Kirwan v. Lincolnshire-Riverwoods Fire Protection District

811 N.E.2d 1259, 285 Ill. Dec. 380, 349 Ill. App. 3d 150

• Court: Appellate Court of Illinois
• Decided: June 24, 2004
• Docket: 2-02-1376
• Status: Published

Opinions

JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, James Kirwan, the administrator of the estate of decedent, Kimberly Kirwan, sued defendants, Lincolnshire-Riverwoods Fire Protection District (Fire Protection District) and Jason Phillips, James Spicka, Raymond Amidei, James Carney, and David Gnadt, who were paramedics, firemen, and/or emergency medical technicians employed by the Fire Protection District, in a wrongful death action stemming from the death of Kimberly Kirwan. The trial court dismissed plaintiffs amended complaint, finding that it failed to properly allege that defendants committed willful and wanton misconduct, as required by section 3.150 of the Emergency Medical Services (EMS) Systems Act (EMS Act) (210 ILCS 50/3.150 (West 2002)). Plaintiff appeals. We reverse.

The following is a summary of the allegations contained in plaintiffs amended complaint. On March 7, 2001, decedent experienced an allergic reaction to walnuts while at Bar Louie, an establishment in Riverwoods. At 9:26 p.m. a 9-1-1 call was placed. The caller explained that decedent was having an allergic reaction and, as a result, was having a hard time breathing and staying awake. The caller further stated that decedent’s throat was closing, and she was turning red and wheezing. The 9-1-1 dispatcher contacted the Fire Protection District and stated that an ambulance was needed for an allergic reaction. While the ambulance was en route, the 9-1-1 dispatcher contacted the paramedic defendants and advised them that decedent’s throat was closing and that she was having a hard time breathing. According to the complaint, prior to arriving at the scene, defendants¹ knew that decedent was “in a life threatening situation due to an allergic reaction to walnuts.” At approximately 9:31 p.m. the ambulance arrived at decedent’s location.

Plaintiff alleges that defendants knew, immediately upon their arrival at the scene, that decedent was having difficulty breathing and had hives on her face and neck. Defendants further knew that decedent was in an “extreme, life-threatening situation” which if not immediately treated properly would lead to her death. The complaint states that “the Defendants knew at the time of their arrival, and for a period of time of at least six (6) minutes thereafter, that Plaintiff s Decedent’s vital signs were stable and exhibited respiratory distress without anaphylactic shock.” While this allegation is strangely worded, its import does not seem to be that defendants actually knew “at the time of their arrival” that decedent’s vital signs were stable. Rather, the more reasonable reading of plaintiffs allegation is that based on readings that defendants completed as of six minutes after their arrival on the scene, defendants concluded that decedent’s vital signs were stable both then and “at the time of their arrival.” The next allegation further supports reading the complaint as alleging that defendants completed their check of decedent’s vital signs six minutes after their arrival at the scene: “That the Defendant knew that as of six (6) minutes after arriving at the scene that Plaintiff [sic] Decedent’s vital signs were as follows: Blood Pressure — 120/100; Pulse — 118; Respiratory rate — 32; Pupils — pearl; and Skin — Hot/dry.”

The complaint further alleges that defendants knew that decedent’s condition was getting progressively worse and that there was an extremely limited time to provide the proper emergency medical treatment in order to prevent anaphylactic shock. Plaintiff alleges that decedent’s life could have been saved upon defendants’ arrival because her airway was not completely closed and she was conscious, alert, and had stable vital signs. Further, decedent’s situation required emergency medical procedures including assuring that a patent airway existed and administering subcutaneous epinephrine, intramuscular Benadryl, and albuterol. Based on defendants’ training and applicable standard operating procedures, epinephrine and “albuterol via nebulizer” should both have been administered within the first 60 seconds after defendants’ arrival. Further, Benadryl should have been administered after the epinephrine. A separate allegation states that epinephrine immediately should have been administered subcutaneously. Defendants failed to administer epinephrine subcutaneously, albuterol via nebulizer, or Benadryl intramuscularly. Decedent’s airway did not close for at least five minutes after the arrival of defendants. Defendants administered epinephrine and Benadryl intravenously only after decedent had gone into anaphylactic shock. Defendants administered the epinephrine at least seven minutes after their arrival on the scene. Defendants administered the Benadryl at least eight minutes after their arrival on the scene. Defendants did not administer albuterol via nebulizer. Plaintiff alleges that the delay in administering epinephrine and Benadryl and the failure to administer albuterol was “a violation of all applicable emergency medical standards of care and/or standard operating procedures and training” and was “indicative of an utter disregard of those standards and an utter indifference for the life of [decedent].” Plaintiff further alleges that there was no medically justifiable reason for not administering this treatment. Defendants knew that immediate administration of epinephrine, albuterol, and Benadryl was required to prevent decedent from dying. The delay in administering epinephrine and Benadryl and the failure to administer albuterol caused decedent to go into anaphylactic shock and cardiac arrest and was “tantamount to a refusal to render emergency treatment.” Defendants’ behavior “evidences a complete indifference and utter disregard for the health and life of decedent.” Finally, plaintiff alleges that the failure to receive proper medical services resulted in decedent’s death. Decedent died on March 13, 2001.

