NO. 5-00-0121

____________________________________________________________________________

____________________________________________________________________________

JUSTICE GOLDENHERSH delivered the opinion of the court:

Carrie S. Manuel (plaintiff) filed a four-count complaint in the circuit court ofLawrence County. Red Hill Community Unit School District #10 was named as a defendantin counts I and III. Red Hill Community Unit School District #10 Board of Education(defendant) was named in counts II and IV. Defendant moved to dismiss. Counts I and IIIwere dismissed for the failure to name a proper party. See 105 ILCS 5/10-2 (West 1998). The court denied the motion in regard to counts II and IV. Defendant filed a motion toreconsider. On reconsideration, the court entered an order granting defendant's motion anddismissed counts II and IV. Plaintiff appeals the order dismissing counts II and IV. Theappeal raises several issues. We reverse and remand.

In her complaint, plaintiff alleged that on the evening of January 5, 1996, she wasasked by Hank Ginder, a teacher employed by defendant, to serve soft drinks and work ina concession stand during a basketball game at Red Hill High School. Plaintiff, a studentof the district at the time, was at least 18 years of age, suffered from cerebral palsy, andwalked with a limp. Plaintiff alleged that while she was working at the concession stand,Ginder asked her to see if other employees of defendant who were working at the basketballgame, such as coaches, wanted soft drinks.

Plaintiff alleged that a heavy, wet snow had fallen and that the stairs and tile flooringof Red Hill High School were "soppy wet." Plaintiff alleged that in order to complete thetask given by Ginder she had to "walk up a set of stairs, over a landing, and then downanother set of stairs to the auditorium." On the return trip, plaintiff slipped and fell downthe stairs, causing personal injury. Plaintiff made the same allegations in counts II and IV,alleging that the conduct was negligent in count II and willful and wanton in count IV.

Defendant filed a combined motion to dismiss asking for a dismissal under section2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 1998)) or, in thealternative, under section 2-615 of the Code (735 ILCS 5/2-615 (West 1998)). Defendantmade several arguments in the motion, including claiming that it was immune fromnegligence claims under several sections of the Local Governmental and GovernmentalEmployees Tort Immunity Act (Act) (745 ILCS 10/1-101 et seq. (West 1998)). Plaintifffiled a reply arguing that plaintiff's claim should be excepted from the Act by the "specialduty doctrine" and that she pled willful and wanton conduct. Both parties filed subsequentpleadings on the motion.

After hearing arguments, the court entered an order denying the motion in regard tocounts II and IV. In its order, the court pointed out that plaintiff had alleged that she washired by defendant to work at a concession stand, that she was physically handicapped, andthat she was ordered to use wet stairs. The court found that plaintiff had stated a cause ofaction in light of the Act.

Defendant filed a motion to reconsider. Due to the retirement of the judge whoissued the original order, the motion to reconsider was heard by a different judge. The courtgranted the motion to reconsider and, in a written opinion, dismissed counts II and IV ofplaintiff's complaint.

With regard to count II, the court ruled that the special-duty doctrine did not apply,and the court held that defendant was afforded immunity from claims of negligence pursuantto section 3-106 of the Act (745 ILCS 10/3-106 (West 1998)). With respect to count IV, thecourt ruled that plaintiff did not sufficiently allege facts which would support a finding ofwillful and wanton conduct, and the court dismissed count IV pursuant to section 2-615 ofthe Code.

Although plaintiff's appeal focuses on the issue of whether the Act applies to actionsby employees, the resolution of this matter involves several other issues. The viability ofplaintiff's complaint depends on whether section 3-106 of the Act applies, whether plaintiffpled willful and wanton conduct, and whether the natural accumulation rule applies.

Defendant contends that it is immune from negligence pursuant to section 3-106 ofthe Act. Section 3-106 reads:

"Neither a local public entity nor a public employee is liable for an injurywhere the liability is based on the existence of a condition of any public propertyintended or permitted to be used for recreational purposes, including but not limitedto parks, playgrounds, open areas, buildings[,] or other enclosed recreationalfacilities, unless such local entity or public employee is guilty of willful and wantonconduct proximately causing such injury." 745 ILCS 10/3-106 (West 1998).

