Floyd ex rel. Floyd v. Rockford Park Dist.

• Decision Date: 12 January 2005
• Docket Number: No. 2-04-0460.,2-04-0460.
• Citation: 823 N.E.2d 1004,291 Ill.Dec. 418,355 Ill. App.3d 695
• Parties: Image FLOYD, a Minor, by his Mother and Next Friend, Tina FLOYD, Plaintiff-Appellant, v. The ROCKFORD PARK DISTRICT and Peggy Decker, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

823 N.E.2d 1004

355 Ill. App.3d 695

291 Ill.Dec. 418

Image FLOYD, a Minor, by his Mother and Next Friend, Tina FLOYD, Plaintiff-Appellant, v. The ROCKFORD PARK DISTRICT and Peggy Decker, Defendants-Appellees.

No. 2-04-0460.

Appellate Court of Illinois, Second District.

January 12, 2005.

David J. Kupets, Jason M. Kleinman, Law Offices of Kupets & DeCaro, P.C., Chicago, for Image Floyd, Tina Floyd.

Edward F. Dutton, Park District Risk Management Agency, Wheaton, for Peggy Decker, The Rockford Park District.

Justice McLAREN delivered the opinion of the court:

In the summer of 2002, defendant Rockford Park District sponsored inexpensive summer programs for children. Registered participants in one such program included plaintiff, Image Floyd, and Sir-Donovan Washington. The program offered various activities at a number of park district playgrounds and parks, one of which was Beattie Playground. Defendant Peggy Decker, a director of the park district, supervised the summer activities at Beattie Playground. On June 26, 2002, plaintiff and Washington were at Beattie Playground when Washington intentionally struck plaintiff on the head with a metal golf club. Plaintiff sued defendants, contending that defendants were liable for willful and wanton conduct when they failed to supervise Washington while he used the metal golf club. Defendants moved to dismiss (see 735 ILCS 5/2-619.1 (West 2002)), contending, among other things, that they were immune from liability pursuant to section 3-108 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3-108 (West 2002)) because plaintiff failed to plead specific facts amounting to willful and wanton conduct (see 745 ILCS 10/1-210 (West 2002)). The trial court granted the motion to dismiss, and this timely appeal followed. We affirm.

In his second amended complaint, plaintiff alleged willful and wanton conduct against the park district (count I) and Decker (count II). In pleading these counts, plaintiff addressed the park district's policy on sporting equipment, Washington's past behavior, and the present incident. With reference to the policy, plaintiff alleged that the park district previously instituted a rule prohibiting children from using metal baseball bats or metal golf clubs during summer programs. However, the children were allowed to use such equipment under the tutelage of specially trained directors who came to the summer programs to give the children golf and baseball instruction. The policy disallowing the use of metal bats and metal golf clubs was formulated after a child was hit by a metal baseball bat in 1996. The rule remained in effect until March 2000.

In describing Washington's behavior, plaintiff alleged that, prior to June 26, 2002, Washington "regularly and continuously exhibited belligerent and violent behavior toward the supervisors and the other registered participants." Plaintiff specified that Washington "fought with, threatened and verbally abused other participants and supervisors," and he "disobeyed orders and directions given to him."

Plaintiff then addressed the incident, which occurred on June 26, 2002. On that day, the participants went on a field trip, and Washington behaved badly, exhibiting "aggressive and belligerent behavior" towards supervisors and fellow registered participants. Despite Washington's violent conduct, he was permitted to remain in the summer program when the group returned from the field trip. At that time, all of the registered participants, except Washington, assembled under an awning of the Beattie Playground clubhouse. While the other children, including plaintiff, participated in a group activity, Washington stood in the center of Beattie Playground, swinging a metal golf club that supervisors and counselors allowed him to take from the storage area. Soon afterwards, plaintiff's mother arrived to pick plaintiff up. Plaintiff gathered his belongings and approached Washington, attempting to retrieve a pair of sunglasses that Washington took from plaintiff earlier in the day. Washington responded by "intentionally and violently" striking plaintiff on the head with the metal golf club, causing serious injuries. Plaintiff alleged that no counselor or supervisor monitored Washington after he extricated himself from the group.