On November 20, 2002, the trial court granted defendants’ motion to dismiss plaintiffs amended complaint without prejudice. The court found that plaintiff had not sufficiently pleaded willful and wanton conduct because key allegations in his complaint were mere conclusions of law and fact that were not supported by well-pleaded facts. The court emphasized that, despite the fact that plaintiff was tendered the relevant standard operating procedures, plaintiff’s allegation that defendants violated standard operating procedures does not specify which standard operating procedures were violated. Rather than file a second amended complaint, plaintiff moved the court to make its dismissal with prejudice so that he could appeal it. The court granted that motion, and plaintiff timely filed a notice of appeal. We review de novo the trial court’s dismissal of plaintiff’s complaint. Board of Directors of Bloomfield Club Recreation Ass’n v. The Hoffman Group, Inc., 186 Ill. 2d 419, 424 (1999).

On appeal plaintiff argues that his complaint sufficiently pleaded willful and wanton conduct. Section 3.150 of the EMS Act provides that persons or entities covered by the EMS Act who provide medical services in good faith will be immune from civil liability unless they are guilty of willful and wanton misconduct:

“Any person, agency or governmental body certified, licensed or authorized pursuant to this Act or rules thereunder, who in good faith provides emergency or non-emergency medical services during a Department approved training course, in the normal course of conducting their duties, or in an emergency, shall not be civilly liable as a result of their acts or omissions in providing such services unless such acts or omissions, including the bypassing of nearby hospitals or medical facilities in accordance with protocols developed pursuant to this Act, constitute willful and wanton misconduct.” 210 ILCS 50/3.150 (West 2002).

The parties agree that the limited immunity provided for in section 3.150 applies to defendants but disagree as to whether plaintiff has properly pleaded willful and wanton misconduct. We must determine whether the amended complaint alleges sufficient facts to bring plaintiffs claim within the scope of a legally recognized cause of action. Adkins v. Sarah Bush Lincoln Health Center, 129 Ill. 2d 497, 518 (1989). A complaint should not be dismissed unless, when viewing the allegations in the light most favorable to the plaintiff, it clearly appears that the plaintiff would not be entitled to relief under any set of facts. Board of Directors of Bloomfield Club Recreation Ass’n v. The Hoffman Group, Inc., 186 Ill. 2d 419, 424 (1999).

In Illinois there are two varieties of willful and wanton conduct, intentional and reckless. Poole v. City of Rolling Meadows, 167 Ill. 2d 41, 48 (1995). These two types of willful and wanton conduct are distinguished by the actor’s mental state. Intentional willful and wanton conduct is committed with “actual” or “deliberate” intent to harm. Illinois Pattern Jury Instructions, Civil, No. 14.01 (1995). By contrast, reckless willful and wanton conduct falls in between actual intent and mere negligence. Poole, 167 Ill. 2d at 47. Although reckless willful and wanton conduct is not committed intentionally, it is nonetheless, at least in theory, determined based on the actor’s “real or supposed state of mind.” W. Keeton, Prosser & Keeton on Torts § 34, at 212 (5th ed. 1984). Specifically, both the legislature and the supreme court have defined reckless willful and wanton conduct as conduct committed with “utter indifference” to or “conscious disregard” for the safety of others. 745 ILCS 10/1 — 210 (West 2002); Pfister v. Shusta, 167 Ill. 2d 417, 421 (1995). The supreme court has also described the required mental state as a “reckless disregard” for the safety of others. American National Bank & Trust Co. v. City of Chicago, 192 Ill. 2d 274, 285 (2000). Further, “[i]ll will is not a necessary element of a wanton act [i.e., reckless willful and wanton conduct]. To constitute an act wanton, the party doing the act or failing 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.” Bartolucci v. Falleti, 382 Ill. 168, 174 (1943). It is reckless willful and wanton conduct that is at issue in this case.

To plead a sufficient cause of action in either willful and wanton conduct or negligence, the plaintiff must allege the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach. Benhart v. Rockford Park District, 218 Ill. App. 3d 554, 557 (1991). However, unlike negligence, in order to sufficiently plead willful and wanton conduct, a plaintiff must also allege “either a deliberate intention to harm or an utter indifference to or conscious disregard for the welfare of the plaintiff.” Adkins, 129 Ill. 2d at 518.

