finding error in the trial court’s refusal to grant the plaintiff’s motion for discovery prior to ruling on a motion to dismiss
How later courts described this case
- finding error in the trial court’s refusal to grant the plaintiff’s motion for discovery prior to ruling on a motion to dismiss
- "Motions for summary judgment can only be granted after discovery is taken, and may entail additional expense, but the trial court has the power to limit initial discovery to an issue which may be dispositive."
- both courts held that section 17(a) of the EMS Act provides immunity to EMTs for ordinary negligence
- “[w]here facts of necessity are within defendant’s knowledge and not within plaintiff’s knowledge, a complaint which is as complete as the nature of the case allows is sufficient”
Written by the judges who cited it.
The opinion
JUSTICE GREEN, specially concurring:
I agree with the majority that the various counts in issue state a cause of action for wilful and wanton misconduct because of the allegations that the EMTs stopped treatment too soon. The allegations in that respect are very detailed. I disagree with any contention of the majority that allegations that the EMTs administered CPR in violation of applicable standards while the decedent was not in a horizontal position were sufficient to state a cause of action for wilful and wanton misconduct. However, as the question of striking portions of the various counts are not before us, I concur in the decision to reverse and remand.
In Adkins, in holding the complaint did not properly plead wilful and wanton conduct, the court stated that "[f\act pleading, in contrast to notice pleading, is required in this State.” (Emphasis added.) (Adkins, 129 Ill. 2d at 518, 544 N.E.2d at 743.) That opinion noted that the first count of that complaint failed to "sufficiently allege facts showing that any [person for which that defendant was responsible acted] *** without adequate cause or with utter indifference to his rights or in conscious disregard of them.” (Emphasis added.) Adkins, 129 Ill. 2d at 518, 544 N.E.2d at 743.
Here, the failure of the EMTs to place the decedent in a horizontal position before administering CPR could be wilful and wanton only if that could reasonably have been done. Absent an allegation of that fact, the complaint here also failed to "sufficiently allege facts showing that” any EMT personnel here acted wilfully and wantonly in regard to the CPR.
Curiously, plaintiff did allege in paragraph 53 of count III of the amended complaint that the decedent could have been extracted from the vehicle before he was declared dead and emergency care ceased, but no such allegation was made as to what could have been done when CPR was administered.
The general language quoted by the majority from Meerbrey and Burdinie was stated in opinions where the court found the allegations failed to set forth causes of action. Justice Ward was the author of both Meerbrey and Adkins. I do not interpret that language to negate the necessity of pleading ultimate facts showing a cause of action.