Looking at How ‘willful and wanton’ Gets Defined

Many times in cases involving governmental defendants, the plaintiff must prove that those defendants engaged in willful and wanton conduct to prevail.  Before 1986, various courts had defined what conduct qualified as “willful and wanton.”  See e.g., Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 583 (1946) (“[a] willful and wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care”); Meyers v. Krajefska, 8 Ill.2d 322, 328-29 (1956) (“liability can be founded…where the act was done with actual intention or with a conscious disregard or indifference for the consequences when the known safety of other persons was involved.  The knowledge concerning other persons can be actual or constructive…It is generally considered in that area of fault between ordinary negligence and actual malice”).  This “common law” definition was used in cases involving governmental defendants.  See e.g., La Pointe v. Boddy, 99 Ill.App.3d 111, 114 (1981). 

In 1986, the General Assembly amended the Local Governmental and Governmental Employees Tort Immunity Act by including the following definition of willful and wanton conduct in section 1-210:  “’willful and wanton conduct’ as used in this Act means 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 disregard for the safety of others or their property.”  See Murray v. Chicago Youth Center, 224 Ill.2d 213, 235 (2007), citing Public Act 84-1431, article I, section 2, effective November 25, 1986.  That amendment did not impose a “heightened willful and wanton standard” in cases involving governmental defendants.  See Murray, 224 Ill.2d at 241-42.  Instead, the General Assembly simply codified the common law definition of willful and wanton conduct, which had a “settled judicial meaning” at the time of the amendment, into section 1-210 of the act.  Id.   

In 1998, the General Assembly amended section 1-210 by adding the following sentence to the definition of willful and wanton:  “This definition shall apply in any case where a ‘willful and wanton’ exception is incorporated into any immunity under this Act.”  745 ILCS 10/1-210 (West 1998).  Though the defendants in Murray had argued that this amendment showed “the General Assembly’s intent to replace the common law definition of willful and wanton conduct with a heightened definition more akin to intentional misconduct,” the Illinois Supreme Court punted that question because that amendment was not in effect at the time of the occurrence in that case.  Id (“[W]e express no opinion on the effect, if any, of the 1998 amendment on willful and wanton liability governed by the Tort Immunity Act”).  Recently, in Tagliere v. Western Springs Park District, No. 1-09-2633, slip op. (1st Dist. Feb. 25, 2011), the First District Appellate Court attempted to tackle that issue.

In Tagliere, the plaintiff’s daughter was injured by a defective seesaw located at the defendant’s park.  Because the park was intended for recreational uses, the defendant was immune under section 3-106 of the Act unless the injury was caused by its willful and wanton conduct.  So the plaintiff alleged that the failure of the defendant to discover the defect (which was obvious according to his expert) during its employee’s regular inspections constituted willful and wanton conduct.  The trial court disagreed and granted the defendant’s motion for summary judgment.

Citing the common law definition of willful and wanton conduct found in several pre-1998 cases, the plaintiff argued on appeal that the failure of the defendant to discover and correct the defect despite those inspections constituted willful and wanton conduct as a matter of law.  Tagliere, slip op., at 5-7.  The defendant argued that those cases (and the common law definition recited in them) were inapplicable because the 1998 amendment was intended to exclude the common law definition of willful and wanton in cases involving a willful and wanton exception in the Act. 

Though it agreed that the 1998 amendment “did not change the statutory definition of willful and wanton conduct,” the appellate court sided with the defendant, finding that “the legislature, in the amendment, clearly indicated that it requires the use of the statutory definition of willful and wanton to evaluate the conduct of public entities in Tort Immunity cases to the exclusion of common law definitions found in the cases cited by [the plaintiff].”  Tagliere, slip op., at 7.  To support its holding, the court did not point to any ambiguity in section 1-210, but instead noted the following statement made by then-Rep. (now Cook County sheriff and oft-named governmental defendant) Thomas J. Dart during a floor hearing on the amendment:   

Krause: Is it the intent of this Bill to ensure that the definition of willful and wanton conduct, provided in the Tort Immunity Act, be applied in all cases where a willful and wanton exception is incorporated into the Act?

