Leja v. Cmty. Unit Sch. Dist. 300

• Decision Date: 06 November 2012
• Docket Number: No. 2–12–0156.,2–12–0156.
• Citation: 979 N.E.2d 573
• Parties: Allison LEJA, a Minor, by her Father and Next Friend, Gary Leja, Plaintiff–Appellant, v. COMMUNITY UNIT SCHOOL DISTRICT 300, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

979 N.E.2d 573

Allison LEJA, a Minor, by her Father and Next Friend, Gary Leja, Plaintiff–Appellant,

v.COMMUNITY UNIT SCHOOL DISTRICT 300, Defendant–Appellee.

No. 2–12–0156.

Appellate Court of Illinois, Second District.

Nov. 6, 2012.

Rehearing Denied Dec. 21, 2012.

Law Offices of Joseph V. Roddy, of Chicago (Jeanne N. Brown and Joseph V. Roddy, of counsel), for appellants.

Rosa M. Tumialan, of Dykema Gossett PLLC, of Chicago, and Charles A. LeMoine and James Dougherty, both of Dykema Gossett PLLC, of Lisle, for appellee.

Justice ZENOFF delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Allison Leja, appeals from the dismissal of her second amended complaint against defendant, Community Unit School District 300. Plaintiff, a student at a high school owned and operated by defendant, allegedly was injured in her school's gymnasium when a volleyball net crank she was turning either "broke loose" or "snapped back" and struck her in the face. Plaintiff alleged in her two-count second amended complaint that defendant was negligent (count I) or engaged in willful and wanton conduct (count II). The trial court dismissed count I pursuant to section 2–619(a)(9) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2–619(a)(9) (West 2008)) after determining that defendant was immune from liability for negligence under section 3–106 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) ( 745 ILCS 10/3–106 (West 2008) ). The court then dismissed count II pursuant to section 2–615 of the Code ( 735 ILCS 5/2–615 (West 2008) ) after determining that plaintiff did not allege sufficient facts to plead willful and wanton conduct under the Act. Both dismissals were with prejudice. On appeal, plaintiff challenges the dismissal of count II only. Plaintiff argues that the warning label on the volleyball net crank was sufficient to put defendant on notice that the crank posed a risk of injury, and that instructing plaintiff to operate the crank bearing the warning label evinced an utter indifference to or conscious disregard for plaintiff's safety. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 The relevant background begins with the filing of plaintiff's second amended complaint. Count II of the complaint alleged the following facts. On September 3, 2009, plaintiff was a student at a high school owned and operated by defendant. On that date, plaintiff was operating a volleyball net crank on equipment provided by defendant, in the gymnasium of her high school. The crank was attached to a "collar" that was wrapped around a "standard." Affixed to the collar was a warning label stating, "CAUTION DO NOT OVERTIGHTEN—MAY CAUSE INJURIES OR DAMAGE TO EQUIPMENT." The collar was attached to the standard by set screws, which needed to be tightened to prevent movement. The manufacturer's instructions directed the user to securely tighten the set screws prior to use. The instructions also stated, "Cable tension must be released before adjusting net height," and warned, "Failure to do so may cause damage to the equipment, or cause personal injury."

¶ 4 Plaintiff further alleged that defendant knew or should have known that the volleyball net equipment was "unsafe, dangerous and/or defective." Defendant was "aware of prior difficulties with the volleyball net equipment, including but not limited to, the propensity of the standards to slide up and down if not tightened properly, the difficulty with the standards fitting into the floor properly, and the difficulties with the crank itself." Defendant also knew or should have known that the volleyball net equipment, which it had been using on nearly a daily basis for more than a year, was likely to cause injuries, "due to its tendency to ‘snap back,’ its unsecured collar, and/or overtightening of the equipment."

¶ 5 Plaintiff alleged that, notwithstanding the foregoing, defendant, through its employees or agents and "with an utter indifference and conscious disregard" for plaintiff's safety, did the following:

"a. Instructed [p]laintiff to operate the unsafe, defective, and/or dangerous equipment knowing such equipment would likely cause injury to the [p]laintiff.

b. Failed to ensure that the set screws on the collar were securely tightened prior to use, pursuant to product manufacturer's instructions.

c. Failed to instruct and/or explain to the [p]laintiff the proper way to operate the equipment, notwithstanding the fact that [d]efendant knew of [sic ] should have known of the prior difficulties with the volleyball net equipment and its propensity to cause harm to an individual through the labels provided on the volleyball equipment itself, the product manufacturer's manuals and/or instructions, Consumer and Product Safety Commission reports, product descriptions, and common sense.