Plaintiff contends that the site of the alleged incident was not property intended to beused for recreational purposes and that, therefore, the Act does not apply. In Capps v.Belleville School District No. 201, 313 Ill. App. 3d 710, 714, 730 N.E.2d 81, 85 (2000), thiscourt stated that the plain language of section 3-106 contemplates immunity for boundedpublic property used for recreational purposes. In Capps, we found that a ramp leading toa gymnasium was outside the recreational public property addressed by the Act. Capps, 313Ill. App. 3d at 714, 730 N.E.2d at 85. In this case, the question of whether the location ofplaintiff's alleged fall was within the bounded public property protected by the Act wasnever addressed at the trial court level, and the record is unclear regarding the issue. Thisis understandable, as our opinion in Capps was published after the trial court's order andafter plaintiff filed her notice of appeal. We decline to further address whether the propertyis covered, as we find that plaintiff has alleged conduct on the part of defendant that wouldnot be provided immunity by the Act. Given the development of law on this issue, and thefact that we remand this cause on other grounds, the trial court should reconsider this issue.

In her brief, plaintiff focuses on whether the Act applies to injuries to employees. Upon a review of plaintiff's appeal, we decline to address whether the Act is inapplicablein all suits by employees, because we find that under at least one set of allegations inplaintiff's complaint, defendant's potential liability is not based on the condition of thepremises. Defendant's alleged liability is, therefore, outside the immunity provided bysection 3-106.

Whether defendant is provided immunity by section 3-106 is a question of statutoryconstruction, and as such, the standard of review is de novo. In re Tax Deed, 311 Ill. App.3d 440, 443, 723 N.E.2d 1186, 1189 (2000). The goal of statutory construction is toascertain and give effect to the intent of the legislature. Zekman v. Direct AmericanMarketers, Inc., 182 Ill. 2d 359, 368, 695 N.E.2d 853, 858 (1998). When faced with aquestion of statutory construction, the courts should first look to the language of the statuteto determine the intent of the drafters. Davis v. Toshiba Machine Co., America, 186 Ill. 2d181, 184, 710 N.E.2d 399, 401 (1999). The plain and ordinary language of the statute is thebest indication of the legislative intent. King v. Industrial Comm'n, 189 Ill. 2d 167, 171, 724N.E.2d 896, 898 (2000). Additionally, the interpretation given to the statute shouldcorrespond with the reason for the law, the evil to be remedied, and the object to beobtained by the statute. Stern v. Norwest Mortgage, Inc., 179 Ill. 2d 160, 164, 688 N.E.2d99, 102 (1997).

The Act is an attempt to create uniform rules of immunity as exceptions to the generalrule of liability. Aikens v. Morris, 145 Ill. 2d 273, 278, 583 N.E.2d 487, 490 (1991).Because the Act is in derogation of common law, it should be strictly construed to limitimmunity. Aikens v. Morris, 145 Ill. 2d 273, 278, 583 N.E.2d 487, 490 (1991); Snyder v.Curran Township, 167 Ill. 2d 466, 477, 657 N.E.2d 988, 994 (1995).

The plain and ordinary meaning of the statute is that the theory of recovery mustderive from the public entity's control of the property. The immunity is directed at thelocation of the incident. Defendant is correct in asserting that plaintiff's being an employeewould not change the nature of property so that it would no longer be " 'property intendedor permitted to be used for recreational purposes.' " Hanover Insurance Co. v. Board ofEducation, 240 Ill. App. 3d 173, 176, 608 N.E.2d 183, 185 (1992) (quoting Ill. Rev. Stat.1989, ch. 85, par. 3-106). Illinois courts have held that the status of property for purposesof 3-106 is determined by the nature of the property and its past use. Bubb v. SpringfieldSchool District 186, 167 Ill. 2d 372, 379, 657 N.E.2d 887, 891 (1995). The essentialquestion is whether "liability is based on" (745 ILCS 10/3-106 (West 1998)) the conditionof property if a plaintiff claims that a defendant's negligent use of order and control over herled to injuries, even though the injury would not have occurred but for the condition of theproperty.

