Oravek v. Community School Dist. 146

• Decision Date: 22 June 1994
• Docket Number: No. 1-93-0320,1-93-0320
• Citation: 264 Ill.App.3d 895,202 Ill.Dec. 15,637 N.E.2d 554
• Parties: , 202 Ill.Dec. 15, 92 Ed. Law Rep. 1244 Kimberly ORAVEK, a minor, by her mother and next friend, Kathy Brann, Plaintiff-Appellant, v. COMMUNITY SCHOOL DISTRICT 146, Defendant-Appellee (Mark J. Liscak, a minor, Jerry Liscak and Anna Liscak, Defendants).
• Court: United States Appellate Court of Illinois

Page 554

637 N.E.2d 554

264 Ill.App.3d 895, 202 Ill.Dec. 15,

92 Ed. Law Rep. 1244

Kimberly ORAVEK, a minor, by her mother and next friend Kathy Brann, Plaintiff-Appellant, v. COMMUNITY SCHOOL DISTRICT 146, Defendant-Appellee (Mark J Liscak, a minor, Jerry Liscak and Anna Liscak, Defendants).

No. 1-93-0320.

Appellate Court of Illinois,

First District, Third Division.

June 22, 1994.

James A. Stamos & Associates, Chtd., Chicago, for appellant.

Jack F. Clifford & Associates, Ltd., Chicago (John W. Clifford, Thomas J. Finnegan, Jr., of counsel), for appellee.

Justice GREIMAN delivered the opinion of the court:

In this personal injury case, plaintiff Kimberly Oravek, a minor, by her mother and next friend, Kathy Brann, appeals the trial court's order which granted the motion of defendant Community School District 146 to dismiss count II of her fourth amended complaint alleging wilful and wanton conduct.

On appeal plaintiff contends that the question of wilful and wanton conduct must be decided by the trier of fact, not by the court, and that count II of her fourth amended complaint sufficiently states a cause of action for wilful and wanton conduct to withstand a motion to dismiss under section 2-615 (735 ILCS 5/2-615 (West 1992)).

We disagree with both of plaintiff's contentions and affirm the dismissal of her wilful and wanton count against defendant. The fourth amended complaint fails to state facts upon which the trier of fact can find wilful and wanton conduct.

About 7 p.m. on September 17, 1988, (a Saturday), the 12-year-old plaintiff was riding a bicycle on defendant's premises at Kruse School in Orland Park, Illinois. When she turned a corner, plaintiff encountered a skateboard ramp, unsuccessfully attempted to avoid it, ran the bicycle partially up the ramp, fell and sustained injuries.

The ramp, approximately four feet high, had been transported to the school property by codefendants Mark Liscak, a minor, and his parents, Jerry and Anna Liscak, who organized and conducted an event known as a skate jamboree or skate jam on the school property. The Liscak codefendants are the subjects of a negligence count in plaintiff's fourth amended complaint and are not a part of the present appeal.

In her fourth amended complaint plaintiff alleges that defendant "through its agents and employees had specific knowledge of the presence of [the] skateboard ramp on the situs of Kruse School" and failed to remove the ramp until after plaintiff's accident. Plaintiff further alleges that defendant engaged in wilful and wanton conduct because school policy prohibited skateboards and skateboard ramps at Kruse School and that paragraph 13 of the fourth amended complaint provides:

"With conscious and reckless disregard of the safety of the Plaintiff and others failed to remove and/or destroy said skateboard ramp from the situs of Kruse School although, said Defendant, SCHOOL DISTRICT 146, through its agents and employees knew or in the exercise of ordinary care should have known:

1) Said skateboard ramp had been abandoned on the school situs.

2) Said skateboard ramp was inherently dangerous to any person using same.

3) Said skateboard ramp was an attractive nuisance by its very design, inviting children to play upon or use same.

4) The presence of said skateboard ramp was against school policy and failing to remove said ramp was in violation of school policy."

Defendant filed a section 2-615 motion to dismiss asserting that plaintiff's fourth amended complaint failed to state a cause of action. (735 ILCS 5/2-615 (West 1992).) Alternatively defendant contended that even if the allegations in plaintiff's fourth amended complaint supported wilful and wanton conduct, defendant had immunity under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act). 745 ILCS 10/1-101 et seq. (West 1992).

On December 18, 1992, the trial court granted defendant's motion and found that plaintiff's allegations of fact did not constitute wilful and wanton conduct on the part of defendant.

Plaintiff first contends that the issue of wilful and wanton conduct is always a fact question to be decided by the jury, not by the court. We disagree.

"A judgment on the pleadings is proper only if questions of law and not of fact exist after the pleadings have been filed." Harris Trust and Savings Bank v. Donovan (1991), 145 Ill.2d 166, 172, 163 Ill.Dec. 854, 582 N.E.2d 120 (affirmed dismissal of the plaintiff's complaint pursuant to section 2-615).

