McCann v. Presswood

• Decision Date: 08 December 1999
• Docket Number: No. 4-99-0423.,4-99-0423.
• Parties: Gordon McCANN, Plaintiff-Appellant, v. Ted PRESSWOOD, d/b/a Ted Presswood Weed Cutting Service, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

721 N.E.2d 811

308 Ill. App.3d 1068

242 Ill.Dec. 532

Gordon McCANN, Plaintiff-Appellant, v. Ted PRESSWOOD, d/b/a Ted Presswood Weed Cutting Service, Defendant-Appellee.

No. 4-99-0423.

Appellate Court of Illinois, Fourth District.

Argued October 13, 1999.

Decided December 8, 1999.

Jack C. Vieley (argued), Bloomington, for Gordon McCann.

Barbara B. Collins (argued), Springfield, for Ted Presswood.

Justice McCULLOUGH delivered the opinion of the court:

In November 1998, plaintiff, Gordon McCann, filed an amended complaint against defendant, Ted Presswood, d/b/a Ted Presswood Weed Cutting Service, alleging two counts of common-law negligence and two counts of intentional misconduct. Defendant moved to strike, arguing plaintiff's complaint improperly sought punitive damages in violation of section 2-604.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-604.1 (West 1994)). In May 1999, the trial court dismissed plaintiff's intentional misconduct counts with prejudice, and plaintiff voluntarily dismissed the remaining counts. Plaintiff appeals, arguing the trial court erred by dismissing the intentional misconduct counts. We affirm.

In June 1998, plaintiff filed a four-count complaint against defendant for property damage. According to the complaint, the City of Lincoln hired defendant, as an independent contractor, to cut grass growing on two pieces of property owned by plaintiff.

Counts I and II addressed defendant's conduct at the first property. Both counts were identical except plaintiff predicated count I on a common-law negligence theory and count II on a willful and wanton theory. Counts I and II alleged defendant, while operating his mowing equipment, damaged an automobile, cracked and scraped the sidewalk, tore branches off a pine tree, broke a window, chipped the foundation of the home, damaged landscaping timbers, destroyed a pair of tennis shoes and a swimming pool liner, ran over a compost pile, and "crush[ed] tender turf." Counts III and IV addressed defendant's conduct at the second property. Again, both counts were identical except plaintiff predicated count III on a common-law negligence theory and count IV on a willful and wanton theory. Counts III and IV alleged defendant damaged a building foundation, destroyed evergreens and a maple tree, ruined an embankment, and "crush[ed] tender turf."

Each count of the complaint contained a separate prayer for relief. In counts I and III, plaintiff requested $15,000 in actual damages. However, in counts II and IV, plaintiff requested "$15,000 in actual damages and * * * $45,000 for punitive damages plus costs of suit." In July 1998, defendant moved to strike, arguing plaintiff improperly requested punitive damages without leave of the court as required under section 2-604.1 of the Code. The docket-sheet entry indicates that, in November 1998, the trial court dismissed plaintiff's complaint with leave to refile.

Also in November 1998, plaintiff filed an amended complaint. Plaintiff's amended complaint essentially contained the identical language of the original complaint except plaintiff now predicated counts II and IV on an intentional misconduct theory rather than a willful and wanton theory. Again, plaintiff requested punitive damages in counts II and IV.

In December 1998, plaintiff filed a motion to strike, again arguing plaintiff violated section 2-604.1 of the Code by filing a complaint requesting punitive damages. In May 1999, plaintiff filed a response, arguing section 2-604.1 did not apply because he based counts II and IV on an intentional misconduct theory rather than negligence. Therefore, plaintiff argued, he could properly request punitive damages.

In May 1999, the trial court granted plaintiff's motion to voluntarily dismiss counts I and III with leave to refile. The trial court also entered an order dismissing counts II and IV with prejudice, finding plaintiff violated section 2-604.1 by requesting punitive damages in his amended complaint. The court further noted that, in addition to plaintiff's failure to make a pretrial motion seeking the court's permission to add a claim for punitive damages under section 2-604.1, plaintiff "declined [the][c]ourt's offer to hold a hearing regarding whether sufficient facts exist[ed] to warrant addition of a claim for punitive damages." Plaintiff then filed the instant appeal.