Section 3-106 provides immunity only when "liability is based on" the condition ofthe property. 745 ILCS 10/3-106 (West 1998). The plain and ordinary meaning of thephrase "liability is based on" is that the entity's duty must be derived from its control of theproperty, e.g., maintenance or construction of the property. The statute could have beenwritten in a manner such that immunity would attach when the condition was the "but-for"causation of the injury (e.g., "injury caused by") or could have provided a broader immunityby applying to any action "related to" the condition of property. Section 3-106 specifies thatthe "liability" must be "based on" the existence of a condition. The plain meaning of thisphrase is that immunity is only granted if the theory of recovery which creates defendant'sobligation is one of premises liability. Accepting the plain meaning of the language, thetheory of liability upon which plaintiff bases her case determines whether section 3-106applies regardless of whether the condition of the property caused her injury. Prior courtdecisions and the language of the Act as a whole support this plain language interpretation.

Illinois courts have ruled that section 3-106 provides immunity only where theliability is based on the existence of a condition of the property. McCuen v. Peoria ParkDistrict, 163 Ill. 2d 125, 129, 643 N.E.2d 778, 780 (1994) (overruling Burdinie v. Villageof Glendale Heights, 139 Ill. 2d 501, 565 N.E.2d 654 (1990)); Barnett v. Zion Park District,267 Ill. App. 3d 283, 287, 642 N.E.2d 492, 494 (1994), aff'd, 171 Ill. 2d 378, 665 N.E.2d808 (1996). In McCuen, the court found that a public entity was not liable for injuriesallegedly caused by the negligent handling of a mule team pulling a hayrack on recreationalproperty because the liability was not based on the existence of a condition on the property. The court stated:

"The handling of the mule team does not relate to the condition of the hayrack itself. If otherwise safe property is misused so that it is no longer safe, but the property itselfremains unchanged, any danger presented by the property is due to the misuse of theproperty and not to the condition of the property." McCuen, 163 Ill. 2d at 129, 643N.E.2d at 780.

Although the decision in McCuen established that the use of property, as opposed to thecondition of property, is not provided immunity by section 3-106, the language used by thecourt is not decisive for this case because plaintiff alleges that the property was nototherwise safe.

Nonetheless, in overruling Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501,565 N.E.2d 654 (1990), the McCuen court indicated that instruction to use property in anunsafe manner is not provided immunity by section 3-106. In Burdinie, the plaintiffcomplained of injuries from following instructions of a swimming instructor to jump intothe shallow end of the pool. The plaintiff made no allegations of improper maintenance, butthe court applied section 3-106 and found defendant immune from charges of negligence. The McCuen court explicitly overruled Burdinie, stating, "The swimming instructor'snegligence was unrelated to the condition of the swimming pool." McCuen, 163 Ill. 2d at130, 643 N.E.2d at 781.

The failure to act after a plaintiff has been injured has been found to be outsidesection 3-106. In Barnett v. Zion Park District, 267 Ill. App. 3d 283, 287, 642 N.E.2d 492,494 (1994) aff'd, 171 Ill. 2d 378, 665 N.E.2d 808 (1996), a 10-year-old boy drowned afterallegedly slipping and falling off a diving board into a pool. At least two patronsapproached lifeguards regarding the accident, and the lifeguards failed to respond. TheSecond District granted immunity under other sections of the Act but found that section 3-106 did not apply because the liability alleged by the plaintiff was based on the conduct ofthe lifeguards and not on any physical defects of the pool.

In McCuen and Barnett, Illinois courts made clear that section 3-106 does not apply when the defendant's duty does not derive from the defendant's control of the property. Thefacts of those cases did not force the courts to address whether section 3-106 would stillapply if the injury would not have occurred but for the condition of the property.Nonetheless, the cases establish that the theory of liability which explains defendant's duty,and not the instrument that caused plaintiff harm, determines whether section 3-106 applies.

