Vilardo v. Barrington Cmty. Sch. Dist. 220

• Decision Date: 20 December 2010
• Docket Number: No. 2–10–0045.,2–10–0045.
• Citation: 264 Ed. Law Rep. 326,346 Ill.Dec. 699,406 Ill.App.3d 713,941 N.E.2d 257
• Parties: Thomas J. VILARDO, Plaintiff–Appellant,v.BARRINGTON COMMUNITY SCHOOL DISTRICT 220, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

406 Ill.App.3d 713
941 N.E.2d 257
346 Ill.Dec. 699
264 Ed. Law Rep. 326

Thomas J. VILARDO, Plaintiff–Appellant,
v.
BARRINGTON COMMUNITY SCHOOL DISTRICT 220, Defendant–Appellee.

No. 2–10–0045.

Appellate Court of Illinois, Second District.

Dec. 20, 2010.

[941 N.E.2d 259]

Mark C. Murnane, O'Connor & Nakos, Ltd., Chicago, for Thomas J. Vilardo.Charles A. LeMoine, Rosa M. Tumialan, Dykema Gossett PLLC, Chicago, Barrington Community School District 220.Justice BURKE delivered the opinion of the court:

[346 Ill.Dec. 701 , 406 Ill.App.3d 713] An “L” screen is a free-standing, L-shaped structure used in baseball batting practice to protect the pitcher. While behind the screen, the pitcher throws the ball through a cutout portion of the screen, and the screen shields the pitcher from balls hit toward him. Defendant, Barrington Community School District 220, operates a baseball field with batting cages and L screens at Barrington High School.

Plaintiff, Thomas J. Vilardo, took his son, Michael, to defendant's baseball field to use a batting cage. Plaintiff sat on a bucket behind an L screen and pitched to Michael. Michael hit several balls to the screen, where they bounced harmlessly to the ground. However, one ball struck the screen, passed through the mesh, and struck plaintiff's face, causing injury.

[406 Ill.App.3d 714] Plaintiff filed a two-count complaint, alleging claims of negligence and willful and wanton conduct based on defendant providing defective equipment. The trial court dismissed with prejudice the negligence claim pursuant to section 2–619(a)(9) of the Code of Civil Procedure (Code) (see 735 ILCS 5/2–619(a)(9) (West 2008)) on the ground that section 3–106 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3–106 (West 2008)) immunized defendant from liability. The count alleging willful and wanton conduct was dismissed without prejudice under section 2–615 (see 735 ILCS 5/2–615 (West 2008)).

Plaintiff filed an amended complaint alleging only willful and wanton conduct. The trial court granted defendant summary judgment on the amended complaint (see 735 ILCS 5/2–1005 (West 2008)).

Plaintiff appeals the dismissal of the negligence count and the summary judgment entered for defendant on the willful-and-wanton-conduct count. Defendant asserts that plaintiff forfeited review of the negligence claim by failing to replead it or otherwise incorporate it by reference in the amended complaint, but plaintiff responds that the dismissal with prejudice barred him from doing so. Defendant further argues that, even if plaintiff did not forfeit the negligence claim, the dismissal should be affirmed because the claim lacks merit. Defendant also contends that summary judgment was proper. We agree with defendant. We hold that (1) plaintiff procedurally defaulted any challenge to the dismissal of the negligence count, which in any event lacks merit; and (2) the trial court did not err in granting defendant

[346 Ill.Dec. 702 , 941 N.E.2d 260]

summary judgment on the willful-and-wanton-conduct count. We affirm.

FACTS

On January 31, 2008, plaintiff filed a two-count complaint. Plaintiff alleged that, on June 25, 2007, defendant operated a batting cage in Barrington and owed plaintiff a duty to operate the premises safely, but had allowed the premises to become dangerous and knew of the dangerous condition. Specifically, plaintiff alleged that defendant (1) improperly operated, managed, maintained, and controlled the premises; (2) allowed and permitted a hole to be present in the net protecting the pitcher; (3) failed to make a reasonable inspection of the premises and the net when defendant knew or should have known that such an inspection was necessary to prevent plaintiff's injury; and (4) failed to warn plaintiff of the net's dangerous condition when defendant knew or should have known that such a warning was necessary to prevent plaintiff's injury. Plaintiff alleged that, as a direct proximate result of defendant's conduct, plaintiff was struck and [406 Ill.App.3d 715] injured by a baseball. The two counts of the complaint were nearly identical except count I characterized defendant's conduct as negligence and count II characterized defendant's conduct as willful and wanton.

