Appeal from the Circuit Court of Du Page County, No. 11-L-1053 Honorable Patrick J. Leston, Judge, Presiding.
JUSTICE SPENCE delivered the judgment of the court, with opinion. Justices McLaren and Schostok concurred in the judgment and opinion.
'1 Defendants, the Burr Ridge Park District (Park District) and John Doe, and their counsel, contemnor Edward F. Dutton,  appeal the trial court's October 3, 2012, order (the discovery order) continuing their summary judgment motion in order for plaintiff, Steve Jiotis, to conduct discovery prior to responding to their motion. Defendants appealed this order under Illinois Supreme Court Rule 304(b)(5) (eff. Feb. 26, 2010), after the trial court granted their motion to be held in civil contempt for refusal to comply with the discovery order. Defendants appeal the contempt order and argue that plaintiff violated Illinois Supreme Court Rule 137 (eff. July 1, 2013). For the reasons stated herein, we determine that the trial court did not abuse its discretion in entering the discovery order. We do not address defendants' Rule 137 argument, because it is not properly before us. Further, we vacate the contempt order and remand for further proceedings.
¶ 2 I. BACKGROUND
¶ 3 Defendants appeal from a civil contempt order entered at their behest. The facts of this case are relatively simple, owing to the fact that the dispute before us is over obedience versus abeyance of the discovery order before consideration of defendants' motion for summary judgment. The limited facts and procedural history are as follows.
¶ 4 On September 13, 2011, plaintiff filed his initial complaint against the Park District and John Doe, seeking compensation for an injury sustained at a hayride sponsored by the Park District at its annual Harvest Fest in September 2010. The complaint alleged that the injury occurred as the result of negligence, that is, for patrons to enter and exit the hay wagon, the Park District provided an unmaintained and unsafe step stool, which broke when plaintiff exited the wagon, proximately causing his injury. The complaint alleged that John Doe, as an agent of the Park District, operated the wagon and instructed plaintiff to use the step stool to exit the wagon. The Park District admits in its brief that John Doe was the wagon driver and directed passengers to use the step stool to enter and exit the wagon, although it has yet to provide his identity.
¶ 5 On October 7, 2011, the Park District moved to dismiss the complaint. The Park District argued in part that it was immune from liability for allegations of mere negligence under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-106 (West 2010)). On January 5, 2012, plaintiff then filed his first amended complaint, in which he pled two counts: one alleging negligence and the other alleging willful and wanton misconduct. The first amended complaint read similarly to the original complaint. In it, plaintiff alleged that the step stool that the Park District instructed patrons to use to enter and exit the wagon was "rusted and physically damaged in areas visible to JOHN DOE, and more particularly structurally unsound because of the visible rust and other physical damage." Plaintiff continued that the step stool collapsed at the left front joint of the first step, sending him plummeting to the ground and thus causing his injury. On February 23, 2012, defendants filed a combined motion to dismiss the first amended complaint under sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2010)).
¶ 6 On July 11, 2012, the trial court entered an order granting the motion in part and denying it in part. The trial court dismissed plaintiff's negligence count because it found that the Tort Immunity Act precluded a negligence action. Regarding the count alleging willful and wanton misconduct, the court found, "the willful and wanton [count] is sufficiently pled to stand, although we could revisit it in a motion for summary judgment."
¶ 7 On July 30, 2012, defendants filed a motion for summary judgment on the remaining willful-and-wanton count. Defendants argued that: (1) because the Park District had not experienced prior problems with the step stool, plaintiff could not establish actual or constructive notice of a defect; (2) a spontaneous collapse of the step stool, without any evidence of prior complaints or similar occurrences, could not constitute willful and wanton misconduct, as a matter of law; and (3) the Park District had absolute immunity from liability under sections 2-109 and 2-201 of the Tort Immunity Act (745 ILCS 10/2-109, 2-201 (West 2010)) because it exercised discretion in its use of the step stool.
¶ 8 Defendants attached the affidavit of James Pacanowski, executive director of the Park District, to the motion for summary judgment. In his affidavit, Pacanowski stated as follows. He had been employed with the Park District for 16 years, and he was familiar with Harvest Fest and the step stool used for patrons to step on and off the hayride wagons. He admitted that the Park District owned the step and operated the Harvest Fest event and that Park District volunteers and employees operated activities and attractions at the event, including the hayride. They assisted patrons as needed in entering and exiting the wagons. To the best of his knowledge, the step stool was operating properly and exhibited no signs that any of the legs would suddenly bend or collapse at any time prior to plaintiff's accident.
