Mr. PRESIDING JUSTICE MILLS
delivered the opinion of the court:
The principle of liberal pleading simply cannot be stretched to encompass a paucity and dearth of allegations.
There must be a bottom line on even barely adequate pleading, and we have reached it in this case.
The minor plaintiff brought an action to recover damages for an injury suffered while using playground equipment on school grounds in the control of the defendant school district. Plaintiffs second amended complaint was dismissed with prejudice for failure to state a cause of action.
We affirm.
On October 11, 1978, plaintiff filed a complaint for personal injury resulting from defendant’s negligence, asserting that the plaintiff was injured while using playground equipment controlled by the defendant. Defendant’s motion to dismiss was allowed and on June 6,1979, plaintiff filed an amended complaint alleging wilful and wanton misconduct on the part of the defendant. Following a hearing, plaintiff was allowed to file a second amended complaint. Paragraph 8 of that complaint stated:
“Defendant, by its agents and employees, was then and there guilty of one or more of the following acts of wilful and wanton misconduct:
a. Failed to keep its playground equipment in proper repair, specifically leaving nails protruding dangerously from said equipment, when it knew or should have known of the existence of said protruding nails.
b. Maintained its playground and playground equipment in a condition it knew or should have known was unsafe and dangerous.
c. Failed to notify or warn Plaintiff and others of the dangerous and unsafe playground equipment, even though it knew or should have known such equipment was dangerously unsafe.”
Another motion to dismiss was filed by the defendant and on January 15, 1980, the trial court dismissed the second complaint with prejudice.
Plaintiff initially argues that this cáse is controlled by the decision in Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323, and that he must merely plead and prove negligence on the part of the defendant. Plaintiff argues that the allegations of wilful and wanton conduct in his amended complaint can be ignored as surplusage, and the complaint can be read as stating .a cause of action in negligence.
Defendant argues that even under the liberal pleading rules, the basic purpose of pleading is notice to the other party, and it is clear from any reading of the second amended complaint that the action was based on wilful and wanton misconduct and not negligence. Defendant thus reasons that the sole question on appeal is whether the allegations in the plaintiff’s second amended complaint give rise to any inference of wilful and wanton activity.
There are certain general rules of construction to be applied when a complaint is challenged for failure to state a cause of action. The essential test of the sufficiency of the complaint is whether it reasonably informs the defendant of a valid claim under a general class of cases of which the court has jurisdiction. (Kramer v. McDonald’s System, Inc. (1978), 61 Ill. App. 3d 947, 378 N.E.2d 522, aff’d on other grounds (1979), 77 Ill. 2d 323, 396 N.E.2d 504.) In determining the sufficiency of the complaint, the court must accept as true all well pleaded facts and reasonable inferences drawn therefrom. (Morse v. Nelson (1977), 48 Ill. App. 3d 895, 363 N.E.2d 167.) No pleading is bad in substance where it reasonably informs the opposite party of the nature of the claim. (Ill. Rev. Stat. 1979, ch. 110, par. 42(2).) Finally, a complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under pleadings which would entitle plaintiff to relief. Cain v. American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 325 N.E.2d 799.
The second amended complaint in this case specified certain acts which the plaintiff alleged constituted wilful and wanton misconduct. Nowhere in the complaint does the plaintiff assert any acts which constitute negligence or that the defendant was in any way negligent. The fact that the original complaint was grounded in negligence and the two subsequent complaints asserted wilful and wanton misconduct tends to indicate that the plaintiffs had switched theories. In this situation, the complaint did not adequately apprise the defendant that plaintiff was proceeding on a theory of negligence and is therefore insufficient to state a cause of action in negligence.
Plaintiff also argues that the allegations contained in the second amended complaint are sufficient to plead a cause of action on a theory of wilful and wanton misconduct. The dispute centers around the “knew or should have known” language under Paragraph 8 of the complaint. Defendant argues that the “should have known” test is the standard for negligence and since the allegations of Paragraph 8 would allow a jury to hold defendant liable for mere negligent conduct, it is insufficient to state a cause of action for wilful and wanton misconduct.
