Marty Dolan, principal at Dolan Law, and his associate, Karen Munoz, represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in Chicago Lawyer magazine and her column appears regularly in the Chicago Daily Law Bulletin. This week’s blog is written by Karen Munoz
A schoolgirl in Leja v. Community Unit School District 300, 2012 IL App (2d) 120156 alleged that the warning label on a volleyball net crank was sufficient to put defendant on notice that the crank posed a risk of injury, and that instructing plaintiff to operate the crank bearing the warning label evidenced utter indifference or conscious disregard for plaintiff’s safety. The plaintiff’s appeal challenged the trial court’s dismissal of her case on the basis that the plaintiff did not allege sufficient facts to plead willful and wanton conduct under the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/3-106 (West 2008)). The plaintiff was operating the net crank when “the collar itself either broke loose or the crank itself snapped back, causing plaintiff to be struck in the face by the crank.” The crank was attached to a collar that was wrapped around a standard. Affixed to the collar was a warning label stating, “CAUTION DO NOT OVERTIGHTEN – MAY CAUSE INJURIES OR DAMAGE TO EQUIPMENT”
The plaintiff alleged that warning labels on volleyball net cranks were sufficient to put defendant on notice that the crank posed a risk of injury. The plaintiff concedes that the defendant is a local public entity immune from liability under §3-106 of the act. The court’s inquiry was limited to the non-intentional aspect of the act’s definition of willful and wanton conduct which is defined as whether defendant engaged in a “course of action which shows an utter indifference to or a conscious disregard for the safety of others or their property.” 745 ILCS 10/1-210 (West 2008).
The courts have interpreted the act’s definition of willful and wanton conduct to exist where a public entity knew of a dangerous condition or prior injuries caused by a dangerous condition yet took no action to correct the condition and where a public entity intentionally removed a safety feature despite the known danger of doing so. Generally, to be guilty of willful and wanton conduct, a defendant “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” Pomrehn v. Crete-Monee High School District Ill. App, 3d 331,335 (1981)
The court concluded that the plaintiff alleged no facts that would permit the inference that the defendant was conscious in instructing plaintiff to operate the volleyball crank would “naturally and probably result in injury” or “posed a high probability of serious physical harm.” The plaintiff would have to allege that the specified condition caused the plaintiff’s injury and that the defendant knew or should have known of the condition and of the danger and high risk of injury it posed to succeed. Furthermore, the defendant was not a supplier or a seller of the volleyball net equipment, but merely a consumer of it. Also, the plaintiff did not allege that the set screws were in fact not tightened, nor did she allege that defendant was aware of any such fact or of any danger so posed.