An actor’s “utter indifference” or “conscious disregard” for the safety of others may be inferred from the outrageous nature of the conduct committed. See, e.g., Doe v. Calumet City, 161 Ill. 2d 374, 391 (1994). The supreme court has 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.” ’ [Citations.]” American National Bank, 192 Ill. 2d at 285. The second is “ ‘ “a failure to discover [a] danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.” ’ [Citations.]” American National Bank, 192 Ill. 2d at 285.

Whether willful and wanton conduct has been committed in any given case requires close scrutiny of the facts as disclosed by the evidence. O’Brien v. Township High School District 214, 83 Ill. 2d 462, 469 (1980), quoting Lynch v. Board of Education, 82 Ill. 2d 415, 430 (1980). The supreme court has described willful and wanton conduct as a “hybrid” between negligent and intentional acts. Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 275 (1994). Thus, “[u]nder 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.

Whether a defendant’s breach of a legal duty amounts to willful and wanton conduct is ordinarily a question of fact. Calloway v. Kinkelaar, 168 Ill. 2d 312, 326 (1995). That said, because fact pleading is required in Illinois, a plaintiff must allege “facts which, if proven, would show that the defendants acted or failed to act with an utter indifference or conscious disregard” for the plaintiffs safety. Adkins, 129 Ill. 2d at 519. For purposes of a motion to dismiss, well-pleaded facts are taken as true and all reasonable inferences from such facts are drawn in favor of the plaintiff. Calloway, 168 Ill. 2d at 325. However, we may consider only well-pleaded facts and not conclusions of law or fact. Brock v. Anderson Road Ass’n, 287 Ill. App. 3d 16, 26 (1997). After reviewing the amended complaint, we conclude that plaintiff sufficiently pleaded reckless willful and wanton misconduct.

Defendants fault plaintiff for not pleading any facts describing their conduct during the first seven minutes they arrived on the scene. Defendants do not cite any legal basis for their conclusion that a plaintiff must describe in detail all of the defendants’ conduct within the relevant time frame. It is not the rule in Illinois that a plaintiff must plead every conceivably relevant fact. Rather, a plaintiff must allege sufficient facts to bring his claim within the scope of a legally recognized cause of action. Adkins, 129 Ill. 2d at 518. In this case, plaintiffs allegations were sufficient to state a claim for willful and wanton conduct. Plaintiff alleged that, 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. In cases of life-threatening emergencies, seven or eight minutes can be a significant delay that could amount to “utter indifference” or “conscious disregard” for decedent’s safety.

As we have noted, while there is a distinction between negligent conduct and that which is willful and wanton, the distinction is not necessarily a great one. There may be a reasonable explanation for defendants’ conduct in this case, but it is not proper to dismiss a case on the basis of what probably happened (see Yuretich v. Sole, 259 Ill. App. 3d 311, 314 (1994)). The court in Yuretich stated that, “where merit is dependent upon the facts, a motion for summary judgment and not a motion to dismiss is the procedure which must be employed.” Yuretich, 259 Ill. App. 3d at 314. This is a case where merit is dependent upon the facts, not one where merit can be determined as a matter of law at the pleading stage. Taking plaintiffs well-pleaded facts as true, we cannot say that it clearly appears that plaintiff would not be entitled to relief under any set of facts. Plaintiffs 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 (see American National Bank, 192 Ill. 2d at 285).

We are similarly unpersuaded by defendants’ emphasis on the absence of allegations referring to the particular standard operating procedures that defendants allegedly violated. The amended complaint alleges that defendants’ failure to properly administer medications violated their training, accepted emergency medical care, and standard operating procedures. Defendants have cited no authority for the proposition that plaintiff was required to identify or attach as exhibits the specific standard operating procedures that were violated, and we decline to require plaintiff to do so. We wish to emphasize that we are not creating a loophole by which a plaintiff may avoid dismissal of an insufficiently pleaded complaint. Here, plaintiff specified the ways in which defendants violated the standard operating procedures but did not identify the procedures themselves. We believe this is sufficient. If defendants believe that there is no issue of material fact as to whether they complied with the standard operating procedures, they should move for summary judgment. Furthermore, violation of the standard operating procedures was not the sole basis of the amended complaint. Plaintiff also alleged that defendants violated their training and accepted emergency care. Thus, even if plaintiff were required to point to the specific procedures that defendants violated, his failure to do so would not be a proper basis for dismissing the entire complaint.

For the foregoing reasons, we conclude that plaintiff sufficiently pleaded willful and wanton misconduct by defendants. We reverse the trial court’s dismissal of plaintiffs amended complaint and remand for further proceedings.

Reversed and remanded.

GILLERAN JOHNSON, J, concurs.

1 Plaintiff uses the term “defendants” in his complaint but, in context, often appears to be referring only to the paramedic defendants as opposed to the Fire Protection District, which is also a defendant. We note this ambiguity but, nonetheless, use plaintiffs terminology.