On April 22, 2008, defendant filed a combined motion to dismiss under section 2–619.1 of the Code. See 735 ILCS 5/2–619.1 (West 2008) (providing for combined motions seeking relief under sections 2–615 and 2–619). Defendant argued that both counts should be dismissed under section 2–619 of the Code in that section 3–106 of the Act was affirmative matter defeating the claims. Immunity under the Act is affirmative matter properly raised in a section 2–619(a)(9) motion to dismiss. Arteman v. Clinton Community Unit School District No. 15, 198 Ill.2d 475, 479, 261 Ill.Dec. 507, 763 N.E.2d 756 (2002).

Defendant alternatively argued that the willful-and-wanton-conduct count should be dismissed under section 2–615 for failing to state a claim. The trial court dismissed with prejudice the negligence count under section 2–619(a)(9), and the court dismissed without prejudice the willful-and-wanton-conduct count under section 2–615.

On August 18, 2008, plaintiff filed an amended complaint alleging that defendant engaged in willful and wanton conduct. Specifically, plaintiff asserted that defendant knew there was a hole in the protective screen, which created a dangerous condition for persons using the premises, and that defendant willfully and wantonly failed to address this dangerous condition. Defendant allegedly used the batting cage daily, knew of the hole in the screen, left the gate to the facility unlocked, and knew that the public used the batting cage and protective screen regularly. The amended complaint alleged that defendant committed the following willful and wanton acts and omissions: (1) improperly operated, managed, maintained, and controlled the premises; (2) allowed and permitted a hole to be present in the net protecting the pitcher; (3) failed to make a reasonable inspection of the premises and the net when defendant knew or should have known that such an inspection was necessary to prevent plaintiff's injury; (4) failed to warn plaintiff of the net's dangerous condition when defendant knew or should have known that such a warning was necessary to prevent plaintiff's injury; and (5) failed to lock the gate to the facility. Plaintiff alleged that, as a direct proximate result of defendant's willful and wanton conduct, plaintiff was struck and injured by a baseball.

Defendant moved for summary judgment, arguing that sections 3–102 and 2–

[346 Ill.Dec. 703 , 941 N.E.2d 261]

201 of the Act provided immunity from liability and that defendant did not proximately cause plaintiff's injury. Plaintiff testified in his deposition that he had used the batting cages at Barrington[406 Ill.App.3d 716] High School several times before the date of the injury. Plaintiff estimated that he had used the cages 50 times in three years. Plaintiff used the cages on evenings and weekends to help his son warm up before games. Plaintiff used the cages on the date of the injury to help his son warm up before a game that was to be held at a field nearby. Plaintiff testified that he had extensive experience using pitcher's nets at defendant's school and at other locations, and plaintiff had not experienced any problems with defendant's nets before the injury.

Plaintiff testified that he began using a batting cage around 4 p.m. on the date of the incident. A summer baseball league game was being played at the time. Neither plaintiff nor his son inspected the screen before using it. Plaintiff stepped behind the screen and positioned himself so his entire body was behind it. Plaintiff sat on a bucket of balls. Plaintiff did not see any holes in the net, which was about 20 to 25 feet from the batter.

Plaintiff began pitching balls to his son. Plaintiff threw about 10 pitches, which he estimated to be 60 to 70 miles per hour. Plaintiff's son hit the balls, some of which struck the screen. The last pitch was hit straight back toward plaintiff and struck him in the left eye.

Coach Wisniewski testified that he was a teacher and baseball coach employed by defendant. Wisniewski testified that it is standard practice for coaches to inspect the pitcher's nets before they are used. If he saw a hole or tear in a net, he would not allow the students to use the net, and the net would be moved to the side. Wisniewski denied seeing a baseball go through the net during his four-year employment by defendant. Wisniewski also denied seeing someone hit in the face by a baseball while using a pitcher's net.

Wisniewski explained that players using the net had to wear helmets and stand behind the net, which was to be placed a safe distance from the batter. Players who noticed any problems with the net were instructed to advise the coach. Wisniewski also explained that the net is usually placed 50 to 60 feet from the batter. Barrington High School players in the summer baseball league used the batting cages and fields during the summer baseball season. The players use the batting cages before and during league games. Wisniewski coached during the 2007 summer baseball season. The players would have used the nets to warm up for the game that was being played when plaintiff was injured. There were no problems with the nets used by the players on the date of the incident.

Wisniewski testified that he did not witness plaintiff's injury, but parents at the game told him about it. Wisniewski believed that plaintiff was hit by the ball because he had not positioned himself [406 Ill.App.3d 717] completely behind the net. Wisniewski looked at the net after the incident and saw no hole or tear in the net.

Coach Hawrysko testified that he had been a physical education teacher and a baseball coach at Barrington High School for 11 years. Hawrysko denied seeing holes in...