Plaintiff cites a number of cases where courts have held that a person is guilty of wilful or wanton misconduct when he commits an act under circumstances exhibiting a reckless disregard for the safety of others, such as a failure (after knowledge of impending danger) to exercise ordinary care to prevent it, or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care. See, e.g., Marquart v. Toledo, Peoria & Western R.R. Co. (1975), 30 Ill. App. 3d 431, 333 N.E.2d 558; Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 69 N.E.2d 293.
But we agree with the defendant and the trial court. We hold that the complaint was insufficient to state a cause of action based on wilful and wanton misconduct because it fails to assert either knowledge or recklessness on the part of the defendant. (See Turner v. Commonwealth Edison Co. (1976), 35 Ill. App. 3d 331, 341 N.E.2d 488.) As the court in Rowe v. Frazer (1967), 83 Ill. App. 2d 367, 377, 227 N.E.2d 781, 786, stated:
“A wanton act involves a conscious indifference to a known danger. It is based on the concept that under the known or plainly observable circumstances the doing or failing to do something will naturally and probably result in injury to another, and the defendant must have been aware of that situation and ignored it. [Citations.]”
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. PRESIDING JUSTICE MILLS
delivered the opinion of the court:
The principle of liberal pleading simply cannot be stretched to encompass a paucity and dearth of allegations.
There must be a bottom line on even barely adequate pleading, and we have reached it in this case.
The minor plaintiff brought an action to recover damages for an injury suffered while using playground equipment on school grounds in the control of the defendant school district. Plaintiffs second amended complaint was dismissed with prejudice for failure to state a cause of action.
We affirm.
On October 11, 1978, plaintiff filed a complaint for personal injury resulting from defendant’s negligence, asserting that the plaintiff was injured while using playground equipment controlled by the defendant. Defendant’s motion to dismiss was allowed and on June 6,1979, plaintiff filed an amended complaint alleging wilful and wanton misconduct on the part of the defendant. Following a hearing, plaintiff was allowed to file a second amended complaint. Paragraph 8 of that complaint stated:
“Defendant, by its agents and employees, was then and there guilty of one or more of the following acts of wilful and wanton misconduct:
a. Failed to keep its playground equipment in proper repair, specifically leaving nails protruding dangerously from said equipment, when it knew or should have known of the existence of said protruding nails.
b. Maintained its playground and playground equipment in a condition it knew or should have known was unsafe and dangerous.
c. Failed to notify or warn Plaintiff and others of the dangerous and unsafe playground equipment, even though it knew or should have known such equipment was dangerously unsafe.”
Another motion to dismiss was filed by the defendant and on January 15, 1980, the trial court dismissed the second complaint with prejudice.
Plaintiff initially argues that this cáse is controlled by the decision in Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323, and that he must merely plead and prove negligence on the part of the defendant. Plaintiff argues that the allegations of wilful and wanton conduct in his amended complaint can be ignored as surplusage, and the complaint can be read as stating .a cause of action in negligence.
Defendant argues that even under the liberal pleading rules, the basic purpose of pleading is notice to the other party, and it is clear from any reading of the second amended complaint that the action was based on wilful and wanton misconduct and not negligence. Defendant thus reasons that the sole question on appeal is whether the allegations in the plaintiff’s second amended complaint give rise to any inference of wilful and wanton activity.