d. Failed to inform the [p]laintiff of the dangers associated with the equipment, notwithstanding the fact that [d]efendant knew of [sic ] should have known of the prior difficulties with the volleyball net equipment and its propensity to cause harm to an individual through the labels provided on the volleyball equipment itself, the product manufacturer's manuals and/or instructions, Consumer and Product Safety Commission reports, product descriptions, and common sense.

e. Failed to prevent [p]laintiff from operating the dangerous equipment, notwithstanding the fact that [d]efendant knew of [sic ] should have known of the prior difficulties with the volleyball net equipment and its propensity to cause harm to an individual through the labels provided on the volleyball equipment itself, the product manufacturer's manuals and/or instructions, Consumer and Product Safety Commission reports, product descriptions, and common sense."

While plaintiff was operating the crank, thereby exerting tension on the collar, "the collar itself either broke loose or the crank itself snapped back, causing the [p]laintiff to be struck in the face by the crank."

¶ 6 Defendant moved, pursuant to section 2–615 of the Code, to dismiss count II of plaintiff's second amended complaint, arguing that plaintiff's factual allegations were insufficient to state a cause of action based on willful and wanton conduct. The trial court agreed with defendant and granted its motion. As stated, the trial court dismissed both counts of plaintiff's second amended complaint with prejudice. This timely appeal followed.

¶ 7 ANALYSIS

¶ 8 On appeal, plaintiff argues that the trial court erred in dismissing count II of her second amended complaint, because she alleged sufficient facts to state a cause of action based on defendant's alleged willful and wanton conduct. In particular, plaintiff argues that the warning labels on the volleyball net crank were sufficient to put defendant on notice that the crank posed a risk of injury, and that instructing plaintiff to operate the crank bearing the warning label evinced an utter indifference to or conscious disregard for plaintiff's safety.

¶ 9 A complaint is subject to dismissal under section 2–615 if it fails to state a cause of action upon which relief can be granted. Floyd v. Rockford Park District, 355 Ill.App.3d 695, 700, 291 Ill.Dec. 418, 823 N.E.2d 1004 (2005). When reviewing the dismissal of a complaint pursuant to section 2–615, a court must accept as true all well-pleaded facts and reasonable inferences drawn therefrom and view the complaint in the light most favorable to the plaintiff. Floyd, 355 Ill.App.3d at 699–700, 291 Ill.Dec. 418, 823 N.E.2d 1004. The complaint must allege sufficient facts to bring a claim within a legally recognized cause of action. Thurman v. Champaign Park District, 2011 IL App (4th) 101024, ¶ 8, 355 Ill.Dec. 575, 960 N.E.2d 18. A court should dismiss a cause of action pursuant to section 2–615 only if it is apparent that the plaintiff can prove no set of facts that would entitle him or her to recover. Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 13, 358 Ill.Dec. 613, 965 N.E.2d 1092. Our review of a section 2–615 dismissal is de novo. Simpkins, 2012 IL 110662, ¶ 13, 358 Ill.Dec. 613, 965 N.E.2d 1092.

¶ 10 Plaintiff concedes that defendant is a local public entity immune from liability for negligence under section 3–106 of the Act. That section specifically provides:

"Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury." 745 ILCS 10/3–106 (West 2008).

Accordingly, under section 3–106, defendant is liable to plaintiff only if it proximately caused plaintiff's injuries by willful and wanton conduct.

¶ 11 Section 1–210 of the Act defines "willful and wanton conduct" as follows:

" ‘Willful and wanton conduct’ as used in this Act means a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property. This definition shall apply in any case where a ‘willful and wanton’ exception is incorporated into any immunity under this Act." 745 ILCS 10/1–210 (West 2008).

Plaintiff does not allege that defendant's conduct was intentional. Thus, our inquiry is limited to the nonintentional aspect of the Act's definition of willful and wanton conduct, i.e., whether defendant engaged in "a course of action which * * * shows an utter indifference to or conscious disregard for the safety of others or their property." 745 ILCS 10/1–210 (West 2008). This definition of willful and wanton conduct contemplates more than mere inadvertence, incompetence, or unskillfulness. Geimer v. Chicago Park District, 272 Ill.App.3d 629, 637, 208 Ill.Dec. 891, 650...