails in many ways to substantially comply with Rule 28(a). Thoman Engineers, Inc. v. McDonald, 57 Ala.App. 287, 328 So.2d 293 (1976).
While this case could be summarily affirmed because of such major deficiencies in the appellant's brief, out of deference to the appellant we have attempted to resolve the various inadequacies of the brief. McNeill v. McNeill, 332 So.2d 387 (Ala.Civ. App.1976). As to the merits of the case, we find no reversible error relative to any discernible issue which was probably attempted to be raised by the appellant. The ore tenus rule applies. The evidence supported the holding of the trial court, and it was not palpably wrong. McGee v. Firestone Tire & Rubber Co., 394 So.2d 35 (Ala.Civ.App. 1981). No error resulted from the introduction of the surveyor's plat into evidence. City of Prichard v. Lasner, 406 So.2d 990 (Ala.Civ.App.1981); Raines v. Williams, 397 So.2d 86 (Ala.1981); Blair v. York Engineering Co., supra.
We affirm.
The foregoing opinion was prepared by retired Circuit Judge EDWARD N. SCRUGGS, serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama 1975, and this opinion is hereby adopted as that of this court.
AFFIRMED.
All the Judges concur.


     Case: 16-70012      Document: 00513745619         Page: 1    Date Filed: 11/03/2016

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                      No. 16-70012
                                                                                Fifth Circuit

                                                                                FILED
                                                                        November 3, 2016

TRAVIS TREVINO RUNNELS,                                                    Lyle W. Cayce
                                                                                Clerk
              Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee

                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:12-CV-74

Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:*
       Travis Trevino Runnels was convicted of capital murder and sentenced
to death. He seeks a certificate of appealability (COA) from the district court’s
denial of his petition for writ of habeas corpus. Because reasonable jurists
would not find that the district court’s assessment of his ineffective assistance
of counsel claims is debatable or wrong, we deny his application.

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 16-70012     Document: 00513745619     Page: 2   Date Filed: 11/03/2016

                                  No. 16-70012
                               BACKGROUND
      Runnels was charged with the 2003 murder of Stanley Wiley, a civilian
supervisor at the Texas Department of Criminal Justice’s (TDCJ) Clements
Unit boot factory. During his work shift as a janitor at the boot factory, Runnels
approached Wiley from behind, pulled his head back, and slit his throat. Wiley
later died from the injury. The Texas Court of Criminal Appeals (“CCA”)
summarizes the facts of the case:
            Appellant did not enjoy working as a janitor at the prison
            boot factory. On the morning of the day of the murder, he
            expressed anger at the fact that he had not been transferred
            to being a barber as he had requested. He told fellow inmate
            Bud Williams that he was going to be “shipped one way or
            another” and that “he was going to kill someone.” Appellant
            said that he would kill Wiley if Wiley said anything to him
            that morning. Appellant told another inmate, William
            Gilchrist, that he planned to hold the boot-factory plant
            manager hostage in the office after the other correctional
            officers had left. Finally, after appellant had arrived at the
            boot factory, he told fellow inmate Phillip Yow that he was
            going to do something.

            During the first shift at the boot factory, Appellant
            approached Wiley, raised a knife, tilted Wiley’s head back,
            and cut his throat. Appellant then wiped the knife with a
            white rag and walked back toward the trimming tables.
            When Yow later asked appellant why he had attacked Wiley,
            appellant said, “It could have been any offender or inmate,
            you know, as long as they was white.” In response to Yow’s
            explanation that appellant could get the death penalty if
            Wiley died, appellant responded, “[a] dead man can’t talk.”

            Wiley did die from the injury. It was later determined that
            the cut was a twenty-three centimeter long neck wound that
            transected the external carotid artery and the internal
            jugular vein and extended in depth to the spine. A medical
            examiner found that the force required to inflict the wound
            was “moderate to severe.” Appellant was twenty-six years
            old when he committed the offense.
                                        2
    Case: 16-70012    Document: 00513745619     Page: 3   Date Filed: 11/03/2016