There are certain general rules of construction to be applied when a complaint is challenged for failure to state a cause of action. The essential test of the sufficiency of the complaint is whether it reasonably informs the defendant of a valid claim under a general class of cases of which the court has jurisdiction. (Kramer v. McDonald’s System, Inc. (1978), 61 Ill. App. 3d 947, 378 N.E.2d 522, aff’d on other grounds (1979), 77 Ill. 2d 323, 396 N.E.2d 504.) In determining the sufficiency of the complaint, the court must accept as true all well pleaded facts and reasonable inferences drawn therefrom. (Morse v. Nelson (1977), 48 Ill. App. 3d 895, 363 N.E.2d 167.) No pleading is bad in substance where it reasonably informs the opposite party of the nature of the claim. (Ill. Rev. Stat. 1979, ch. 110, par. 42(2).) Finally, a complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under pleadings which would entitle plaintiff to relief. Cain v. American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 325 N.E.2d 799.
The second amended complaint in this case specified certain acts which the plaintiff alleged constituted wilful and wanton misconduct. Nowhere in the complaint does the plaintiff assert any acts which constitute negligence or that the defendant was in any way negligent. The fact that the original complaint was grounded in negligence and the two subsequent complaints asserted wilful and wanton misconduct tends to indicate that the plaintiffs had switched theories. In this situation, the complaint did not adequately apprise the defendant that plaintiff was proceeding on a theory of negligence and is therefore insufficient to state a cause of action in negligence.
Plaintiff also argues that the allegations contained in the second amended complaint are sufficient to plead a cause of action on a theory of wilful and wanton misconduct. The dispute centers around the “knew or should have known” language under Paragraph 8 of the complaint. Defendant argues that the “should have known” test is the standard for negligence and since the allegations of Paragraph 8 would allow a jury to hold defendant liable for mere negligent conduct, it is insufficient to state a cause of action for wilful and wanton misconduct.
Plaintiff cites a number of cases where courts have held that a person is guilty of wilful or wanton misconduct when he commits an act under circumstances exhibiting a reckless disregard for the safety of others, such as a failure (after knowledge of impending danger) to exercise ordinary care to prevent it, or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care. See, e.g., Marquart v. Toledo, Peoria & Western R.R. Co. (1975), 30 Ill. App. 3d 431, 333 N.E.2d 558; Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 69 N.E.2d 293.
But we agree with the defendant and the trial court. We hold that the complaint was insufficient to state a cause of action based on wilful and wanton misconduct because it fails to assert either knowledge or recklessness on the part of the defendant. (See Turner v. Commonwealth Edison Co. (1976), 35 Ill. App. 3d 331, 341 N.E.2d 488.) As the court in Rowe v. Frazer (1967), 83 Ill. App. 2d 367, 377, 227 N.E.2d 781, 786, stated:
“A wanton act involves a conscious indifference to a known danger. It is based on the concept that under the known or plainly observable circumstances the doing or failing to do something will naturally and probably result in injury to another, and the defendant must have been aware of that situation and ignored it. [Citations.]”
Although this opinion speaks for itself, a few remarks are in order to prevent the reader from being misled by the dissent.
Initially, the dissent claims that a count which is “mislabeled” as wilful and wanton conduct will withstand a motion to dismiss if it states another good cause of action. One wonders how the dissent concludes that the complaint was “mislabeled.” Plaintiff makes no such allegation.
The dissent also utilizes quotations from the cases of Great Atlantic & Pacific Tea Co. v. La Salle National Bank (1979), 77 Ill. App. 3d 478, 395 N.E.2d 1193, and Rosenberg v. Packerland Packing Co. (1977), 55 Ill. App. 3d 959, 370 N.E.2d 1235, as setting forth “THE LAW.”
It is a curious rule that a pleading is sufficient to withstand a motion to dismiss if any good cause of action is stated, although not one intended by the plaintiff. This rule provides the heart and soul of the dissent. While the rule has been cited in a few cases, to our view it has never been stretched to the dimensions the dissent now suggests. The most interesting aspect of this rule is its origin. The authorities who, like the dissent, mistakenly cite the rule as “THE LAW,” uniformly cite to 2 Nichols, Illinois Civil Practice §1413 (Rev. ed. 1979), to support this proposition. But an examination of the most recent edition of Nichols reveals that it cites Rosenberg and Browning v. Heritage Insurance Co. (1975), 33 Ill. App. 3d 943, 338 N.E.2d 912, as support for this statement. Both Rosenberg and Browning, however, rely on the earlier edition of Nichols as support for this rule! The logical question is which came first, the chicken or the egg? Or, is it merely “bootstrapping?”
