Carter v. New Trier East High School

• Decision Date: 16 May 1995
• Docket Number: No. 1-94-2339,1-94-2339
• Citation: 650 N.E.2d 657,208 Ill.Dec. 963,272 Ill.App.3d 551
• Parties: , 208 Ill.Dec. 963, 100 Ed. Law Rep. 653 Earlest CARTER, Plaintiff-Appellant, v. NEW TRIER EAST HIGH SCHOOL and Board of Education, District 203, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 657

650 N.E.2d 657

272 Ill.App.3d 551, 208 Ill.Dec. 963,

100 Ed. Law Rep. 653

Earlest CARTER, Plaintiff-Appellant, v. NEW TRIER EAST HIGH SCHOOL and Board of Education, District 203, Defendants-Appellees.

No. 1-94-2339.

Appellate Court of Illinois First District, Second Division.

May 16, 1995.

Harvey L. Walner & Associates, Ltd., Chicago (Paul M. Weiss, of counsel), for appellant.

Kiesler & Berman, Chicago (John R. Garofalo, of counsel), for appellees.

Presiding Justice SCARIANO delivered the opinion of the court:

Plaintiff Earlest Carter's complaint alleged that on September 1, 1990, defendants acted negligently and willfully and wantonly with respect to the maintenance of tennis courts on which he was playing when he backed into a hole, injuring his ankle. New Trier East High School was dismissed as a party defendant on August 19, 1992. The Board filed an answer denying the allegations forming the gravamen of the complaint, and thereafter sought summary judgment, which the trial judge granted.

Plaintiff now appeals, claiming that the judge erred in finding insufficient allegations in the complaint as a matter of law to establish willful and wanton conduct on the part of the Board, and in improperly equating willful and wanton conduct with criminal conduct. No issue is raised on appeal regarding the trial judge's dismissal of plaintiff's negligence count.

Initially, we note that this case has been unnecessarily complicated because of the failure of the parties in the trial court to draw a clear distinction between the proper inquiry required to be made regarding a motion to dismiss and the one applicable to a summary judgment motion. (Compare 735 ILCS 5/2-615 (West 1992), with 735 ILCS 5/2-1005 (West 1992).) The distinction between the two was thoroughly and accurately set forth by this court in Barber-Colman Co. v. A & K Midwest Insulation Co. (1992), 236 Ill.App.3d 1065, 177 Ill.Dec. 841, 603 N.E.2d 1215.

"A motion to dismiss under section 2-615 attacks only the legal sufficiency of the complaint. [Citation.] * * * A significant difference between section 2-615 motions, as compared to * * * motions for summary judgment is that a section 2-615 motion is based on the pleadings rather than on the underlying facts. [Citations.] Accordingly, affidavits [citation], the products of discovery [citation], documentary evidence not incorporated into the pleadings as exhibits [citation], testimonial evidence [citation], or other evidentiary materials [citation] may not be considered by the court in ruling on a section 2-615 motion. [Citation.] A basic premise of section 2-615 is that it accepts, for purposes of the motion, that all well-pled facts in the complaint are true.

* * * * * *

If a motion challenging the pleadings may be determined solely from the face of the pleadings, a section 2-615 motion is appropriate. If matters not apparent on the face of the pleadings must be considered to decide the motion, that is, if the defect challenged lies in the underlying facts rather than in the pleadings, a motion for summary judgement under section 2-1005 is the proper tool. [Citation.]

* * * * * *

Currently, the Code provides that [summary judgment] motions may be made 'with or without supporting affidavits' [citation]; that the party opposing the motion may file opposing affidavits at the time of the hearing or any earlier occasion [citation]; and that the motion is to be granted 'if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgement as a matter of law' [citation]. The fact that the summary judgment motion may be made 'with or without' supporting affidavits does not suggest that the motion may be used as a substitute for a section 2-615 motion to raise defects appearing on the face of the pleading. [Citation.] The Illinois Supreme Court noted that a section 2-615 motion to dismiss raises 'an inquiry into whether a pleading is sufficient to state a cause of action,' while a summary judgment motion 'almost necessarily assumes that a cause of action has been stated and proceeds to determine whether there are any material issues of fact to be tried.' " Barber-Colman, 236 Ill.App.3d at 1068-70, 177 Ill.Dec. 841, 603 N.E.2d 1215.

Here, in a motion labeled as one for summary judgment, which contained no affidavits or other supporting evidence, the Board maintained:

"[a]ssuming, arguendo, that every allegation in [the complaint] is true, Plaintiff has failed to plead facts which establish willful and wanton misconduct. The [complaint] contains no allegation of specific facts which shows an intentional act or an act performed with reckless disregard for the safety of others. [Citation.] [Such] misconduct has not been established by [the complaint] because its factual allegations are conclusory in character. Plaintiff's blanket allegation of the Board's failure to repair or warn of a crack in the tennis courts are mere characterizations which are not sufficient to prove willful and wanton conduct."

