# Floyd Ex Rel. Floyd v. Rockford Park Dist.

> Appellate Court of Illinois · January 12, 2005 · 355 Ill. App. 3d 695

URL: https://www.frixlaw.com/law-library/cases/9860174

## Case

- **Full name:** IMAGE FLOYD, a Minor, by His Mother and Next Friend, Tina Floyd, Plaintiff-Appellant, v. THE ROCKFORD PARK DISTRICT Et Al., Defendants-Appellees
- **Court:** Appellate Court of Illinois
- **Decided:** January 12, 2005
- **Citations:** 355 Ill. App. 3d 695; 291 Ill. Dec. 418; 823 N.E.2d 1004; 2005 Ill. App. LEXIS 24
- **Precedential status:** Published
- **Opinion:** Dissent by Bowman
- **Judges:** Bowman, McLAREN
- **Cited by:** 44 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9860174

## How later opinions describe it (automated extraction)

- holding that where the plaintiff's complaint could not withstand a section 2-615 motion to dismiss due to a failure to allege facts sufficient to state a cause of action for willful and wanton misconduct, the complaint was also properly dismissed pursuant to section 2-619(a)(9)
- finding that plaintiff failed to state a claim for willful and wanton supervision where the complaint lacked allegations of defendants’ prior knowledge of incidents where metal golf clubs were used to hit other children
- finding that allegations about the perpetrator’s “general bad behavior” were insufficient where the plaintiff failed to allege that the defendants were aware that the perpetrator “was physically violent to others” before he struck the victim with a metal golf club
- holding that a public entity’s violation of its own rules does not constitute proof of negligence, much less willful and wanton conduct
- noting that “a public entity’s violation of its own internal rules does not constitute proof of negligence, much less willful and wanton conduct”

