Newby by Newby v. Lake Zurich Community Unit Dist. 95, 2-84-0527

• Citation: 90 Ill.Dec. 778,482 N.E.2d 1061,136 Ill.App.3d 92
• Decision Date: 27 August 1985
• Docket Number: No. 2-84-0527,2-84-0527
• Parties: , 90 Ill.Dec. 778, 27 Ed. Law Rep. 904 Kristen NEWBY, a minor, by Mary NEWBY, her mother and next friend, Plaintiff-Appellant, v. LAKE ZURICH COMMUNITY UNIT DISTRICT 95, a body corporate and politic, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1061

482 N.E.2d 1061

136 Ill.App.3d 92, 90 Ill.Dec. 778,

27 Ed. Law Rep. 904

Kristen NEWBY, a minor, by Mary NEWBY, her mother and next friend, Plaintiff-Appellant, v. LAKE ZURICH COMMUNITY UNIT DISTRICT 95, a body corporate and politic, Defendant-Appellee.

No. 2-84-0527.

Appellate Court of Illinois Second District.

Aug. 27, 1985.

Donald T. Morrison & Assoc., Waukegan for plaintiff-appellant.

Brydges, Riseborough, Morris, Franke & Miller, Louis W. Brydges, Jr., and George E. Riseborough, Waukegan, for defendant-appellee.

UNVERZAGT, Justice.

The plaintiff, Kristen Newby, a minor, by Mary Newby, her mother and next friend, appeals from the judgment of the circuit court of Lake County which granted the motion of the defendant, Lake Zurich Community Unit, District 95 (the District), to dismiss plaintiff's first amended complaint for failure to state a cause of action, pursuant to section 2-615 of the Civil Practice Law. (Ill.Rev.Stat.1983, ch. 110, par. 2-615.) She appeals, contending that the complaint stated a cause of action for wilful and wanton misconduct.

We initially affirmed the judgment of the trial court by an order pursuant to Supreme Court Rule 23 (87 Ill.2d R. 23). Subsequently, we granted the plaintiff's request for rehearing, defendant answered, and plaintiff replied. Upon our further consideration of the parties' original briefs and their briefs on rehearing in accordance with Supreme Court Rule 367(d) (87 Ill.2d R. 367(d)), and the oral argument, we adhere to our original decision to affirm the judgment of the trial court.

Plaintiff filed a one-count first amended complaint which, in relevant part, alleged as follows:

"1. Plaintiff, KRISTEN NEWBY, is a minor, born on April 15, 1966, and brings this action by MARY NEWBY, her mother and next friend, and at all times herein alleged plaintiff was a student at Lake Zurich Community High School.

2. Defendant, LAKE ZURICH COMMUNITY UNIT, DISTRICT NO. 95, a body corporate and politic, is a community unit school district which owns, operates and maintains a public high school in the Village of Lake Zurich, Lake County, Illinois.

3. At all times herein alleged, there was a fieldhouse constructed on the playfield of defendant's premises, immediately adjacent to which there was a tree, and high school students on many occasions prior to the incident herein alleged had climbed the tree to gain access to the fieldhouse roof.

4. Defendant had knowledge that numerous high school children in the past frequented the vicinity and had climbed the tree to gain access to the roof of the fieldhouse and defendant, prior to the incident herein alleged, had caused the tree to be trimmed and altered so as to make climbing it more difficult.

5. The altered and trimmed tree in close proximity to the fieldhouse on a public school playfield constituted an extraordinary risk of harm, and defendant knew or should have known that such circumstances were likely to cause injury to high school children.

6. The expense and inconvenience of remedying the condition by removing the tree or providing adequate guarding was slight compared to the risk of injury to the high school children.

7. Defendant was guilty of wilful and wanton misconduct by consciously and recklessly disregarding the rights and safety of others in that:

a. It failed to remove the tree

b. It failed to provide any guarding device to prevent high school children from climbing the tree.

8. On or about October 21, 1983, plaintiff, KRISTEN NEWBY, climbed the aforesaid tree, intending thereby to gain access to the fieldhouse roof and while ascending the tree to gain position to transfer to the fieldhouse roof, slipped, was unable to regain footing or handhold, fell to the ground and was injured as a direct and proximate result of the aforesaid misconduct of the defendant."

The trial court dismissed the complaint on the basis of the authority of Cope v. Doe (1984), 102 Ill.2d 278, 80 Ill.Dec. 40, 464 N.E.2d 1023, and Corcoran v. Village of Libertyville (1978), 73 Ill.2d 316, 22 Ill.Dec. 701, 383 N.E.2d 177, finding that it was not sufficient to state a cause of action, and that the facts pleaded as a matter of law were not actionable. As noted, we initially agreed, by way of a Rule 23 order, with the judgment entered by the trial court. The Rule 23 order was withdrawn upon our grant of rehearing. Our decision there, however, like that of the trial court, was premised essentially on our view that the plaintiff's complaint failed to establish any legal basis for liability in that it failed to allege facts which showed defendant owed plaintiff a duty.