But aside from the suspect parentage of this rule, we question its validity. One wonders how a complaint which espouses a theory unintended by the plaintiff can be sufficient to place the defendant on notice of the nature of the claim? The logical extension of this rule is a complete abolition of the concept of pleading. The plaintiff merely approaches the bench with a story and the court identifies, or even creates, a theory of recovery. The dissent sadly misperceives the purpose of pleadings and the proper role of the judiciary in an adversarial system. If a plaintiff’s attorney does not even have a duty to properly present his claim to the court, what reason is there for the attorney to receive a fee?
One can also take issue with the quotations the dissent extracts from the Rosenberg and Great Atlantic cases. Just as the blind man is unable to perceive the elephant by touch, the selective extraction and interpretation of these cases by the dissent has created a whole new creature. For instance, the dissent fails to point out that the portion of the Rosenberg opinion upon which it relies was an appeal pursuant to Supreme Court Rule 308 (73 Ill. 2d R. 308), with the trial court posing a question of the law asking only under what circumstances may a principal be liable for the outrageous conduct of its agent where there is no contact. Since the trial court had denied the defendant’s motion to dismiss that count of the complaint, the sufficiency of the allegations was not even presented to the court. Likewise, in the Great Atlantic case, the court indicated that the complaint purported to state a cause of action and trespass. After noting that trespass requires a wrongful interference with the actual possessory interest in property, the court concluded that the complaint was sufficient to state a cause of action to enjoin interference with a lease-hold interest including easements appurtenant thereto. Both cases are clearly distinguishable from the instant appeal — both in substance and degree.
The dissent also quibbles with our Turner citation. We point out that the signal “see” is used where the cited authority constitutes the basic source material that supports the proposition; it is used instead of “no signal” when the proposition is not stated by the cited authority but falls from it. (Uniform System of Citation 6-7 (12th ed. 1976).) If one continues to read Turner beyond the point described by the dissent, the following is found:
“In order to constitute ‘wilful and wanton’ misconduct, the act or omission must be not only negligent, but exhibit a conscious disregard for the safety of others. [See Yelinich v. Capalongo, 38 Ill. App. 2d 199, 186 N.E.2d 777.]
* * *
While we agree with the plaintiff that the knowledge may be either actual or constructive, there must be a conscious disregard or indifference for the consequences when the known safety of others is involved. [Myers v. Krajefska, 8 Ill. 2d 322, 134 N.E.2d 277; Murphy v. Jewel Companies, Inc., 24 Ill. App. 3d 1, 320 N.E.2d 47.] As was observed in Ritter v. Ferenczi, 16 Ill. App. 3d 218, 305 N.E.2d 426, at 430,
‘ “Wilful and wanton conduct is carelessness, but carelessness is not wilful and wanton misconduct.” [Rowe v. Frazer, 83 Ill. App. 2d 367, 378-379, 227 N.E.2d 781, 786.]’ ” 35 Ill. App. 3d 331, 337-38, 341 N.E.2d 488, 493.
As a final point, we would be remiss if we did not point out that the dissent overlooks perhaps the most crucial factor in this case — the earlier complaint. Did the plaintiff appeal the earlier dismissal of the negligence complaint? No. Rather, the plaintiff decided to file another complaint which she denominated as “wilful and wanton” misconduct. We are now asked to disregard her words and express actions and go back to the first negligence complaint. We decline the invitation.
The trial court’s dismissal of plaintiff’s second amended complaint with prejudice was proper.
Affirmed.
WEBBER, J., concurs.