                                 No. 16-70012

Runnels v. State, 2007 WL 2655682, at *1 (Tex. Crim. App. Sept. 12, 2007).
      The record shows that Runnels had been convicted of three other felonies
before murdering Wiley. In 1993, he had been convicted of second-degree felony
burglary. After being placed on probation, he committed (and was convicted
for) another burglary resulting in the revocation of his probation. In 1997, he
was convicted of first-degree felony aggravated robbery committed with a
firearm. In prison, Runnels committed numerous acts of misconduct including:
(1) hitting a guard in the jaw; (2) throwing urine at a guard; (3) and throwing
feces at a guard.
      Though the State Counsel for Offenders was initially appointed to
represent Runnels for murdering Wiley, the trial judge granted their motion
to withdraw on grounds that they lacked experience and training in death
penalty litigation. On May 17, 2004, Jim Durham and Laura Hamilton were
appointed as Runnels’ defense counsel. In addition, the court appointed
defense investigator, Kathy Garrison; psychiatrist, Lisa Clayton; neuro-
psychologist, Richard Fulbright; and attorney, Warren Clark, who acted as
capital jury selection consultant. Attorney Robert Hirschhorn helped to
prepare the defense’s juror questionnaire.
      At trial, Runnels entered a guilty plea. He also provided the trial judge
with an affidavit stating that he had discussed the strategic and tactical
aspects of his guilty plea with counsel and that he voluntarily entered into his
guilty plea. On the day of trial, potential defense witnesses including Runnels’
mother, father, grandmother, and brother Darmonica did not make themselves
available to testify. Darmonica refused to make the trip to Amarillo. Runnels’
mother, grandmother, and father made the trip, but Runnels’ father remained
in the courtroom, thus making himself unavailable to testify. Runnels’ mother
and grandmother left the courthouse and drove home before they could testify.

                                       3
    Case: 16-70012   Document: 00513745619     Page: 4   Date Filed: 11/03/2016

                                No. 16-70012
When Garrison called the family members who had left, they told her that they
could do nothing for Runnels now and hung up the telephone.
      With no defense witnesses present, defense counsel James Durham
attempted to show that Runnels did not constitute a future danger by eliciting
testimony from seven prosecution witnesses who had been in contact with
Runnels on the day of the murder. These inmates testified that Runnels was a
good and peaceable prisoner who had cooperated with officers after the attack.
After the state rested, Durham informed the court that he had a witness who
was teaching a class and who could not arrive until later that day. He had a
witness whom he wanted to confer with counsel about. He also had subpoenaed
additional out-of-town witnesses for the next day. When the judge asked if
Durham could convince his witness who was teaching a class to come sooner,
Durham said that he would inquire. After a short break, Durham rested
without calling any defense witnesses. The next day, he moved for an
instructed verdict on the issue of future dangerousness. The motion was
denied.
      During closing arguments, the prosecution stated that Runnels’ actions
demonstrated his future dangerousness despite testimony by the seven inmate
witnesses to the contrary. The prosecution also emphasized Runnels’ prior
convictions, prison misconduct, and the brutal nature of the attack on Wiley.
During his closing argument, defense counsel Durham stated that Runnels’
decision to plead guilty was his “first act of contrition . . . .” He also
reemphasized that the State had not carried its burden of proof of future
dangerousness. In particular, he argued that the State had not put on any
experts regarding Runnels’ future dangerousness and that seven inmates had
testified that Runnels was peaceful and non-violent. Finally, he pointed out
that Runnels had had no major incidents in prison, and that he had never hurt

                                      4
    Case: 16-70012    Document: 00513745619     Page: 5   Date Filed: 11/03/2016

                                 No. 16-70012
or hit anyone before the murder. On rebuttal, the prosecution argued against
the need to present an expert on Runnels’ future dangerousness.
      After sentencing, Runnels filed a motion for a new trial. After an
evidentiary hearing at which, inter alia, Mr. Durham testified, it was denied.
His conviction was automatically appealed to the CCA, which unanimously
confirmed his conviction and death sentence. Runnels’ new counsel, Joe Marr
Wilson, filed an application for habeas relief in state court. Runnels, through
counsel Wilson, alleged that Durham had rendered ineffective assistance at
trial for failing to present punishment-phase evidence and failing to conduct
an adequate mitigation investigation. Runnels supported his application with
affidavits from Runnels, his brother Darmonica, his mother, his grandmother,
and two cousins. The affidavits stated, among other things, that: (1) Runnels
mother and grandmother drove to Amarillo with Runnels’ father for the trial,
waited at the courthouse thinking they would testify, but were told either by
defense investigator Kathy Garrison or Durham that they would not be needed,
and went home; (2) Runnels’ brother Darmonica was never served with a
subpoena; (3) no one had ever interviewed Runnels’ cousins before trial, but
they would have cooperated if asked; (4) Durham had recommended Runnels
plead guilty and told him that the “real fight would be in showing a jury at the
punishment phase that [he] had a good side and that [he] could be
rehabilitated;” and (5) Runnels had provided Garrison with the names of at
least thirty family members and ten friends to serve as character witnesses
and offer information about his upbringing and family history.
      After making findings of fact, which summarized the defense’s
mitigation investigation and strategy, and conclusions of law, the trial judge
recommended the denial of habeas relief, determining that Durham’s decision
not to present testimony was a sound strategy. The CCA held the application
in abeyance and ordered the trial court to conduct an evidentiary hearing on
                                       5
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                                 No. 16-70012
Runnels’ ineffective-assistance of counsel claim and on a claim that his guilty
plea was involuntarily. After a hearing during which the trial judge made
supplemental findings of fact and conclusions of law, the judge once again
recommended that habeas relief be denied. The CCA adopted the trial judge’s
recommendation including the initial and supplemental findings of fact and
conclusions of law.
       On December 28, 2012, Runnels filed a federal habeas petition in district
court under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). On March 31, 2016, the district court adopted the United States
Magistrate Judge’s findings and, after considering and denying Runnel’s
objections to the same, denied Runnels’ application for writ of habeas corpus
and request for a COA. Runnels timely appeals and asks this Court to grant a
COA.

