In trying to define a test for whether certain materials were lurid, Unites States Supreme Court Justice Potter Stewart famously said, “I know it when I see it.”1 The argument presented by Justice Stewart at the same time both defined a boundary and highlighted the lack of one. In personal injury cases, litigants seeking to plead willful and wanton conduct are often faced with a similar dilemma. Judges claim they know what willful and wanton conduct is when they see it and often strike properly-pleaded complaints because it isn’t “it”. This leaves the pleading attorney with no guidance and lots of uncertainty.
As will be shown below, pleading requirements for willful and wanton conduct are liberal, generous and pleadings should rarely be stricken. However, practical experience shows that judges frequently – dare we say usually – strike allegations because the case before them does not meet their individual threshold.2
Two Kinds of Willful and Wanton. Willful and wanton is not a separate and independent tort.3 It has been called an aggravated form of negligence, regarded as a hybrid between negligent and intentionally tortuous conduct.4 Under the facts of one case, willful and wanton acts may be only a few degrees more than negligence, while under the facts of another case, willful and wanton acts may be only a few degrees less than intentional wrongdoing.5
Illinois recognizes two varieties of willful and wanton conduct, intentional and reckless.6 The only factor distinguishing the two is the actor’s mental state.7 Intentional willful and wanton conduct is committed with “actual” or “deliberate” intent to harm.8 By contrast, reckless willful and wanton conduct falls between actual intent and negligence.9 Reckless willful and wanton conduct contemplates more than mere inadvertence, incompetence, or unskillfulness. 10 Importantly, ill will is not required, but the party committing the reckless willful and wanton act or failure to act “‘must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury.’”11
The Illinois Supreme Court and Illinois legislature has defined reckless willful and wanton conduct as conduct committed with “utter indifference” to or “conscious disregard” for the safety of others,12 sometimes called a “reckless disregard” for the safety of others.13 Utter indifference or conscious disregard for the safety of others may be inferred from the nature of the conduct at issue.14 In American National Bank15, the Supreme Court provided two examples of conduct from which “reckless disregard” for the safety of others can be inferred. The first is “a failure, after knowledge of impending danger, to exercise ordinary care to prevent it.”16 The second is “a failure to discover danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.”17
Pleading Willful and Wanton Conduct is Sometimes Required. Three scenarios require a plaintiff to allege that a defendant’s behavior amounted to willful and wanton conduct. First, when the plaintiff is a hitchhiker and, specifically, a guest passenger in the defendant’s automobile.18 Second, when the plaintiff is a trespasser and the defendant is the owner or occupier of the premises.19 Third, when a statute limits liability to cases where the defendant’s conduct is willful and wanton, such as the Local Governmental and Governmental Employees Tort Immunity Act.20
Standards for Pleading Willful and Wanton Conduct. To sufficiently plead willful and wanton conduct in Illinois courts, a plaintiff must also allege facts which, if proven, show a) a deliberate intention to harm or b) an utter indifference to or conscious disregard for the plaintiff’s safety.21 The same actions may be done negligently or with willful and wanton disregard. 22 Allegations for willful and wanton conduct will not fail simply because they mirror those in a count for negligence and merely change the state of mind.23
What constitutes willful and wanton conduct depends greatly on the facts of each case and is within the particular province of a jury to consider. 24 The Illinois Supreme Court has warned against strictly defining willful and wanton conduct because whether conduct amounts to willful and wanton behavior is a matter of degree.25 The issue of whether acts constitute willful and wanton conduct is a question of fact for a jury; a court may decide as a matter of law only whether willful and wanton behavior is sufficiently pled.26
Examples of Approved Willful and Wanton Pleading. Allegations that defendant motorist drove at excessive rate of speed in rain and did so while exhibiting utter indifference to or conscious disregard for his safety and safety of others sufficiently alleged willful and wanton conduct.27 The Krivitskie court noted “‘it is the exceptional case wherein it can be said that the question of willful and wanton misconduct on the part of a driver is not a question of fact for the jury.’”28
Other cases agree with the Krivitskie court’s conclusion. For example, in Klatt v. Commmonwealth Edison Co.29, the Illinois Supreme Court held it was for the jury to decide whether driving on the shoulder of road on a rainy day and then swerving into traffic was willful and wanton. In Captain v. Saviano30, a jury question was presented as to whether the defendant acted willfully and wantonly where evidence showed he drove excessively fast at night, on the wrong side of the street, and without changing direction struck a nine-year-old boy who was a few feet from the curb. In Baumgardner v. Boyer31, it was for the jury to decide whether a motorist’s conduct was willful and wanton where evidence showed he disregarded warning signs and failed to stop at an intersection, saw the plaintiff’s automobile a good distance before approaching the intersection, and without giving warning drove his automobile into the intersection at high rate of speed and rear-ended the plaintiff.