Section 2-604.1 of the Code states in relevant part:

"In all actions on account of bodily injury or physical damage to property, based on negligence, or product liability based on strict tort liability, where punitive damages are permitted no complaint shall be filed containing a prayer for relief seeking punitive damages. However, a plaintiff may, pursuant to a pretrial motion and after a hearing before the court, amend the complaint to include a prayer for relief seeking punitive damages." (Emphasis added.) 735 ILCS 5/2-604.1 (West 1994).

Statutory construction is a matter of law and is considered de novo. Branson v. Department of Revenue, 168 Ill.2d 247, 254, 213 Ill.Dec. 615, 659 N.E.2d 961, 965 (1995)

. The principal rule of statutory construction is to ascertain and give effect to the legislature's intent. Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc., 158 Ill.2d 76, 81, 196 Ill.Dec. 655, 630 N.E.2d 820, 822 (1994). To determine the legislature's intent, courts first look to the statute's language. Zekman v. Direct American Marketers, Inc., 182 Ill.2d 359, 368-69, 231 Ill.Dec. 80, 695 N.E.2d 853, 858 (1998). Courts accord the statute's language its plain and commonly understood meaning. R.L. Polk & Co. v. Ryan, 296 Ill.App.3d 132, 140, 230 Ill.Dec. 749, 694 N.E.2d 1027, 1033 (1998). If possible, courts must give effect to every word, clause, and sentence and may not read a statute so as to render any part inoperative, superfluous, or insignificant. Bauer v. H.H. Hall Construction Co., 140 Ill.App.3d 1025, 1028, 95 Ill.Dec. 79, 489 N.E.2d 31, 33 (1986). Courts must not depart from a statute's plain language by reading into it exceptions, limitations, or conditions the legislature did not express. See Kraft, Inc. v. Edgar, 138 Ill.2d 178, 189, 149 Ill.Dec. 286, 561 N.E.2d 656, 661 (1990).

Section 1-106 of the Code requires that we construe the Code liberally. 735 ILCS 5/1-106 (West 1998). The legislature enacted section 2-604.1 of the Code to discourage plaintiffs from seeking and receiving punitive damage awards. See Spires v. Mooney Motors, Inc., 229 Ill. App.3d 917, 919, 172 Ill.Dec. 162, 595 N.E.2d 225, 226 (1992). Illinois courts have consistently held that punitive damages are disfavored at law and are generally inappropriate absent evidence of outrageous conduct or acts committed with malice or a reckless indifference toward the rights of others. See, e.g., Loitz v. Remington Arms Co., 138 Ill.2d 404, 414, 150 Ill.Dec. 510, 563 N.E.2d 397, 401 (1990)

; Tucker v. Illinois Power Co., 232 Ill.App.3d 15, 30, 173 Ill.Dec. 512, 597 N.E.2d 220, 231 (1992).

Here, plaintiff clearly sought punitive damages on a complaint based, in part, on negligence. Plaintiff argues that while counts II and IV (intentional misconduct) contained prayers for punitive damages, counts I and III (negligence counts) contained no such prayer, and therefore section 2-604.1 does not apply. We disagree. Whether counts I and III contained a prayer for punitive damages is irrelevant to our analysis. Section 2-604.1 speaks of the entire action and does not narrowly restrict punitive damages requests in all counts based on negligence but, rather, in all complaints based on negligence. Construing the Code liberally and in view of the strong policy considerations against punitive damages, we find section 2-604.1 applies and precludes plaintiffs from requesting punitive damages on the face of any complaint based, even in part, on negligence.

Plaintiff's complaint uses the term "negligence" in the strict "ordinary negligence" sense. We are mindful that punitive damages are not generally available for acts of ordinary negligence. See Loitz, 138 Ill.2d at 415, 150 Ill.Dec. 510, 563 N.E.2d at 402. Further, we agree with the first district's finding in Stojkovich v. Monadnock Building, 281 Ill. App.3d 733, 741, 217 Ill.Dec. 35, 666 N.E.2d 704, 710 (1996), that section 2-604.1 does not operate to allow punitive damages for ordinary...