                          STANDARD OF REVIEW
       Under the AEDPA, a prisoner who has been denied habeas relief by a
district court must obtain a COA from a circuit or district judge. 28 U.S.C. §
2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 335-336 (2003). A COA is
granted “only if the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court has denied
claims on the merits, the petitioner must “demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where
claims have been denied on procedural grounds, the petitioner must show that
“jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural
ruling.” Id. at 474.
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      COA requests require a “threshold inquiry into whether the circuit court
may entertain an appeal.” Miller-El, 537 U.S. at 336 (quoting Slack, 529 U.S.
at 482) (internal marks omitted). “This threshold inquiry does not require full
consideration of the factual or legal bases adduced in support of the claims.”
Id. at 323. When assessing COA claims, “[t]he question is the debatability of
the underlying constitutional claim, not the resolution of that debate.” Id. at
325. “[I]n a death penalty case, ‘any doubts as to whether a COA should issue
must be resolved in [the petitioner’s] favor.” Ramirez v. Dretke, 398 F.3d 691,
694 (5th Cir. 2005) (alteration in original) (quoting Hernandez v. Johnson, 2013
F.3d 243, 248 (5th Cir. 2000)).
      A writ of habeas corpus shall not be granted for any claim that was
adjudicated on the merits in state court “unless the adjudication of the claim
resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law” or “resulted in a decision that
was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2).
“A state court’s decision is an unreasonable application of clearly established
federal law whenever the state court identifies the correct governing legal
principle from the Supreme Court’s decisions but applies that principle to the
facts of the prisoner’s case in an objectively unreasonable manner.” Young v.
Dretke, 356 F.3d 616, 623 (5th Cir. 2004) (internal marks omitted). “An
unreasonable application may also occur if the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to a new context
where it should not apply or unreasonably refuses to extend that principle to a
new context where it should apply.” Id. (internal marks omitted) (alternation
in original). “[A] determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden of rebutting

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the presumption of correctness by clear and convincing evidence.” 28 U.S.C. §
2254(e)(1).

                                 DISCUSSION
      Runnels asserts that his trial counsel was ineffective on grounds that:
(1) trial counsel did not retain a mitigation specialist; (2) trial counsel did not
formulate a mitigation strategy based on information discovered by defense
investigator Kathy Garrison that Runnels had endured a “chaotic and
traumatic childhood;” and (3) trial counsel did not call any witnesses.
      Ineffective assistance of counsel claims are governed by the two-prong
test established in Strickland v. Washington, 466 U.S. 668 (1984). According
to Strickland, Runnels must show that (1) “counsel’s representation fell below
an objective standard of reasonableness” and (2) that he was prejudiced by the
representation. Prejudice is defined as a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. at 688, 694 (1984). “In any ineffectiveness case,
a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.” Id. at 691.
      Consequently, for his application to be granted, Runnels must
demonstrate that it was unreasonable for the state court to conclude that he
did not overcome the strong presumption of defense counsel’s competence and
that he failed to undermine confidence in the outcome. See Cullen v. Pinholster,
131 S. Ct. 1388, 1403 (2011). He must also demonstrate that the state court’s
decision was contrary to or involved an unreasonable application of Strickland.
28 U.S.C. § 2254(d).

