By Colin H. Dunn
Because many of the immunities in the Tort Immunity Act contain “exceptions” for willful and wanton misconduct, a — probably the — key issue in cases against a local public entity or public employee is whether their conduct rises to that level. Recently, the 2nd District Appellate Court considered that issue in the context of a student who was injured at school. Leja v. Cmty. Unit Sch. Dist. 300. 2012 IL App (2d) 120156.
In Leja, the plaintiff was injured in her school’s gym when a volleyball net crank she was turning either “broke loose” or “snapped back” and struck her in the face. The school contended that it was immune under Section 3-108 of the Tort Immunity Act, which bars claims “based on the existence of a condition of any public property intended or permitted to be used for recreational purposes … unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.” 745 ILCS 10/3-106 (West 2008).
The plaintiff’s theory that the school’s conduct qualified as willful and wanton was as follows: 1) a warning label on the volleyball crank (which stated: “Caution — Do Not Overtighten — May Cause Injuries or Damage to Equipment”) put the school on notice that the crank posed a risk of injury and that instructing her to operate the crank bearing the warning label evinced an utter indifference to or conscious disregard for her safety; 2) the school knew or should have known that the volleyball net equipment was “unsafe, dangerous and-or defective” because it was “aware of prior difficulties” with the volleyball net equipment and the crank itself; 3) the school knew or should have known that the volleyball net equipment, which it had been using on nearly a daily basis for more than a year, was likely to cause injuries “due to its tendency to ‘snap back,’ its unsecured collar and-or overtightening of the equipment” and 4) despite this knowledge, the school instructed her to operate the unsafe, defective and-or dangerous equipment knowing such equipment would likely cause injury. The circuit court found these allegations did not rise to the level of willful and wanton conduct and granted the school’s Section 2–615 motion to dismiss.
On appeal, the 2nd District recognized that, generally, to be guilty of willful and wanton conduct, a defendant “‘must be conscious of his conduct and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury.'” Leja, 2012 IL App (2d) 120156, Paragraph 11; see also Choice v. YMCA of McHenry County, 2012 IL App (1st) 102877, Paragraph 72 “‘It is essential that the plaintiff allege and establish that when the defendant acted, or failed to act, he had knowledge, or should have had the knowledge under the circumstances, that his conduct posed a high probability of serious physical harm to others .'”
Other courts found willful and wanton conduct where a public entity knew of a dangerous condition yet took no action to correct the condition (e.g., Muellman v. Chicago Park District. 233 Ill.App.3d 1066, 1069 (1992)), where a public entity was aware of prior injuries caused by a dangerous condition but took no action to correct it (e.g., Carter v. New Trier East High School. 272 Ill.App.3d 551, 557–58 (1995)) and where a public entity intentionally removed a safety feature from recreational property despite the known danger of doing so (e.g., Benhart v. Rockford Park District. 218 Ill.App.3d 554, 559–60 (1991)).
The “central issue” in this case, the court said, was whether the plaintiff alleged sufficient facts that showed the school was conscious that directing her to operate the volleyball net crank would “naturally and probably result in injury” or “posed a high probability of serious physical harm.” There were no allegations that the school was aware of prior injuries caused by the crank, which would have put it on notice of such a risk. Instead, the plaintiff argued that the warning label on the crank, as well as the instruction manuals that accompanied the equipment, provided sufficient notice of that risk.
But the court rejected the plaintiff’s argument, finding that her allegations were insufficient to properly characterize the school’s conduct as willful and wanton. For instance, alleging that the defendant was aware of “prior difficulties” with the equipment — which the court found was “too generic to be of any assistance” — did not qualify because there was no allegation that “the ‘prior difficulties’ were ones that [the] defendant knew or should have known had resulted in injury or had a high probability of resulting in injury.”
Simply knowing that the crank had a tendency to “snap back” was also not good enough without “additional factual allegations showing that the defendant was aware or should have been aware of a serious danger posed.”
The court also found that the plaintiff’s allegations that the school knew or should have known that the equipment was likely to cause injury due to “its unsecured collar” or due to “overtightening of the equipment” were insufficient. The plaintiff failed to allege that either of those conditions caused her injury — or that the school knew or should have known the condition, danger and high risk of injury it posed.
The court also rejected the plaintiff’s warning-label argument, i.e., that for purposes of alleging willful and wanton conduct, a warning label is sufficient to put a defendant on notice that a product poses a high risk of injury. “[M]erely because the label warns of an underlying danger” did not mean that “[i]nstructing a student to use a product bearing such a label can evince an utter indifference to or a conscious disregard for the student’s safety.” In fact, “a warning label makes a product safer by informing the user of the proper method for using the product.”
Because the plaintiff was not able to adequately allege that the school had the requisite notice or knowledge of the danger that caused her injury, she could not avoid the immunity in Section 3-106.