An Illinois Supreme Court Reminder of What Constitutes Willful and Wanton Conduct under Tort Immunity Act: Barr v. Cunningham, 2017 IL 120751

The Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101, et seq.—commonly known as the Tort Immunity Act—provides certain statutory immunities to local public entities. These protected entities include, but are not limited to, counties, townships, municipalities, school districts, park districts, and other local governmental bodies. See 745 ILCS 10/1-206. The Act sets forth those circumstances in which an entity is entitled to immunity, but many of the Act’s provisions expressly except immunity when an entity’s conduct is “willful and wanton.”

What constitutes “willful and wanton conduct” under the Act has been the subject of many Appellate Court opinions, and courts have expressed varying degrees of willingness to grant entities’ dispositive motions on immunity grounds when willful and wanton conduct is claimed. The Act itself defines willful and wanton conduct 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 disregard for the safety of others or their property.” 735 ILCS 10/1-210. The plain language of the Act, therefore, requires that a Plaintiff prove: (1) a course of action; and (2) one of the following: deliberate intent to cause harm, utter indifference to safety, or conscious disregard for safety.

There is little discord in the law when intentional conduct is involved, but disputes often arise as to what conduct constitutes an utter indifference to or conscious disregard for safety. The concept of willful and wanton conduct is fairly nebulous, falling somewhere on the scale between ordinary negligence and intentional conduct. To further complicate things, some Appellate Court opinions have cited to the “course of action” language to require that a plaintiff present evidence of prior accidents or injuries demonstrating an entity’s knowledge of a specific and probable harm. Other Appellate Court opinions appear to ignore or gloss over the “course of action” language altogether. Many opinions affirm dismissal and summary judgment where the trial court found, as a matter of law, that there was no willful and wanton conduct. Still others—relied upon heavily by plaintiffs opposing dispositive motions—reiterate the general rule that the question of willful and wanton conduct is ordinarily a question of fact for the jury.

This past March, in Barr v. Cunningham, 2017 IL 120751, the Illinois Supreme Court reminded practitioners and lower courts that the question of willful and wanton conduct is not always a question of fact for a jury. The Court also found that, absent an activity generally associated with serious injury, a plaintiff must at least show some prior injuries that occurred during the activity to establish willful and wanton conduct on the part of the defendants.

Evan Barr was a high school student at James B. Conant High School. Barr sustained an eye injury while playing floor hockey in physical education class. The floor hockey ball bounced off another player’s stick and hit Barr in the eye. Barr sued the physical education teacher, Laurel Cunningham, and the school district, alleging that Cunningham’s failure to require the students to wear safety goggles amounted to willful and wanton conduct under the Tort Immunity Act. At trial, Cunningham and the school district moved for directed verdict, arguing that Barr had failed to prove willful and wanton conduct.

Cunningham had rules the students had to follow while playing floor hockey. For example, she limited the number of students playing, and banned high-sticking, fighting, checking, and lifting the ball with a stick. The students used plastic hockey sticks and a squishy “safety” ball that flattened when stepped on. Cunningham testified that she never saw a student get hit in the face with a ball or stick during the games of floor hockey, but admitted that the ball would fly above players’ waists during games. No other Conant student had suffered a serious injury from floor hockey prior to Barr’s accident. Safety goggles were available for students’ use and were kept in a bin with the hockey balls in the equipment closet. Cunningham admitted that she could have required the students to use the safety goggles, but she never instituted such a requirement.

The trial court granted the defendants’ motion for directed verdict, finding that Cunningham’s conduct did not rise to the level of willful and wanton conduct. Therefore, held the court, both Cunningham and the school district were entitled to immunity under Section 3-108 of the Act. The Appellate Court for the First District reversed, with one judge dissenting. The First District found that the issue of willful and wanton conduct should go to the jury. Specifically, it held that a jury could find that Cunningham’s “conscious decision to forego the use of already-available safety equipment [i.e., the goggles]” was willful and wanton. Barr v. Cunningham, 2016 IL App (1st) 150437.

The Supreme Court granted the defendants’ petition for leave to appeal, reversed the Appellate Court, and affirmed the trial court’s entry of directed verdict. First, the Court found the fact that safety goggles were available and stored with the hockey equipment did not present a substantial question as to whether Cunningham was willful and wanton. Id. at ¶ 16. The Court pointed out that Cunningham imposed and enforced various safety rules, and that she did not believe a serious eye injury could occur using the safety ball and plastic sticks. This, according to the Court, did not exhibit a conscious disregard for safety; to the contrary, the evidence showed a conscious consideration of student safety. Id. at ¶ 17.

Second, the fact that Cunningham was aware that the ball could fly above players’ waists and hit them in the eye did not necessitate sending the issue of willful and wanton conduct to the jury. Id. at ¶ 19. The Court noted that to establish willful and wanton conduct, “Illinois courts have required, at minimum, some evidence that the activity is generally associated with a risk of serious injuries.” Id. at ¶ 21. While the Supreme Court agreed with the First District that evidence of prior incidents need not involve the same specific injury as that suffered by plaintiff, the Supreme Court noted that there “was no evidence at all of prior injuries. Plaintiff did not present evidence of any other injuries suffered by anyone playing floor hockey.Id. at ¶ 20. The Court reiterated that willful and wanton conduct is the “failure to take reasonable precautions after ‘knowledge of impending danger.’” Id. “Plaintiff failed to introduce evidence of any particular dangers associated with floor hockey that called for the use of protective eyewear by students,” and Barr’s claim of willful and wanton conduct therefore amounted to “mere speculation.” Id. at ¶ 23. The Court noted that “[i]f there is insufficient evidence to sustain an allegation of willful and wanton conduct, the issue should not go to the jury for its consideration.” Barr, 2017 IL 120751, ¶ 15. The Court affirmed judgment in favor of the defendants.

Barr serves as a reminder to local public entities and their attorneys to actively pursue dismissal, summary judgment, and/or directed verdicts where there is no allegation or evidence of prior injuries and the activity is not one generally associated with serious injuries. In such a situation, a strong argument exists that the local public entity did not have the requisite “knowledge of impending danger” to establish willful and wanton conduct. A determination of the absence of willful and wanton conduct can—and should—be made by the trial court as a matter of law in such circumstances. Indeed, an expeditious dispositive resolution to an action in which Plaintiff has merely pleaded acts amounting to negligence, but couched those acts as willful and wanton conduct, furthers the underlying intent and purpose of the Act—to prevent the dissipation of public funds from their intended purpose on damage claims.

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