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      Here, Runnels fails to show an unreasonable application of Stickland.
The Magistrate Judge’s 64-page recommendation thoroughly analyzes
Runnels arguments and finds the following: First, defense counsel conducted
an extensive mitigation investigation. In fact, Runnels concedes that Garrison
“conducted a thorough investigation into [his] background.” He claims,
however, that defense should have retained a qualified mitigation investigator.
This Court has previously stated that defense counsel is not obligated to retain
a mitigation expert. See Ward v. Stephens, 777 F.3d 250, 264 (5th Cir. 2015)
(“That trial counsel decided to use its time and resources on mental-health
experts, rather than on a professional mitigation specialist . . . may very well
reflect counsel’s reasonable strategic decision ‘to balance limited resources’ . . .
.”). In addition, there is nothing in the record to support a conclusion that
defense counsel’s decision not to retain a mitigation investigator was
unreasonable. As the district court noted, “Ms. Garrison has significant
experience in death penalty cases. . . .” Also, defense counsel retained a team
of specialists to assist in Runnels’ defense including Garrison, a psychiatrist,
and a neuro-psychologist.
      Second, defense counsel formulated an adequate mitigation strategy. As
Strickland, 466 U.S. at 690, makes clear, “counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” There is nothing in the record to
overcome this strong presumption. As the district court stated, after “receiving
unhelpful reports from his experts,” Durham “intended to present evidence
that Runnels had had a rough life, was poor, was shuffled back and forth
between parents and grandparents and other family members, had trouble in
school and suffered disabilities that made it difficult to function, but that he
could serve a life sentence in prison.” “Unfortunately for Runnels, there is
uncontradicted testimony that petitioner’s brother, Darmonica, simply refused
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to appear at trial, and there is testimony that the rest of Runnels’s family made
themselves unavailable by exiting the courthouse and leaving Amarillo before
they were called to testify. When Ms. Garrison called them and asked them to
return, they told her they could not do anything for Runnels and hung up the
phone.”
      Consequently, defense counsel formulated a mitigation strategy that
Runnels would plead guilty to Wiley’s murder and then contest that he posed
a future danger through the cross-examination of prosecution witnesses. On
cross-examination, Durham elicited testimony from seven of the prosecution’s
“guilt” witnesses that Runnels was peaceable, a good prisoner, and did not have
a history of violence. Prosecution witness Bud Williams testified that Runnels
was not violent and did not get into prison fights. William Gilchrist testified
that he had never seen Runnels engage in violent acts. Jimmy Jordan testified
that he had never seen Runnels fight or argue with anyone except for Wiley.
Williams Elkins testified that Runnels “seemed like he was a great guy.” Tony
Irvine testified that Runnels had made no attempt to escape after attacking
Wiley and waited for the authorities to come. Eugene Johnson testified that he
had not heard that Runnels was a troublemaker. Phillip Yow testified that
Runnels cooperated with officers after the attack.
      During his closing argument, Durham stated that Runnels’ decision to
plead guilty was his “first act of contrition . . . .” Then he argued that the State
had not carried its burden of proof regarding future dangerousness given the
testimony presented by the seven inmate witnesses. Finally, he pointed out
that Runnels had had no major incidents in prison and that he had never hurt
or hit anyone before murdering Wiley.
      Third, defense counsel was justified in not calling witnesses. “[O]ur
scrutiny of counsel’s performance is highly deferential. We must be
particularly wary of arguments that essentially come down to a matter of
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degrees . . . Those questions are even less susceptible to judicial second
guessing.” Dowthitt v. Johnson, 230 F.3d 733, 743 (5th Cir. 2000) (citations
omitted). In addition, “to prevail on an ineffective assistance claim based on
counsel’s failure to call a witness, the petitioner must name the witness,
demonstrate that the witness was available to testify and would have done so,
set out the content of the witness’s proposed testimony, and show that the
testimony would have been favorable to a particular defense.” Day v.
Quarterman, 566 F.3d 527, 538 (5th Cir. 2009). Potential defense witnesses
made themselves unavailable for trial even after defense investigator Garrison
urged them to appear. Thus, Runnels has failed to show that these witnesses
were “available to testify and would have done so. . . .” Id. at 538.
      Furthermore, defense counsel had ample reason to rest without calling
witnesses once Runnels’ family members made themselves unavailable to
testify. See Pinholster, 131 S. Ct. at 1407 (stating that a court is “required not
simply to give [the] attorneys the benefit of the doubt, but to affirmatively
entertain the range of possible reasons [Appellant’s] counsel may have had for
proceeding as they did” (citations omitted)). Given that the prosecution would
have likely brought up that the family members had been unwilling to appear,
defense counsel could have reasonably assumed that the family members’
testimony would have been “double-edged.” See Kitchens v. Johnson, 190 F.3d
698, 703 (5th Cir. 1999) (find that “double-edged” evidence is “even less
susceptible to judicial second-guessing” because it “essentially comes down to
a matter of degrees”).
      Runnels claims that a member of the defense team told family members
that they would not need to testify. The state court found otherwise, and that
finding “shall be presumed to be correct” without “clear and convincing
evidence” to the contrary. 28 U.S.C. § 2254(e)(1). Runnels has presented no
such evidence. Regarding any other witnesses that the defense may have
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called, Runnels’ arguments “essentially come down to a matter of degrees . . .
[and] are even less susceptible to judicial second guessing.” Dowthitt, 230 F.3d
at 743 (citations omitted). Consequently, reasonable jurists would not find the
district court’s assessment of his ineffective assistance of counsel claims to be
debatable or wrong.
      Runnels’ application for a COA is DENIED.

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