Category Archives: Willful & Wanton

Bielema v. River Bend Community School District No. 2 – Summary Judgment in Favor of School District for Child’s Fall in School Gymnasium Affirmed

Bielema v. River Bend School District No. 2, 2013 IL App (3d) 120808 (McDade)

Facts:  The plaintiff was injured when she slipped on spilled Gatorade in a school gymnasium after an evening sporting event.  Just prior to the fall, the school principal had noticed the spill and requested her husband to “stand guard” while she went to get materials to clean it up.  The husband got distracted with a conversation and failed to warn the plaintiff as she approached the area of the spill.  The trial court determined that the facts did not rise to the statutory definition of willful and wanton conduct and granted summary judgment.  Plaintiff appealed.

Holding:  The statutory definition, not the common law definition, of willful and wanton conduct applies to cases involving tort immunity and the plaintiff did not allege facts that would establish willful and wanton conduct on behalf of the school, particularly when the evidence revealed that the principal was actively taking steps to remove the danger.

Filed in Trial Book Under:  Willful and Wanton; School Immunity, Tort Immunity

Commentary:  With the requirement to prove willful and wanton conduct, this doesn’t appear to be a very strong case for the plaintiff and the result here is not surprising.  A negligence case could certainly be established so long as the husband was deemed an agent of the school (which he should be), but willful and wanton conduct is another story altogether.  The more significant aspect of the opinion is the rejection of an argument by the plaintiff to apply a definition of willful and wanton conduct found in a common law case, rather than the statutory definition found in 745 ILCS 10/1-210.  The First District has already reached this conclusion in Tagliere v. Western Springs Park District, as has the Fourth District in Thurman v. Champaign Park District.  None of the definitions of willful and wanton conduct that I have seen make the burden of proof very easy, but I could see how some of the common law definitions from cases could have subtle differences in language that make some definitions appear easier to prove than others.  The Supreme Court in Harris v. Thompson has recently held that the statutory definition of willful and wanton conduct is “entirely consistent with this court’s long standing case law”, but these cases seem to be trying to close the door on using an alternative definition and make pretty clear that it should only be taken from the statute.  It’s good to keep this mind when responding to a motion to dismiss on these grounds.

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Filed under Tort Immunity, Willful & Wanton

Harris v.Thompson – Illinois Supreme Court Finds That Public Ambulance Driver is Immune from Negligence Count Despite Conflict Between Tort Immunity Act and Illinois Vehicle Code, Overruling 5th District Bradshaw Case

Thompson v. Harris, 2012 IL 112525 (Freeman)

Facts:  Plaintiff is injured in a collision with an ambulance that was transporting a patient from a nursing home to a hospital when the ambulance went through a controlled intersection against his signal.  The defendant claims that he had his lights on and slowed to 10 mph and blasted the siren a few times before entering the intersection.  Plaintiff claimed that he was going at least 40 mph at the time of the collision.  Plaintiff plead both a negligence count and a willful and wanton count against the driver and his employer, Massac County Hospital District, a public agency.  The defendant’s motion to dismiss the negligence count pursuant to section 10-101 of the Tort Immunity Act was denied by the trial court.  At the trial, the trial court directed a verdict on the issue of willdul and wanton but permitted the negligence count to proceed to the jury.  The jury found in favor of the plaintiff and awarded $665,000 in damages.  The defendant appealed the verdict arguing that the Tort Immunity Act barred any claim against the ambulance driver for negligence.  Relying upon the Fifth District case of Bradshaw v. City of Metropolis, 293 Ill.App.3d 389 (1997), whic held that the Illinois Vehicle Code and Tort Immunity Acts were in conflict and that the Illinois Vehicle Code, which imposes a duty on an emergency vehicle to refrain from negligence, serves to abrogate the Tort Immunity Act, the Fifth District appellate court affirmed the verdict.  The Defendant appealed to the Illinois Supreme Court.

Holding:  (1) The Illinois Vehicle Code does not abrogate the Tort Immunity Act and the driver of a public ambulance is not liable for negligence, only willful and wanton conduct, (2) the holding in this case applies both retroactively and prospectively, and (3) there was insufficient evidence to sustain an allegation of willful and wanton conduct against the driver of the ambulance and the trial court’s directed verdict on that issue was proper.

Filed In Trial Book Under:  Tort Immunity – Emergency Call; Willful and Wanton Conduct; Statutory Interpretation; Directed Verdict

Commentary:  Personally, I agree with the Kilbride dissent in this case and feel that the Bradshaw case was sound.  However, with that said, the Bradshaw case was an anomaly and none of the other districts followed its reasoning, so it’s not too surprising to see the Supreme Court step in and eliminate any confusion from this outlier case.  Referencing the prior Supreme Court opinions, Henrich v. Libertyville High School, 186 Ill.2d 381 (1998), the court states:

“A court must construe statutes relating to the same subject matter with reference to one another so as to give effect to the provisions of each, if reasonable. Henrich, 186 Ill. 2d at 391-92. Sections 11-205 and 11-907 of the Vehicle Code provide certain privileges both to public and private employees who operate emergency vehicles. In contrast, the Tort Immunity Act does not apply to private employees, but provides immunity only to public employees absent willful and wanton conduct. Therefore, these sections of the Vehicle Code do not abrogate the Tort Immunity Act. See Sanders, 306 Ill. App. 3d at 363; Carter, 304 Ill. App. 3d at 450. Under the plain language of section 5-106 of the Tort Immunity Act, the legislature has chosen to grant immunity from negligence liability to public employees like Thompson. See Young, 308 Ill. App. 3d at 560. For the foregoing reasons, Bradshaw v. City of Metropolis, 293 Ill. App. 3d 389 (1997), is hereby overruled.”

The reasoning for the second holding, to apply the case both retroactively and prospectively is sound.  The first prong of the three-factor analysis adopted from Chevron Oil v. Huson, 404 U.S. 97, 106-107 (1971), see Aleckson v. Village of Round Lake park, 176 Ill.2d 82, 87-91 (1997), requires that the decision must establish a new rule of law, either by overruling clear past precedent on which litigants have relied, or by deciding an issue of first impression where the resolution was not clearly foreshadowed.  This case simply doesn’t meet the first requirement.  As an attorney practicing primarily in the First District, where Sanders v. City of Chicago, 306 Ill.App.3d 356 (1999) rejected the Bradshaw logic in 1999, it seems as if the Fifth District had it good for a long time.  As the opinion states, “Bradshaw was hardly clear precedent.”

The third holding on willful and wanton conduct was a bit disappointing, given the de novo analysis.  The court is supposed to view the evidence in the light most favorable to the plaintiff.  In this case, the defendant claimed that he entered the intersection at 10 mph with his lights on and “blasted” his siren from 100 feet away prior to entering the intersection.  The plaintiff, on the other hand, did not testify to hearing the siren or seeing the lights and testified that the ambulance was traveling approximately 40 mph.  A vehicle going 40 mph would travel 60 feet per second, and be in the intersection less than 1.5 seconds from the alleged “blasting of the siren”, which is less time than a reasonable driver would have to react and stop if they were traveling the speed limit towards the intersection.  There is a lot of conflict between this testimony.  In short, I feel that entering an urban intersection at 40 mph against the traffic control device, particularly when there was the visual obstruction that made the intersection blind as explained by the ambulance driver, is certainly beyond mere negligence and reaches a reckless disregard for the safety of others.  The fact that this case could be manipulated in the future to argue that this conduct is appropriate as a matter of law is potentially troublesome.

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Filed under Statutory Interpretation, Tort Immunity, Willful & Wanton