In a wrongful death action against paramedics employed by a fire protection district, the plaintiff sufficiently pled willful and wanton conduct by alleging “despite defendants’ knowledge prior to their arrival on the scene that decedent was having difficulty breathing and her throat was closing due to an allergic reaction, and despite their training and standard operating procedures and accepted emergency practices, they waited between seven and eight minutes to administer two of the necessary medications and never administered the third.”32 The court reasoned these “allegations, if proven, could be sufficient to show that defendants were aware of impending danger to decedent and failed to exercise ordinary care to prevent it, thereby acting with reckless disregard for her safety.”33 The court found it was unnecessary for the complaint to allege “particular standard operating procedures” that defendants allegedly violated.34 It was sufficient to specify “the ways in which defendants violated the standard operating procedures.”35
In Straub v. City of Mt. Olive36, the plaintiff tripped over an unmarked baling wire, supporting a young tree, that was attached from the tree to a stake in the ground.37 The court held allegations that “(1) the City knew of the danger associated with the support wire and (2) it knew other individuals had tripped or fallen over the wire” sufficiently pled the City’s willful and wanton misconduct.38
In Hill v. Galesburg Community Unit School District 20539, plaintiff was injured when a beaker exploded while he was performing an experiment in chemistry class. The court held the complaint sufficiently pled willful and wanton conduct by alleging “the teacher (1) had actual knowledge that [the plaintiff ] was performing the experiment without wearing eye protection, (2) had actual knowledge of the dangers of performing the experiment, and (3) consciously disregarded [the plaintiff ’s] safety by permitting him to participate in the experiment without eye protection.”40
In Muellman v. Chicago Park District41, plaintiff was injured when she stepped on an open pipe in Grant Park. The court held evidence supported the defendant acted willfully and wantonly where evidence showed the defendant’s employees knew of uncovered pipes, but painted bright orange only those pipes that had the potential to damage their mowing equipment, not those upon which the general public could walk and be injured.42 The court reasoned the defendant was aware of an existing dangerous condition and took steps to protect itself but consciously disregarded the safety of others by doing nothing to protect them. 43
In Benhart, the plaintiff alleged she was injured by the defendant’s intentional removal of a safety feature, nonskid strips, from a wave pool, and such removal was a conscious disregard of defendant’s knowledge that the protection the strips previously provided would be absent.44 The court found that these allegations adequately alleged the defendant’s willful and wanton conduct. Id.
These cases do provide some guidance. First, intent is not required. Second, no malice is required to sustain a willful and wanton conduct count. Third, pleading actual knowledge of the defendant and disregard of a rule, regulation or safety concern should provide enough foundation for a pleading alleging of willful and wanton conduct. But even without actual knowledge, pleading that a defendant has proceeded with knowledge of the danger should suffice as well.
But Maybe Not…Despite the consistency in the above cases, some courts have taken a different view. These cases help make the pleading water murky. For example, in Leja v. Community Unit School District 30045, plaintiff was injured by a volleyball net crank on a school’s grounds that snapped back. The complaint failed to sufficiently allege willful and wanton conduct despite alleging the school’s knowledge the crank tended to snap back.46 Additional allegations were necessary to permit an inference the school was on notice of a high risk of injury posed by the crank. Also, allegations that warning labels on the crank were insufficient to create such notice, and allegations the school failed to instruct the student to use the crank in accordance with the label could not amount to willful and wanton conduct.47
Willful and wanton conduct was inadequately alleged where a plaintiff was injured by colliding with a goal post during a football game because there were no allegations that the defendant had notice of prior injuries as a result of the goal post structure.48 In Ramos v. Waukegan Community Unit School District No. 6049, the plaintiff was injured while jumping on a rope on a sidewalk at the direction of a teacher. The court held allegations of a cracked and uneven sidewalk were insufficient to state a cause of action for willful and wanton conduct because the plaintiff did not allege facts showing why the sidewalk was unreasonably dangerous.50 In Floyd v. Rockford Park District51, a public entity’s violation of its own internal rules was not proof of negligence, let alone willful and wanton conduct.
These cases, and nearly all that affirm the striking of a willful and wanton conduct count on pleading grounds, involve governmental entities. The pleading requirements for these entities include additional factors and, therefore, courts apparently tend to strike these counts more often. There might be public policy issues involved as well. Therefore the pleading rules derived from these cases might be questioned. At best, these cases make an exact formulation of pleading willful and wanton conduct untenable.
Guidelines for Proper Pleading. While there is no bright line that gives a pleading attorney absolute clarity, two guiding principles emerge from the review. First, courts must be mindful of the fact that it is for the jury to determine whether the conduct rises to the level of willful and wanton conduct. Judges are not to substitute their experience or personal beliefs about whether they believe the conduct rises to the level of proof necessary.
Rather, the courts are only to evaluate the pleading to determine if the alleged conduct is sufficient and might rise to the level of willful and wanton conduct before a jury.