In her petition for rehearing, plaintiff advances several arguments. In the first of these, plaintiff emphasizes that the instant cause is not one premised on mere negligence. Rather, it is alleged that the defendant's act of trimming the tree amounted to wilful and wanton misconduct, an "independent tort" (Morrow v. L.A. Goldschmidt Associates, Inc. (1984), 126 Ill.App.3d 1089, 82 Ill.Dec. 152, 468 N.E.2d 414), because it knew or should have known that the altered and trimmed tree in close proximity to the fieldhouse on a public school playfield constituted an extraordinary risk of harm likely to cause injury to high school children.

The distinction between an ordinary negligence cause of action and a cause of action based on wilful and wanton misconduct is found in the differing allegations required as to the state of mind of the defendant at the time of the breach. "[A] count in ordinary negligence will indicate that defendant acted 'carelessly,' while a count for wilful and wanton misconduct will indicate that defendant acted with either intentional or conscious disregard of his duty to plaintiff." (Pendowski v. Patent Scaffolding Co. (1980), 89 Ill.App.3d 484, 492, 44 Ill.Dec. 544, 411 N.E.2d 910.) Wilful and wanton misconduct has been defined as "a course of action which shows either a deliberate intention to harm or an utter indifference to, or conscious disregard for, the safety of others." Fuller v. Justice (1983), 117 Ill.App.3d 933, 943, 73 Ill.Dec. 144, 453 N.E.2d 1133, citing Gregor v. Kleiser (1982), 111 Ill.App.3d 333, 336, 67 Ill.Dec. 38, 443 N.E.2d 1162, and Kapka v. Urbaszewski (1964), 47 Ill.App.2d 321, 324, 198 N.E.2d 569.

As we perceive the thrust of plaintiff's argument she contends that because wilful and wanton misconduct is "an independent tort" and because her complaint is pleaded solely in wilful and wanton misconduct, the question of the existence of defendant's duty is not at issue. Rather, the court must analyze the defendant's state of mind, and the issue is whether a cause pleaded in wilful and wanton misconduct may be dismissed on the question of the existence of a duty. Plaintiff asserts that the presence of a duty is "not at all necessary" to the imposition of fault for wilful and wanton misconduct. Illinois law, however, clearly holds to the contrary.

In Morrow v. L.A. Goldschmidt Associates, Inc. (1984), 126 Ill.App.3d 1089, 1094, 82 Ill.Dec. 152, 468 N.E.2d 414, a case upon which plaintiff's reliance is misplaced, the court states:

"Wilful and wanton misconduct is essentially the separate tort of aggravated negligence. Dean Prosser explains:

'A different approach, at least in theory, looks to the actor's real or supposed state of mind. Lying between intent to do harm, which * * * includes proceeding with knowledge that the harm is substantially certain to occur, and the mere unreasonable risk of harm to another involved in ordinary negligence, there is a penumbra of what has been called "quasi intent." To this area the words "wilful," "wanton," or "reckless," are customarily applied * * * They have been grouped together as an aggravated form of negligence, differing in quality rather than in degree from ordinary lack of care. * * * They apply to conduct which is still merely negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if it were so intended. Thus, it is held to justify an award of punitive damages, and may justify a broader duty, and more extended liability for consequences * * *.' " (Emphasis added.) (Prosser, Torts sec. 34, at 184 (4th ed.1971).)

Consistent with Prosser's explanation is our supreme court's discussion of the necessary elements of a wilful and wanton act:

" ' " * * * Ill will is not a necessary element of a wanton act. To constitute an act wanton, the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury. An intentional disregard of a known duty necessary to the safety of the person or property of another, and an entire absence of care for the life, person or property of others, such as exhibits a conscious indifference to consequences, makes a case of constructive or legal wilfulness." ' Chmiel v. Pierce (1973), 9 Ill.App.3d 130, 132-33, 291 N.E.2d 862, 864, quoting Bartolucci v. Falleti (1943), 382 Ill. 168, 46 N.E.2d 980." (Emphasis added.) 126 Ill.App.3d 1089, 1094-95, 82 Ill.Dec. 152, 468 N.E.2d 414.

To sufficiently plead wilful and wanton conduct, a plaintiff must allege facts demonstrating a duty of defendant and a breach of that duty which proximately caused the plaintiff's injury. (Fuller v. Justice (1983), 117 Ill.App.3d 933, 944, 73 Ill.Dec. 144, 453 N.E.2d 1133; Booker v. Chicago Board of Education (1979), 75 Ill.App.3d 381, 385, 31 Ill.Dec. 250, 394 N.E.2d 452; Chisolm v. Stephens (1977), 47 Ill.App.3d 999, 1004, 7 Ill.Dec. 795, 365 N.E.2d 80.) The mere conclusional allegation of wilful and wanton misconduct is not sufficient; facts must be alleged from which the law would raise a duty, and a showing that the omission of such duty resulted in injury. Clay v....