Appeal from Circuit Court of Champaign County Honorable Michael Q. Jones,Judge Presiding.No.10L28
The opinion of the court was delivered by: Justice McCULLOUGH
JUSTICE McCULLOUGH delivered the judgment of the court, with opinion. Justices Steigmann and Pope concurred in the judgment and opinion.
¶ 1 Plaintiffs, Lucas C. and Leslie J. Thurman, filed an action against defendant, Champaign Park District, a municipal corporation, to recover damages for injuries Lucas sustained while playing tennis in defendant's facility. On defendant's motion, the trial court dismissed plaintiffs' action. Plaintiffs appeal, arguing (1) they properly stated a claim upon which relief could be granted and (2) they alleged facts creating a material issue of fact as to whether defendant's conduct was willful and wanton. We affirm.
¶ 2 The record shows defendant operated an indoor tennis facility and suspended an opaque tarp-curtain between its tennis court baseline and the wall of its facility. On February 3, 2010, plaintiffs filed a two-count complaint against defendant. They alleged, on February 7, 2009, Lucas was severely and permanently injured while playing tennis in defendant's facility"when he ran into a structural steel beam that was placed at an angle and hidden by a tarp" erected by defendant. Plaintiffs asserted defendant, "with utter indifference to or conscious disregard for" Lucas's safety, committed the following acts or omissions: (1) failed to properly identify for patrons the structural beams that were concealed by the hanging tarp, (2) failed to provide warning signs of the dangerous condition, (3) failed to provide a reasonably safe tennis court area for its patrons, (4) failed to use ordinary care for Lucas's safety, (5) failed to provide proper and adequate lighting, and (6) failed to adequately pad its structural beams. They maintained defendant's acts or omissions were the proximate cause of Lucas's injuries, resulting in damages to both plaintiffs.
¶ 3 On March 11, 2010, defendant filed a combined motion to dismiss plaintiffs' complaint pursuant to section 2--619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2--619.1 (West 2008)). It argued it could not be held liable for plaintiffs' claimed injuries because (1) section 3--106 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3--106 (West 2008)) made it immune from liability for mere negligence claims that were related to the condition of a recreational property and plaintiffs' allegations, in both form and substance, constituted "no more than mere negligence"; (2) plaintiffs' allegations were insufficient to establish willful and wanton misconduct as defined in section 1--210 of the Act (745 ILCS 10/1--210 (West 2008)); (3) the structural beams constituted open and obvious conditions for which defendant owed no duty to warn or protect against; and(4) the affidavit of James Spencer, defendant's director of operations, showed it exercised a conscious regard for the safety of its patrons.
¶ 4 On November 22, 2010, the trial court conducted a hearing in the matter.
Pursuant to section 2--615 of the Code (735 ILCS 5/2--615 (West 2008)), it granted defendant's motion to dismiss without prejudice, finding plaintiffs failed to sufficiently allege willful and wanton conduct by defendant. Pursuant to section 2--619 of the Code (735 ILCS 5/2--619 (West 2008)), the court allowed defendant's motion to dismiss with prejudice, finding plaintiffs could not allege facts based upon willful and wanton conduct by defendant that would entitle them to relief.
¶ 5 This appeal followed.
¶ 6 On appeal, plaintiffs argue the trial court erred by granting defendant's motion to dismiss. They contend they properly alleged willful and wanton conduct by defendant. Plaintiffs also argue a material question of fact existed as to whether defendant's conduct was willful and wanton.
¶ 7 Section 2--619.1 of the Code (735 ILCS 5/2--619.1 (West 2008)) permits a defendant to file a combined motion to dismiss pursuant to sections 2--615 and 2--619 of the Code (735 ILCS 5/2--615, 2--619 (West 2008)). A section 2--615(a) motion to dismiss "tests the legal sufficiency of the complaint," while a section 2--619(a) motion "admits the legal sufficiency of the complaint, but asserts affirmative matter outside the complaint that defeats the cause of action." Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361, 919 N.E.2d 926, 931-32 (2009). "Under either section of the Code, our standard of review is de novo." Kean, 235 Ill. 2d at 361, 919 N.E.2d at 932.
¶ 8 Plaintiffs first argue the trial court erred by granting defendant's motion to dismiss pursuant to section 2--615 because they alleged facts sufficient to state a cause of action against defendant. In the context of a section 2--615 motion to dismiss, "[t]he proper inquiry is whether the well-pleaded facts of the complaint, taken as true and construed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted." Loman v. Freeman, 229 Ill. 2d 104, 109, 890 N.E.2d 446, 451 (2008). "In ruling on a section 2--615 motion, only those facts apparent from the face of the pleadings, matters of which the court can take judicial notice, and judicial admissions in the record may be considered." K. Miller Construction Co., v. McGinnis, 238 Ill. 2d 284, 291, 938 N.E.2d 471, 477 (2010). "[A] cause of action should not be dismissed, pursuant to a section 2--615 motion, unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to relief." Tedrick v. Community Resource Center, Inc., 235 Ill. 2d 155, 161, 920 N.E.2d 220, 223 (2009). "However, the plaintiff must allege facts sufficient to bring a claim within a legally recognized cause of action." Tedrick, 235 Ill. 2d at 161, 920 N.E.2d at 223.
¶ 9 "To succeed in a claim for negligence, a plaintiff must establish the existence of a duty, a breach of the duty, and an injury to the plaintiff that was proximately caused by the breach." Vancura v. Katris, 238 Ill. 2d 352, 373, 939 N.E.2d 328, 342 (2010). Section 3--106 of the Act (745 ILCS 10/3--106 (West 2008)) immunizes local public entities and employees from liability for injuries occurring on public, recreational property except where liability is based on willful and wanton conduct by the entity or its employee. As neither party disputes application of section 3--106 in this case, plaintiffs were also required to allege and establish that Lucas's injuries were the result of defendant's willful and wanton conduct.
¶ 10 Under section 1--210 of the Act (745 ILCS 10/1--210 (West 2008)), "willful and wanton conduct" is defined as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregardfor the safety of others or their property." "When the plaintiff is alleging that the defendant engaged in willful and wanton conduct, such conduct must be shown through well-pled facts, and not by merely labeling the conduct willful and wanton." Winfrey v. Chicago Park District, 274Ill. App. 3d 939, 943, 654 N.E.2d 508, 512 (1995). Willful and wanton conduct is established where the public entity has been informed of a dangerous condition, knows that others have been injured because of that condition, or intentionally removes a safety feature or device from its recreational property. Floyd v. Rockford Park District, 355 Ill. App. 3d 695, 701, 823 N.E.2d 1004, 1010 (2005). Although generally a ...