## Opinion text

JUSTICE BOWMAN, dissenting:
The majority concludes that plaintiff failed to plead facts sufficient to establish willful and wanton conduct. I respectfully disagree. The Act 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.” 745 ILCS 10/1 — 210 (West 2002). In determining whether a complaint states a cause of action to survive a section 2 — 615 dismissal, the allegations must be construed in the light most favorable to the plaintiff, and all well-pleaded facts and reasonable inferences drawn from those facts are accepted as true. Oliveira, 201 Ill. 2d at 147.
Here, plaintiff alleged that throughout the summer, Washington “regularly and continuously exhibited belligerent and violent behavior toward the supervisors and the other registered participants. He fought with, threatened and verbally abused other participants and supervisors” and “disobeyed orders and directions given to him.” On the day of the incident, the children went on a field trip, and Washington showed “aggressive and belligerent behavior” toward supervisors and camp participants. Despite this behavior, after the field trip the supervisors allowed Washington to opt out of a group activity and swing a metal golf club in the middle of the playground. When plaintiff approached Washington to retrieve his sunglasses, Washington intentionally struck plaintiff on the head -with the club, causing serious injury.
The majority states that plaintiff failed to allege facts sufficient to establish that defendants intentionally caused harm to plaintiff or showed an utter indifference or conscious disregard for plaintiff’s safety, because he alleged only “general bad behavior” by Washington, without alleging exactly what that behavior entailed. 355 Ill. App. 3d at 703. I recognize that legal and factual conclusions unsupported by specific factual allegations should be disregarded (La Salle National Bank v. City Suites, Inc., 325 Ill. App. 3d 780, 790 (2001)), and factual deficiencies cannot be cured by a liberal construction (Cummings v. City of Waterloo, 289 Ill. App. 3d 474, 479 (1997)). However, these propositions do not defeat plaintiffs claim, because plaintiffs allegations go beyond simple factual conclusions; plaintiff alleged that Washington fought with, threatened, and verbally abused others, that he refused to follow orders, and that he was aggressive and belligerent. Cf. People ex rel. Madigan v. Tang, 346 Ill. App. 3d 277, 289-90 (2004) (State made conclusory allegations that the defendant “caused or allowed” environmental violations to occur); Goodknight v. Piraino, 197 Ill. App. 3d 319, 324-25 (1990) (plaintiffs contention, that it could be inferred from her allegations that her drinking and intoxication were involuntary, was a factual conclusion that need not be taken as true for purposes of motion to dismiss). The dictionary defines “fight” as, among other things, to “strive to overcome or destroy a person, animal, or thing esp. by blows or weapons” (Webster’s Third New International Dictionary 847 (1986)), and its definition of “threaten” includes to “promise punishment, reprisal, or other distress to” (Webster’s Third New International Dictionary 2382 (1986)). Plaintiffs allegations, viewed in the light most favorable to him and given their broadest possible meanings, are sufficient to withstand a motion to dismiss.
Furthermore, a complaint should not be dismissed for failing to state a claim unless it clearly appears that no set of facts can be proved under the pleadings that would entitle the plaintiff to recover. American National Bank & Trust Co. v. City of Chicago, 192 Ill. 2d 274, 279 (2000). Plaintiff has alleged that even though the supervisors had adequate warning of Washington’s aggressiveness and violence, they still allowed him to have unsupervised use of a metal golf club. In contrast, the majority requires an allegation “that registered participants, or particularly Washington, had used metal golf clubs or baseball bats to batter other children, supervisors, or anyone else.” 355 Ill. App. 3d at 701. Such a heightened requirement apparently stems from the mistaken belief that the Act’s definition of “willful and wanton conduct” is significantly different from the common-law definition of the term, and more difficult to satisfy.
The first case to distinguish the Act’s definition of “willful and wanton conduct” from the common-law definition was Benhart, 218 Ill. App. 3d 554 . In Benhart, this court held that the definitions were distinct, noting that the Act’s definition added the “course of action” language not present in the common-law definition. Benhart, 218 Ill. App. 3d at 558-59 . However, the Act’s definition has now merged into the common-law definition. For example, the Illinois Pattern Jury Instructions provides the following definition:
“When I use the expression ‘willful and wanton conduct’ I mean a course of action which [shows actual or deliberate intention to harm] [or which, if not intentional,] [shows an utter indifference to or conscious disregard for (a person’s own safety) (and) (the safety of others)].” Illinois Pattern Jury Instructions, Civil, No. 14.01 (2000).
This definition is almost identical to the Act’s definition. Significantly, our supreme court has stated that it “and the legislature have defined willful and wanton conduct as a course of action which shows actual or deliberate intent to harm or which, if the course of action is not intentional, shows an utter indifference to or conscious disregard for a person’s own safety or the safety or property of others.” Pfister v. Shusta, 167 Ill. 2d 417, 421 (1995). Again, this definition corresponds to the Act’s definition. Accordingly, I believe that there is currently no significant difference between the common-law definition of willful and wanton conduct and the Act’s definition. As a result, the pleading requirements for willful and wanton conduct under the Act should be the same as in other actions, and should not unduly emphasize the “course of action” language.
Willful and wanton conduct includes actions that have been less than intentional, such as when there has been “ ‘a failure, after knowledge of impending danger, to exercise ordinary care to prevent’ the danger, or a ‘failure to discover the danger through *** carelessness when it could have been discovered by the exercise of ordinary care.’ ” Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 274 (1994), quoting Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 583 (1946). Willful and wanton conduct is a hybrid between negligent and intentionally tortious behavior (Ziarko, 161 Ill. 2d at 275 ), and it does not occupy a precise point on the continuum of liability between negligent and intentional conduct (Hill v. Galesburg Community Unit School District 205, 346 Ill. App. 3d 515, 522 (2004)). “Under the facts of one case, willful and wanton misconduct may be only degrees more than ordinary negligence, while under the facts of another case, willful and wanton acts may be only degrees less than intentional wrongdoing.” Ziarko, 161 Ill. 2d at 275-76 . I believe that plaintiff has sufficiently alleged a cause of action for willful and wanton conduct, and that it should be the role of the jury, not the courts, to determine where on the continuum of liability defendants’ behavior falls. Thus, I would reverse the trial court’s decision and remand the cause for further proceedings.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9860174. Public record. Not legal advice.