Basically, the Board asserted in its motion that it was entitled to summary judgment because plaintiff's pleadings were "blanket-like," conclusory, and not specific. Such an assertion evinces a complete misapprehension of the distinction between the purpose of a 2-615 motion and a 2-1005 motion. See Barber-Colman, 236 Ill.App.3d at 1075, 177 Ill.Dec. 841, 603 N.E.2d 1215.

That confusion abounds in this case is further demonstrated by the trial judge's resolution of the Board's motion. Although the judge signed an order granting defendant's "motion for summary judgment," at the hearing on that motion he stated that the Board's "willful and wanton" count was "dismiss[ed]," and for support relied on a case dealing with a 2-615 motion. Oropeza v. Board of Education (1992), 238 Ill.App.3d 399, 179 Ill.Dec. 650, 606 N.E.2d 482.

The supreme court has expressly disapproved of the use of "hybrid" motions that combine a request for summary judgment and one to dismiss for failure to state a cause of action. ¹ (Janes, 57 Ill.2d at 405-406, 312 N.E.2d 605.) However, while an order granting such a motion may be subject to reversal, appellate courts generally treat the motion as it was fundamentally decided below, absent any showing of prejudice to the non-movant. (Beauvoir v. Rush-Presbyterian-St. Luke's Medical Center (1985), 137 Ill.App.3d 294, 299, 92 Ill.Dec. 110, 484 N.E.2d 841; Davis v. Weiskopf (1982), 108 Ill.App.3d 505, 508, 64 Ill.Dec. 131, 439 N.E.2d 60.) In the instant case, though, since it is difficult to discern the trial judge's actual intent, we address the threshold question of whether plaintiff's complaint can survive a section 2-615 motion, that is, whether it states a cause of action. Janes, 57 Ill.2d at 406, 312 N.E.2d 605 (trial court should proceed to entertain the summary judgment aspect of a "hybrid" motion only after a legally sufficient cause of action has been presented).

In reviewing the sufficiency of a complaint dismissed pursuant to a section 2-615 motion, the court must determine whether the allegations contained therein, when construed in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. (Duncan v. Rzonca (1985), 133 Ill.App.3d 184, 190-91, 88 Ill.Dec. 288, 478 N.E.2d 603; Carlson v. Moline Bd. of Educ. (1984), 124 Ill.App.3d 967, 80 Ill.Dec. 256, 464 N.E.2d 1239.) Further, to avoid dismissal under this section, the complaint must sufficiently set forth every essential fact to be proved, and if it fails to allege such facts, the deficiency may not be cured by liberal construction. Conclusions of law or fact unsupported by specific factual allegations are not taken as true. (Capitol Indem. Corp. v. Stewart Smith Intermediaries (1992), 229 Ill.App.3d 119, 123, 171 Ill.Dec. 52, 593 N.E.2d 872.) In short, in addressing a section 2-615 motion, the role of the trial judge is to determine whether the pleadings present the possibility of recovery--not an absolute certainty.

In the case at bar, to plead a sufficient cause of action in negligence, plaintiff must allege that the Board is a local public entity, the existence of a duty owed by the Board to plaintiff, a breach of that duty, an injury proximately caused by the breach, and damages. In addition, because the injury is based on the condition of public property used for recreational purposes, plaintiff must allege that the proximate cause of his injury was defendant's willful and wanton conduct. (Lerma v. Rockford Blacktop Constr. Co. (1993), 247 Ill.App.3d 567, 571, 187 Ill.Dec. 323, 617 N.E.2d 531; 745 ILCS 10/3-106 (West 1993).) Further, although a court may determine as a matter of law whether plaintiff's alleged facts constitute willful and wanton conduct, generally, "[b]ecause of the necessity to closely scrutinize the facts of each case, [a] plaintiff should be allowed to present evidence in support of his allegation of willful and wanton misconduct." O'Brien v. Township High School Dist. (1980), 83 Ill.2d 462, 469, 47 Ill.Dec. 702, 415 N.E.2d 1015.

The question presented by the Board's motion is whether plaintiff's complaint sufficiently alleged facts establishing the element of willful and wanton conduct. We conclude that it does.

Plaintiff's complaint stated that the Board engaged in willful and wanton conduct by recklessly and consciously:

"a. [D]isregard[ing] the defective condition of an uneven, broken, depressed, and cracked condition on said tennis courts for a long period of time;

b. [F]ail[ing] to repair said defects after complaints of the dangers were made to the Defendants[;]

c. [F]ail[ing] to warn users when they knew that others had been injured due to the condition of the premises[;]

d. [Failing] to inspect [the] premises when it had reason to know such inspection was necessary[;] ...