APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE KENNETH L. GILLIS, JUDGE PRESIDING.
Presiding Justice Scariano delivered the opinion of the court: DiVITO and McCORMICK, JJ., concur.
The opinion of the court was delivered by: Scariano
PRESIDING JUSTICE SCARIANO delivered the opinion of the court:
Plaintiff Earlest Carter's complaint alleged that on September 1, 1990, defendants acted negligently and willfully and wantonly with respect to the maintenance of tennis courts on which he was playing when he backed into a hole, injuring his ankle. New Trier East High School was dismissed as a party defendant on August 19, 1992. The Board filed an answer denying the allegations forming the gravamen of the complaint, and thereafter sought summary judgment, which the trial judge granted.
Plaintiff now appeals, claiming that the judge erred in finding insufficient allegations in the complaint as a matter of law to establishwillful and wanton conduct on the part of the Board, and in improperly equating willful and wanton conduct with criminal conduct. No issue is raised on appeal regarding the trial judge's dismissal of plaintiff's negligence count.
Initially, we note that this case has been unnecessarily complicated because of the failure of the parties in the trial court to draw a clear distinction between the proper inquiry required to be made regarding a motion to dismiss and the one applicable to a summary judgment motion. (Compare 735 ILCS 5/2-615 (West 1992), with 735 ILCS 5/2-1005 (West 1992).) The distinction between the two was thoroughly and accurately set forth by this court in Barber-Colman Co. v. A & K Midwest Insulation Co. (1992), 236 Ill. App. 3d 1065, 603 N.E.2d 1215, 177 Ill. Dec. 841.
"A motion to dismiss under section 2-615 attacks only the legal sufficiency of the complaint. [Citation.] *** A significant difference between section 2-615 motions, as compared to *** motions for summary judgment is that a section 2-615 motion is based on the pleadings rather than on the underlying facts. [Citations.] Accordingly, affidavits [citation], the products of discovery [citation], documentary evidence not incorporated into the pleadings as exhibits [citation], testimonial evidence [citation], or other evidentiary materials [citation] may not be considered by the court in ruling on a section 2-615 motion. [Citation.] A basic premise of section 2-615 is that it accepts, for purposes of the motion, that all well-pled facts in the complaint are true.
If a motion challenging the pleadings may be determined solely from the face of the pleadings, a section 2-615 motion is appropriate. If matters not apparent on the face of the pleadings must be considered to decide the motion, that is, if the defect challenged lies in the underlying facts rather than in the pleadings, a motion for summary judgment under section 2-1005 is the proper tool. [Citation.]
Currently, the Code provides that [summary judgment] motions may be made 'with or without supporting affidavits' [citation]; that the party opposing the motion may file opposing affidavits at the time of the hearing or any earlier occasion [citation]; and that the motion is to be granted 'if the pleadings, depositions, and admissions on file, together with the affidavits, if any , show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law' [citation]. The fact that the summary judgment motion may be made 'with or without' supporting affidavits does not suggest that the motion may be used as a substitute for a section 2-615 motion to raise defects appearing on the face of the pleading. [Citation.] The Illinois Supreme Court noted that a section 2-615 motion to dismiss raises 'an inquiry into whether a pleading is sufficient to state a cause of action,' while a summary judgment motion 'almost necessarily assumes that a cause of action has been stated and proceeds to determine whether there are any material issues of fact to be tried.'" Barber-Colman, 236 Ill. App. 3d at 1068-70, 603 N.E.2d 1215.
Here, in a motion labeled as one for summary judgment, which contained no affidavits or other supporting evidence, the Board maintained:
"assuming, arguendo, that every allegation in [the complaint] is true, Plaintiff has failed to plead facts which establish willful and wanton misconduct. The [complaint] contains no allegation of specific facts which shows an intentional act or an act performed with reckless disregard for the safety of others. [Citation.] [Such] misconduct has not been established by [the complaint] because its factual allegations are conclusory in character. Plaintiff's blanket allegation of the Board's failure to repair or warn of a crack in the tennis courts are mere characterizations which are not sufficient to prove willful and wanton conduct."
Basically, the Board asserted in its motion that it was entitled to summary judgment because plaintiff's pleadings were "blanket-like," conclusory, and not specific. Such an assertion evinces a complete misapprehension of the distinction between the purpose of a 2-615 motion and a ...