¶ 9 Pacanowski was present at the Harvest Fest at the time of plaintiff's accident. He personally helped set up the wagon entry and exit areas and he handled and observed the step stool prior to plaintiff's accident. Prior to plaintiff's accident, which occurred at approximately 3:35 p.m., Pacanowski had observed several groups of patrons-estimated at several dozen patrons total-use the step stool without incident. He claimed that the same step stool had been used for the 2009 Harvest Fest without known incident, problem, or complaint of any kind. The step stool was provided as a convenience to Harvest Fest patrons, who total several thousand per year. Plaintiff's accident was the only known or claimed injury by any patron concerning the use of the step stool, according to Pacanowski. After plaintiff's accident, the Park District immediately stopped using the step stool for any purpose.
¶ 10 Also included with Pacanowski's affidavit were two pictures: one of the flyer for the 2010 Harvest Fest (advertising, among other attractions, the hayride), and one of the step stool after plaintiff's accident, which clearly shows the front left leg bent inward at the joint where the leg meets the first of two steps. Pacanowski's was the only affidavit attached to defendants' motion for summary judgment; John Doe did not provide one.
¶ 11 On September 4, 2012, plaintiff filed a motion for discovery pursuant to Illinois Supreme Court Rule 191(b) (eff. July 1, 2002). Plaintiff requested that the trial court strike defendants' motion for summary judgment or, alternatively, allow for sufficient discovery to allow plaintiff to respond to the motion. Plaintiff argued, however, that he should not be required to comply with Rule 191(b) merely because defendants suggested that plaintiff could not, at the current stage of the litigation, prove his case; rather, the motion for summary judgment was premature. Plaintiff further argued that defendants had not answered the written discovery he had served, nor had defendants identified John Doe, who was an eyewitness to plaintiff's accident. Any knowledge of John Doe, or other eyewitnesses, was in defendants' exclusive purview. Plaintiff therefore argued that the trial court must require defendants to answer his interrogatories so plaintiff could gain information regarding knowledge of the condition of the step stool, notice of any defects, maintenance schedules, repair procedures, names of other witnesses to the accident, and observations made prior to the accident. Plaintiff also argued that the trial court should require defendants to produce documents about the step stool and the accident before addressing the motion for summary judgment. Plaintiff argued that, without access to knowledge and information within the sole province of defendants, he could not prove his case and that a ruling on summary judgment before discovery could properly transpire would prematurely foreclose him from doing so.
¶ 12 Defendants objected to plaintiff's discovery motion. On September 19, 2012, defendants filed their response in opposition to the motion, arguing that under the Code a "defendant may, at any time, move" for summary judgment. 735 ILCS 5/2-1005(b) (West 2010). Defendants argued that they did not have an obligation to wait for full discovery-or even partial discovery-before filing their motion for summary judgment. Furthermore, defendants characterized their summary judgment motion as a "traditional" motion, supported by affidavit, as opposed to a Celotex-type motion, which relies on the weakness of the opponent's case instead of the affirmative strength of the movant's. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Defendants contended that plaintiff therefore needed to either respond to the motion for summary judgment or comply with the affidavit requirement of Rule 191(b), specifying the persons whose affidavits he needed in order to properly respond to the motion and the information he expected such persons to provide. Yet, defendants noted, plaintiff did neither. Moreover, defendants argued that it would be unfair and prejudicial to require them to participate in full-fledged discovery when they had a dispositive motion pending. The dispositive motion would lose any value to defendants as a vehicle to avoid litigation expenses if full discovery had to occur before the motion was adjudicated.
¶ 13 Plaintiff replied that he was in compliance with Rule 191(b) and that, regardless, the trial court had authority to stay disposition of the motion for summary judgment to allow for discovery to proceed.
¶ 14 On October 3, 2012, the trial court held a hearing on plaintiff's motion for discovery. The trial court ruled that the case would be continued to allow for discovery for a reasonable period of time and that defendants should answer any outstanding discovery requests within 30 days. Plaintiff would also be allowed to test the step stool and depose John Doe and Pacanowski. The court continued the case until January 9, 2013, for the setting of a briefing schedule on the summary judgment motion. Dutton told the court that he would be filing a motion that defendants be held in contempt, saying "I am not going to produce anybody. I would produce the affiant but I will not produce anyone else." The court entered an order that same day, giving defendants until November 2, 2012, to answer outstanding discovery requests, and until January 9, 2013, to produce Pacanowski and John Doe for depositions.
¶ 15 Dutton made good on his promise. On October 16, 2012, defendants filed their motion to be held in contempt, pursuant to Norskog v. Pfiel, 197 Ill.2d 60 (2001). Dutton requested that the trial court hold them "in 'friendly' civil contempt, in order to enable the Park District to file an immediate interlocutory appeal from this Court's 10/3/12 order."
¶ 16 On November 8, 2012, the trial court granted defendants' contempt motion. The trial court's order held defendant Park District and its counsel in civil contempt "for the purpose of appealing from the court's discovery order of 10/3/12, " such an appeal being proper pursuant to Rule 304(b)(5). The trial court imposed a fine of $100 per ...