Whether conduct constitutes wilful and wanton wrongdoing is generally reserved for the trier of fact but a court may decide the issue in determining whether or not a complaint sufficiently alleges such conduct to state a cause of action. Ward v. Community Unit School District No. 220 (1993), 243 Ill.App.3d 968, 975, 184 Ill.Dec. 901, 614 N.E.2d 102.

Plaintiff next asserts that the factual allegations set forth in her fourth amended complaint sufficiently state a cause of action for wilful and wanton conduct on the part of defendant.

Defendant contends that the dismissal of count II was proper because plaintiff failed to plead sufficient facts to support their purported wilful and wanton cause of action. Defendant argues that plaintiff's complaint, at best, alleges that defendant failed to remove a skateboard ramp placed on school premises by unauthorized third persons who were not connected with the school district and that such omission (i.e., failure to remove the ramp) cannot support the egregious conduct necessary for wilful and wanton misconduct. Defendant further argues that the failure of a school to remove a skateboard ramp which it did not own, which was placed in connection with an event it did not organize or approve, in a period of time less than a day, on a non-school day (Saturday), simply does not amount to wilful and wanton conduct.

Whether or not to grant a motion to dismiss for failure to state a cause of action rests within the discretion of the trial court. (Geick v. Kay (1992), 236 Ill.App.3d 868, 177 Ill.Dec.340,603N.E.2d121; In re Estate of Casey (1991), 222 Ill.App.3d 12, 164 Ill.Dec. 529, 583 N.E.2d 83.) The issue to be decided is whether sufficient facts are contained in the pleadings which, if established, could entitle the plaintiff to relief. Kolegas v. Heftel Broadcasting Corp. (1992), 154 Ill.2d 1, 9, 180 Ill.Dec. 307, 607 N.E.2d 201.

A court decides a section 2-615 motion solely upon the allegations of the complaint and not upon affidavits, affirmative factual defenses or other supporting materials. (Cahill v. Eastern Benefit Systems, Inc. (1992), 236 Ill.App.3d 517, 520, 177 Ill.Dec. 718, 603 N.E.2d 788.) For the purpose of a section 2-615 motion to dismiss, we must accept as true all well-pleaded facts in the complaint and all reasonable inferences which can be drawn from those facts, interpret the allegations in the light most favorable to the plaintiff and determine whether the allegations are sufficient to set forth a cause of action upon which relief may be granted. Kolegas, 154 Ill.2d at 8-9, 180 Ill.Dec. 307, 607 N.E.2d 201; Burdinie v. Village of Glendale Heights (1990), 139 Ill.2d 501, 505, 152 Ill.Dec. 121, 565 N.E.2d 654.

Although we must take all well-pleaded facts as true, we must also disregard mere conclusions of law or fact unsupported by the facts alleged. (Capitol Indemnity Corp. v. Stewart Smith Intermediaries, Inc. (1992), 229 Ill.App.3d 119, 123, 171 Ill.Dec. 52, 593 N.E.2d 872; Washington v. Chicago Board of Education (1990), 204 Ill.App.3d 1091, 1094, 150 Ill.Dec. 11, 562 N.E.2d 541.) The bare characterization of certain acts as wilful and wanton misconduct is not sufficient to withstand a motion to dismiss because such misconduct must be manifested by facts alleged in the complaint. Cipolla v. Bloom Township High School District No. 206 (1979), 69 Ill.App.3d 434, 437, 26 Ill.Dec. 407, 388 N.E.2d 31.

Although we must construe pleadings liberally with a view to doing substantial justice between the parties (735 ILCS 5/2-603(c) (West 1992)), the plaintiff is not relieved from the duty of including sufficient factual averments in her complaint. (Harris v. Johnson (1991), 218 Ill.App.3d 588, 591-92, 161Ill.Dec.680,578N.E.2d1326.) Illinois is a fact-pleading State and accordingly, a complaint must allege sufficient facts to bring the plaintiff's claim within the scope of a legally recognized cause of action. Adkins v. Sarah Bush Lincoln Health Center (1989), 129 Ill.2d 497, 136 Ill.Dec. 47, 544 N.E.2d 733; Geick (1992), 236 Ill.App.3d at 873, 177 Ill.Dec. 340, 603 N.E.2d 121 (notice pleading has not been adopted); Capitol Indemnity Corp., 229 Ill.App.3d at 123, 171 Ill.Dec. 52, 593 N.E.2d 872.

"To sufficiently plead willful and wanton misconduct, a plaintiff must allege either a deliberate intention to harm or an utter indifference to or conscious disregard for the welfare of the plaintiff." Adkins, 129 Ill.2d at 518, 136 Ill.Dec. 47, 544 N.E.2d 733; see also Burke v. 12 Rothschild's Liquor Mart, Inc. (1992), 148 Ill.2d 429, 448, 170 Ill.Dec. 633, 593 N.E.2d 522 (the definition of wilful and wanton conduct is virtually the same whether used for the purpose of a pleading requirement, in a jury instruction or in the Tort Immunity Act (745 ILCS 10/1-210 (West 1...