Interpreting the language of section 3-106 to provide immunity only when thedefendant's duty derives from its control of the premises is consistent with the language ofthe Act as a whole. The phrase "liability *** based on" is also used in section 2-101 of theAct, which provides, "Nothing in this Act affects the liability, if any, *** based on ***contract [and other specified legislation]." 745 ILCS 10/2-101 (West 1998). The phrase hasbeen interpreted to refer to the source of defendant's obligation. For example, whendiscussing the application of section 2-101 to common carriers in Slaughter v. Rock IslandCounty Metropolitan Mass Transit District, 275 Ill. App. 3d 873, 656 N.E.2d 1118 (1995),the court stated, "[T]he use of the term 'liability' here simply preserves the standard of careimposed upon common carriers as to its passengers." 275 Ill. App. 3d at 875, 656 N.E.2dat 1120; see Cooper v. Bi-State Development Agency, 158 Ill. App. 3d 19, 25, 510 N.E.2d1288, 1292 (1987); see also DiMarco v. City of Chicago, 278 Ill. App. 3d 318, 324, 662N.E.2d 525, 529, 530 (1996) (liability based on contract means the theory of contract law,not merely the fact of a contract alleged in the plaintiff's complaint). This indicates thelegislature was referring to the source of a defendant's obligation when it used the samelanguage in section 3-106. See McMahan v. Industrial Comm'n, 183 Ill. 2d 499, 513, 702N.E.2d 545, 552 (1998) (the same words appearing in different parts of the same statuteshould be given the same meaning).

Interpreting the phrase "liability is based on" in section 3-106 as referring to thesource of defendant's obligation is consistent with the language of the Act as a whole. Themajority of the provisions in the Act use the phrase "not liable for an injury caused by" toindicate the scope of immunity. See, e.g., 745 ILCS 10/2-103, 2-104, 2-105, 2-106, 2-107,2-108, 3-103, 3-104, 3-105, 3-107 (West 1998). Such language is clearly directed at thecausation of injury. Section 2-101 is the only other section of the Act to define immunityin the terms of the phrase "liability *** based on." The use of the phrase "liability *** basedon," as opposed to the language of causation prevalent elsewhere in the Act, indicates thatthe source of defendant's obligation, and not the cause of plaintiff's injury, defines what iscovered by section 3-106. See In re K.C., 186 Ill. 2d 542, 549, 550, 714 N.E.2d 491, 495(1999) (the use of certain language in one context and other language in another contextindicates that the legislature intends different results).

Defendant is not afforded protection under section 3-106 to the extent plaintiffalleges a duty on the part of defendant that does not derive from defendant's control of theproperty. In this case, plaintiff alleges a duty on the part of defendant that derives fromdefendant's order and control over her. In the initial order that denied the motion to dismiss,the trial court accurately described plaintiff's complaint:

"The plaintiff alleges that she was hired by or on behalf of the defendant board ofeducation to work at a concession stand, that she is physically handicapped bycerebral palsy[,] and that she was ordered or required to use stairs wet from theweather outside."

Defendant's use of order and control over plaintiff provides the basis of liability, or sourceof its obligation, for these allegations. Like the instruction to jump into the shallow end ofthe pool in Burdinie, plaintiff here allegedly was ordered to perform a task. Like thelifeguards in Barnett, defendant's alleged relationship to plaintiff, and not its control of theproperty, is the source of defendant's duty.

Plaintiff argued to the trial court that her complaint should stand because of thespecial-duty doctrine. We wish to make clear that our decision is not an application of thatdoctrine. The special-duty doctrine, as an exception to the common law public-duty rule,imposes liability for negligence when a municipality is under a special duty to an individual.Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 345, 692 N.E.2d 1177,1183 (1998). Our supreme court has found that allowing a special-duty exception tolegislatively enacted immunity would violate the Illinois Constitution. Harinek, 181 Ill. 2dat 347, 692 N.E.2d at 1183. Our ruling here is not based on the special-duty doctrine, buton the plain language of the statute.

Even if section 3-106 applied to plaintiff's complaint, the complaint would survive because plaintiff pled willful and wanton conduct. In ruling on the motion forreconsideration, the trial court found that plaintiff failed to plead willful and wantonconduct, and the court dismissed count IV pursuant to section 2-615. Motions to dismisspursuant to section 2-615 admit all well-pleaded facts, together with all reasonableinferences that can be gleaned from those facts. Lawson v. City of Chicago, 278 Ill. App.3d 628, 634, 662 N.E.2d 1377, 1382 (1996). They do not admit conclusions of law orconclusions of fact unsupported by allegations of specific fact. American Health CareProviders, Inc. v. County of Cook, 265 Ill. App. 3d 919, 922, 638 N.E.2d 772, 775 (1994). Appellate review of a section 2-615 dismissal is de novo. Estate of Pessin v. State of IllinoisDepartment of Transportation, 302 Ill. App. 3d 417, 420, 705 N.E.2d 935, 937 (1999). Indeciding a motion to dismiss, the trial court should view the allegations in the complaint ina light most favorable to the plaintiff. Doe v. Calumet City, 161 Ill. 2d 374, 385, 641 N.E.2d498, 506 (1994).