In his willful and wanton conduct counts against both the park district and Decker, plaintiff alleged that, with an utter indifference and conscious disregard for the safety of others, defendants (1) allowed Washington to have access to a metal golf club when they knew of, or reasonably should have known of, Washington's violent and belligerent behavior; (2) failed to supervise Washington while he used the golf club; (3) failed to supervise other registered participants while they possessed metal golf clubs; (4) knew, or reasonably should have known, that Washington was capable of injuring another registered participant with the metal golf club; (5) permitted Washington to use the metal golf club despite the previously instituted rule prohibiting their use under such circumstances; (6) failed to discontinue the use of metal golf clubs when the park district knew that the use of metal sporting equipment was dangerous; (7) allowed Washington to remain at Beattie Playground after Washington acted violently and belligerently towards supervisors and other registered participants; and (8) failed to provide properly trained supervisors. Plaintiff contended that his injuries were the direct and proximate result of one or more of these acts or omissions.

Defendants moved to dismiss the second amended complaint, contending that they did not owe plaintiff a duty to protect him from Washington's intentional act and that they were immune from liability pursuant to section 3-108 of the Act and section 4-102 of the Act (745 ILCS 10/4-102 (West 2002)). With reference to section 3-108 of the Act, defendants claimed that they were insulated from liability because a public entity is not liable for failing to supervise an activity absent proof of willful and wanton conduct. 745 ILCS 10/3-108 (West 2002). Defendants properly specified that this portion of their motion was brought pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2002)). See Downey v. Wood Dale Park District, 286 Ill.App.3d 194, 199, 221 Ill.Dec. 549, 675 N.E.2d 973 (1997) (combined motion to dismiss pursuant to section 2-619.1 of the Code is proper if movant indicates under which section of the Code each part of the combined motion to dismiss is brought). Defendants also claimed that plaintiff failed to plead facts sufficient to establish willful and wanton conduct, as defined in the Act, because he did not present facts establishing that defendants engaged in a course of action preceding and leading to plaintiff's injury. See 745 ILCS 10/1-210 (West 2002). Defendants properly indicated that this part of their motion was brought pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2002)).

In response, plaintiff contended that his "allegations addressing the complete failure to follow Park District rules, knowing of the dangers presented by the steel golf clubs combined with [Washington's] repeated bad conduct and assaultive behavior, when viewed in a light most favorable to the plaintiff, does * * * rise to willful and wanton conduct." Defendants disagreed, claiming that the park district's internal rules and guidelines for the summer program did not negate section 3-108 immunity or constitute evidence of willful and wanton conduct.

In a memorandum of its decision, the trial court granted the motion to dismiss, finding that "these facts could not state a cause of action which could stand in the face of the statutory immunities and the case derived definition of wilful and wanton." A written order was entered, and this timely appeal followed.

As an initial matter, we note that plaintiff appeals a dismissal entered pursuant to sections 2-615 of the Code (failure to sufficiently plead willful and wanton conduct) and 2-619(a)(9) of the Code (section 3-108 of the Act bars plaintiff from recovering against defendants). When a trial court dismisses a complaint pursuant to either section 2-615 or 2-619 of the Code, it must interpret all pleadings in a light most favorable to the nonmoving party. Doe ex rel. Ortega-Piron v. Chicago Board of Education, 213 Ill.2d 19, 23-24, 289 Ill.Dec. 642, 820 N.E.2d 418 (2004). We review de novo a dismissal under either section. Doe, 213 Ill.2d at 23-24, 289 Ill.Dec. 642, 820 N.E.2d 418.

The first issue we consider is whether plaintiff's complaint was properly dismissed pursuant to section 2-615 of the Code for failing to plead facts sufficient to establish willful and wanton conduct. A section 2-615 motion admits all well-pleaded facts and attacks the legal sufficiency of the complaint. Jenkins v. Concorde Acceptance Corp., 345 Ill.App.3d 669, 674, 280 Ill.Dec. 749, 802 N.E.2d 1270 (2003). Such a motion should be granted only when the allegations in the complaint, construed in the light most favorable to the plaintiff, fail to state a cause of action upon which relief can be granted. Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 147, 267 Ill.Dec. 14, 776 N.E.2d 151 (2002). In making this assessment, all well-pleaded facts and inferences drawn from those facts are accepted as true. Oliveira, 201 Ill.2d at 147, 267 Ill. Dec. 14, 776 N.E.2d 151.

To sufficiently plead willful and wanton conduct, a plaintiff must allege not only duty, breach, and proximate cause (Scarano v. Town of Ela, 166 Ill.App.3d 184, 187, 117 Ill.Dec. 72, 520 N.E.2d 62 (1988)), but also that the defendant engaged in a course of action that showed a deliberate intention to harm or an utter indifference to or conscious disregard for the plaintiff's welfare. 745 ILCS 10/1-210 (West 2002); Doe, 213 Ill.2d at 27-28, 289 Ill.Dec. 642, 820 N.E.2d 418; ...