Second, willful and wanton conduct is not equivalent to intentional conduct. Illinois recognizes non-intentional conduct that can be willful and wanton conduct.
Malice is not required. Anger is not required. In fact, knowledge of the acting party is not even required (though acting in the face of that knowledge certainly helps prove willful and wanton conduct). All the cases require is the pleading of basic, simple facts that might be a basis for the claim. Those facts can be identical to facts pled in a claim for negligence.
With these principles in mind, a careful pleader and considerate court can properly navigate the pleading rules and allow the decision about whether the conduct was sufficient to be left in the hands of the jury, where it belongs.
1 Jacobellis v. Ohio, 378 U.S. 174 (1964).
2 Willful and wanton conduct is not the same as punitive damages; they might serve as a basis for these damages, but need not be so. This article will concern itself only with pleading requirements.
3 Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 274 (1994).
4 Sparks v. Starks, 367 Ill. App. 3d 834, 837 (1st Dist. 2006).
5 Ziarko, 161 Ill.2d at 275-76.
6 Poole v. City of Rolling Meadows, 167 Ill. 2d 41, 48 (1995)
7 Kirwan v. Lincolnshire-Riverwoods Fire Protection Dist., 349 Ill. App. 3d 150, 155 (2d Dist. 2004).
8 Illinois Pattern Jury Instructions, Civil, No. 14.01 (1995).
9 Poole, 167 Ill. 2d at 47.
10 Geimer v. Chicago Park District, 272 Ill. App. 3d 629, 637 (1995).
11 Kirwan, 349 Ill. App. 3d at 155, quoting Bartolucci v. Falleti, 382 Ill. 168, 174 (1943)).
12 Pfister v. Shusta, 167 Ill.2d 417, 421 (1995); 745 Ill.Comp.Stat. § 10/1–210
13 American National Bank & Trust Co. v. City of Chicago, 192 Ill.2d 274, 285 (2000).
14 Kirwan, 349 Ill. App. 3d at 156, citing Doe v. Calumet City, 161 Ill.2d 374, 391 (1994)
15 192 Ill.2d 274, 285 (2000).
18 625 Ill.Comp.Stat. § 5/10-201.
19 Rodriguez v. Norfolk & W. Ry. Co., 228 Ill. App. 3d 1024 (1st Dist. 1992).
20 745 Ill.Comp.Stat. § 10/1-210.
21 Kirwan, 349 Ill. App. 3d at 155-56 (emphasis added). See also Morris ex rel. Morris v. Williams, 359 Ill.App.3d 383 (4th Dist. 2005); Brugger v. Joseph Academy, Inc., 326 Ill.App.3d 328, 334 (1st Dist. 2001).
22 Block v. Lohan Associates, Inc., 269 Ill. App. 3d 745 (1st Dist. 1993).
24 Murray v. Chicago Youth Center, 224 Ill. 2d 213, 245 (2007); Sprague v. Commonwealth Edison Co., 59 Ill.App.3d 342, 346 (1st Dist. 1978).
25 O’Brien v. Township High School District 214, 83 Ill.2d 462, 469 (1980).
26 Leja v. Community Unit School District 300, 2012 IL App (2d) 120156, ¶ 11.
27 Krivitskie v. Cramlett, 301 Ill. App. 3d 705, 708-09 (2d Dist. 1998).
28 Id. at 709, quoting Hatfield v. Noble, 41 Ill. App. 2d 112, 119 (1963).
29 33 Ill.2d 481, 488 (1965).
30 335 Ill. App. 125 (1st Dist. 1948).
31 320 Ill. App. 438 (1st Dist. 1943).
32 Kirwan, 349 Ill. App. 3d at 157.
36 240 Ill. App. 3d 967 (4th Dist. 1993)
37 Id. at 970.
38 Id. at 978.
39 346 Ill. App. 3d 515 (3d Dist. 2004).
40 Id. at 517.
41 233 Ill. App. 3d 1066, 1066-67 (1st Dist. 1992).
42 Id. at 1069.
44 218 Ill. App. 3d at 555.
45 2012 IL App (2d) 120156.
46 Id. at ¶¶ 9 and 13.
47 Id. at ¶¶ 15-16.
48 Bialek v. Moraine Valley Community College School District, 267 Ill. App. 3d 857, 865 (1st Dist. 1994).
49 188 Ill. App. 3d 1031, 1039 (2d Dist. 1989).
50 Id. at 1039.
51 355 Ill. App. 3d 695, 702 (2d Dist. 2005).
G. Grant Dixon III is the founder of Dixon Law Office, Oakbrook Terrace and La Grange. A trial lawyer over 20 years, Grant represents plaintiffs in all forms of personal injury and wrongful death. John received his J.D. from The John Marshall Law School and his undergraduate degree from Indiana University.