The definition of willful and wanton conduct is often elusive, as the label is forconduct that is a hybrid between conduct considered negligent and conduct that isintentionally tortuous. Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 275, 641 N.E.2d 402,406 (1994). Policy considerations of punishment and retribution require an interpretationof willful and wanton approaching maliciousness when a court determines punitivedamages, but allow for an interpretation approaching negligence when a court determinescompensatory damages. Ziarko, 161 Ill. 2d at 276, 641 N.E.2d at 407. The Act providesthe following definition:

" 'Willful and wanton conduct' as used in this Act means a course of action whichshows 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 theirproperty." 745 ILCS 10/1-210 (West 1998).

The complaint is, therefore, sufficient if the allegations, when viewed in a light mostfavorable to the plaintiff, set forth facts from which a rational trier of fact could find that thedefendant's conduct showed an utter indifference or conscious disregard for the plaintiff'ssafety. See Doe v. Calumet City, 161 Ill. 2d 374, 390, 641 N.E.2d 498, 506 (1994); see alsoO'Brien v. Township High School District 214, 83 Ill. 2d 462, 468, 415 N.E.2d 1015, 1018(1980) (same factual averments can support separate counts for negligence and willful andwanton conduct). Plaintiff alleges the use of order and control over plaintiff that displayedutter indifference to plaintiff considering defendant's knowledge of the condition of thepremises and plaintiff's physical impediment.

Defendant contends that plaintiff made mere conclusory remarks regardingdefendant's knowledge of the dangerous condition of the premises. In several cases fromthe First District cited by defendant, the plaintiffs alleged that the defendant either "knewor should have known" of a dangerous condition-an allegation more speculative than theassertion that the defendant "knew" of a specific condition. Washington v. Chicago Boardof Education, 204 Ill. App. 3d 1091, 1093, 562 N.E.2d 541, 542 (1990) (the plaintiff allegedthat the defendant "knew or should have known" of "dangerous, conspicuous[,] and icyconditions"); Ozuk v. River Grove Board of Education, 281 Ill. App. 3d 239, 245, 666N.E.2d 687, 691 (1996) (the plaintiff alleged that the defendant "knew or should haveknown of the dangerous and hazardous conditions"). Furthermore, Dunbar v. Latting,another case cited by defendant, is distinguished because in Dunbar, the court was facedwith a motion for summary judgment. Dunbar v. Latting, 250 Ill. App. 3d 786, 792, 621N.E.2d 232, 238 (1993). In Dunbar, the court was not evaluating the sufficiency of theplaintiff's allegation but, in considering a summary judgment, was pointing out a lack ofevidence of the defendant's knowledge. Dunbar, 250 Ill. App. 3d at 792, 621 N.E.2d at 238.

Language in support of defendant's position is found in Winfrey v. Chicago ParkDistrict, 274 Ill. App. 3d 939, 654 N.E.2d 508 (1995). In Winfrey, the First District foundthat the plaintiff had not alleged willful and wanton conduct despite alleging that thedefendant had knowledge of a hole in a fence. The court stated: "[Plaintiff] asserts theconclusion that defendant knew of the hole in the fence, but [plaintiff] states no facts tosupport this conclusion. *** [A] bare allegation of knowledge is insufficient and must besupported by facts such as allegations that the defendant removed safety equipment or hadprevious knowledge of accidents or had been put on notice of the danger." Winfrey v.Chicago Park District, 274 Ill. App. 3d at 949, 654 N.E.2d at 516.

Winfrey may be read to stand for the principle that mere knowledge of a physicalcondition, without notice of any possible danger presented by the condition, would not bea sufficient base for willful and wanton conduct. That principle is correct. The complaintshould describe a condition that a defendant should suspect presents some danger. If thedanger is not self-evident, a plaintiff should have to allege that defendant should havesuspected some risk of harm. Restatement (Second) of Torts