Krivitskie v. Cramlett

• Decision Date: 30 December 1998
• Docket Number: No. 2-98-0185,2-98-0185
• Citation: 235 Ill.Dec. 384,301 Ill.App.3d 705,704 N.E.2d 957
• Parties: , 235 Ill.Dec. 384 Ruth Sonja KRIVITSKIE, Plaintiff-Appellant, v. Brandon W. CRAMLETT, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 957

704 N.E.2d 957

301 Ill.App.3d 705, 235 Ill.Dec. 384

Ruth Sonja KRIVITSKIE, Plaintiff-Appellant, v. Brandon W. CRAMLETT, Defendant-Appellee.

No. 2-98-0185.

Appellate Court of Illinois Second District.

Dec. 30, 1998.

Mark A. Rouleau, Rockford, for Ruth Sonja Krivitskie.

Karen L. Kendall, Craig L. Unrath, Heyl, Royster, Voelker & Allen, Peoria, Kevin J. Luther, Matthew S. Morrison, Heyl, Royster, Voelker & Allen, Rockford, for Brandon W. Cramlett.

Justice THOMAS delivered the opinion of the court:

Plaintiff, Ruth Sonja Krivitskie, filed a two-count complaint against defendant, Brandon W. Cramlett. Plaintiff sought to recover for injuries and property damage suffered in an automobile accident in which defendant's vehicle collided with hers. Count I alleged negligence and count II alleged willful and wanton misconduct. Defendant moved to dismiss count II, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1996)), arguing that it did not allege sufficient facts to sustain a claim for willful and wanton misconduct. The court granted the motion and made its order final and appealable. Plaintiff appeals pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)), and we reverse and remand.

Plaintiff alleged the following in her complaint. On September 6, 1995, at approximately 6:30 p.m., she was stopped in her car in the far left eastbound lane of Harrison Avenue, waiting to make a left turn. Her brake lights were on and were functioning properly. Defendant's vehicle ran into hers, causing her to suffer personal injuries and property damage. Count I alleged 10 specific acts of negligence, including that defendant failed to keep a proper lookout, failed to keep his vehicle under control, drove in excess of the speed limit, and drove too fast for conditions. Count II alleged willful and wanton misconduct in that defendant was reckless and acted with utter indifference to or conscious disregard for the safety of himself or others. The factual support for that allegation was that he drove at a high rate of speed while approaching an intersection while the roadways were wet and it was raining. Plaintiff also relied on defendant's knowing that he was an inexperienced driver in that he had received his driver's license less than three months before the collision.

Before reaching the merits of this appeal, we address defendant's argument that we do not have jurisdiction. Defendant contends that the court's order dismissing count II was not appealable pursuant to Rule 304(a) because it did not dispose of a separate branch of the controversy. Defendant's position is that, because willful and wanton misconduct is merely an aggravated degree of negligence and there is no separate and independent tort of willful and wanton misconduct, an order dismissing a willful and wanton count arising out of the same allegations as a negligence count does not dispose of a separate branch of the controversy.

Rule 304(a) provides, in relevant part, as follows:

"If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both." 155 Ill.2d R. 304(a).

An order is final if it terminates the litigation between the parties on the merits or disposes of the rights of the parties, either on the entire controversy or on a definite and separate branch thereof. Arachnid, Inc. v. Beall, 210 Ill.App.3d 1096, 1103, 155 Ill.Dec. 662, 569 N.E.2d 1273 (1991). Generally, the statement of a single claim in several ways, even by multiple counts, does not warrant a separate appeal. Arachnid, 210 Ill.App.3d at 1103, 155 Ill.Dec. 662, 569 N.E.2d 1273. The test is whether the order appealed from constitutes a final determination of the parties' rights with respect to a definite and separable portion of the subject matter. St. Joseph Data Service, Inc. v. Thomas Jefferson Life Insurance Co. of America, 73 Ill.App.3d 935, 940, 30 Ill.Dec. 575, 393 N.E.2d 611 (1979). For purposes of Rule 304(a), a claim is any right, liability, or matter raised in an action. Marsh v. Evangelical Covenant Church, 138 Ill.2d 458, 465, 150 Ill.Dec. 572, 563 N.E.2d 459 (1990). Even when a single claim is presented several ways in multiple counts, a judgment on one count is appealable under Rule 304(a) when the basis of recovery in each count is different because then a distinct cause of action has been disposed of. Waste Management of Illinois, Inc. v. Environmental Protection Agency, 137 Ill.App.3d 619, 625, 92 Ill.Dec. 273, 484 N.E.2d 1128 (1985). Distinct causes of action exist when the grounds for recovery under the various counts derive from different statutes or common-law doctrines or when the various theories of recovery require different elements to establish a proper claim or involve differing standards of plaintiff's conduct that will bar recovery. Heinrich v. Peabody International Corp., 99 Ill.2d 344, 348, 76 Ill.Dec. 800, 459 N.E.2d 935 (1984).

This is a close issue, but we believe that the willful and wanton count is sufficiently distinct from the negligence count that its dismissal may support a Rule 304(a) appeal. Defendant is correct that willful and wanton misconduct is not a separate and independent tort. See Ziarko v. Soo Line R.R. Co., 161 Ill.2d 267, 274, 204 Ill.Dec. 178, 641 N.E.2d 402 (1994). Willful and wanton misconduct is a hybrid between acts considered negligent and those found to be intentionally tortious. Ziarko, 161 Ill.2d at 275, 204 Ill.Dec. 178, 641 N.E.2d 402. Willful and wanton misconduct that is not intentional comprises acts done in reckless or conscious disregard of probable injurious consequences. Rodrian v. Seiber, 194 Ill.App.3d 504, 509-10, 141 Ill.Dec. 585, 551 N.E.2d 772 (1990). In the pattern jury instructions, willful and wanton conduct is defined as "a course of action which * * * shows an utter indifference to or conscious disregard for a person's own safety and the safety of others." Illinois Pattern Jury Instructions, Civil, No. 14.01 (3d ed.1995) (hereinafter IPI Civil 3d). A common-law negligence action requires the plaintiff to establish a duty owed by the defendant to ...