Dart: Yes. A sentence has been added to the definition of willful and wanton conduct in the Act, clarifying that the statutory definition be used for cases affected by the Act and that other definitions of willful and wanton conduct that may have or will be provided through common laws, shall not be used in such cases. 

Tagliere, slip op. at 7, quoting 90th Ill. Gen. Assem., House Proceedings, May 20, 1998, at 17 (statements of Reps. Krause and Dart).  The court then found that it could not say that the defendant’s failure to discover the defect, despite the repeated inspections, rose to the level of willful and wanton conduct as that term was defined in the Act.  Tagliere, slip op. at 7 (noting that the defendant’s “failure to discover the defect may be arguably negligent, however, the conduct of the [defendant] was not willful and wanton, as defined by section 1-210 of the Tort Immunity Act”).   

The first problem with the court’s decision is that it failed to explain why it was necessary to consider the legislative history of the Act in the first place.  Both the Supreme Court and the 1st District have repeatedly stated that courts may only look to legislative history where the statute in question is ambiguous.  See e.g., Cinkus v. Village of Stickney Municipal Officers Electoral Bd., 228 Ill.2d 200, 217 (2008) (“When the statutory language is clear, no resort is necessary to other tools of construction”); Kunkel v. Walton, 179 Ill.2d 519, 536 (1997) (finding that “because the language of the statute is plain and unambiguous, we have no occasion to consider its legislative history”); Bailey v. Illinois Liquor Control Com’n, 405 Ill.App.3d 550, 559 (2010) (“legislative history is considered only if the statute is found to be ambiguous”); People v. Howard, 374 Ill.App.3d 705, 710 (2007) (“Only where we must resolve some ambiguity in the statutory language, may we consider extrinsic aids such as legislative history and transcripts of legislative debates”). 

And the Tagliere court did not find, nor did the defendant argue, that any part of section 1-210 was ambiguous.  In fact, it specifically found that the 1998 amendment “did not change the statutory definition of willful and wanton” at all.  Tagliere, slip op. at 7; see also Karalyos v. Board of Education of Lake Forest Community High School District 115, 2011 WL 856834, at *4, n.2 (N.D.Ill. March 9, 2011) (noting that “the 1998 amendments to Section 1-210 left the definition of ‘willful and wanton conduct’ unchanged,” rejecting the defendants’ argument that those amendments resulted in a new definition of willful and wanton conduct under the act and finding that the “essential reasoning of Murray, namely, that the language of 1-210 merely incorporated the common law definitions of ‘willful and wanton’ remains persuasive”).

The amended version of section 1-210 does not mention anything about the common law definition of willful and wanton.  Nor does it, by its plain terms, seek to impose any heightened willful and wanton standard for cases involving governmental defendants.  So it’s unclear why, in the absence of any ambiguity, the court felt it was necessary to look beyond the plain language of the statute.

The second problem is that, even if it was appropriate to consider the legislative history of the 1998 amendment, the question still remains: What does “willful and wanton” mean under the Act?  There is no question that the General Assembly codified the common law definition of willful and wanton in 1986.  If the 1998 amendment to section 1-210 sought to exclude that definition, then what did it replace it with?  It’s a little like proclaiming that “hereafter red doesn’t mean red.”  In trying to decide after that proclamation if something is red, the only way to do that is to apply either a previously held definition of that word or a newly imposed definition.  But the language inserted by the 1998 amendment did not impose any new definition – it only stated that the statutory definition in section 1-210 (which was merely the codified common law definition) would apply “in any case where a ‘willful and wanton’ exception is incorporated into any immunity under this act.” 

The question of what effect, if any, that 1998 amendment had on the definition of willful and wanton in section 1-210 that was left open in by the Supreme Court in Murray still remains so.  

Copyright 2011 Law Bulletin Publishing Co. Reprinted with permission