Now You See It – Now You Don't: The Supreme Court Reverses Course On Its Interpretation of Willful and Wanton Conduct

By Michael W. Tootooian

      On February 16, 2007, the Supreme Court reversed itself when it issued its opinion in Murray v Chicago Youth Center, 224 Ill.2d 213, 864 N.E.2d 176, 309 Ill.Dec. 310 (2007). You would never know by reading this opinion that just seven months earlier the Supreme Court had reached a different result – one that can no longer be found. (This previous decision was Murray v Chicago Youth Center, - - - N.E.2d - - - -, 2006 WL 1822656 (Ill.), referred to herein as Murray I for the reader’s convenience).1 

      The Murray case involved a serious injury to the plaintiff-minor on December 14, 1992, while using a mini trampoline. The defendants were various governmental entities. They raised various immunities under the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101 et. seq. (the Tort Immunity Act or Act), which included the discretionary immunity, 10/2-201, and the supervisory immunity, 10/3-108. At this time, neither provision contained a willful and wanton exception. The plaintiffs argued that the absolute immunities contained in those provisions, were supplanted by the immunity set forth in 10/3-109 dealing with hazardous recreational activities, which only provided immunity for negligent conduct. 

      I gave a presentation at the January, 2007, CBA Tort Litigation Committee Meeting discussing the Tort Immunity Act and the willful and wanton exception contained in some of the Act’s provisions. At the time of that presentation, the Supreme Court had issued its decision in Murray v Chicago Youth Center, - - - N.E.2d - - - -, 2006 WL 1822656 (Ill.), (Murray I) on July 5, 2006. This opinion has been pulled and is not reported - it no longer exists - literally. 

      The Murray I Decision  

      The Murray I opinion affirmed both the trial and appellate court which had granted and affirmed summary judgment in favor of the governmental defendants. In doing so this Supreme Court held that the statutory definition of willful and wanton conduct contained in the Tort Immunity Act (10/1-210) was different from the common law definition fashioned by the courts. This definition required a plaintiff to plead and prove a higher degree of misconduct for any tort claim involving a public entity or public employee, which would include overcoming any immunity in the Act which had an exception for willful and wanton conduct.  

      The willful and wanton exception in Murray was contained in §10/3-109(c) (2) of the Act which deals with various hazardous activities such as trampolining. This was the activity the plaintiff was engaged in at the time of his injury.  

      This Supreme Court also held that it was appropriate under the facts presented for the court to decide, as a matter of law, that no genuine issue of material existed as to whether any of the defendants’ acts or omissions amounted to willful and wanton misconduct. This Supreme Court affirmed such a finding by the trial and appellate courts after conducting its own de novo review. Morris v Margulis, 197 Ill.2d 28, 754 N.E.2d 314 (2001).With respect to the issue of summary judgment, the Murray I court held that while the determination of willful and wanton conduct is usually a jury question, the “court must decide, in the first instance, whether the undisputed facts are sufficient, as a matter of law, to create a jury question concerning the willful and wanton nature of the alleged conduct.”  

      The court was espousing essentially a gatekeeper role for the courts when ruling on motions for summary judgment, especially when it involved willful and wanton conduct. In carrying out this role, the court looked to the definition of the term “willful and wanton” in the Act. (10/1-210). The court relied on its decision in Burke v 12 Rothschild’s Liquor Mart, Inc., 148 Ill.2d 429, 449, 593 N.E.2d 522 (1992) that willful and wanton conduct “connotes quasi-intentional conduct” which “requires a conscious choice of a course of action, either with the knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man.” The Supreme Court agreed with the appellate court that the allegations in the plaintiffs’ complaint [and the evidence] did not approach the degree of blameworthiness necessary to maintain an action for willful and wanton behavior.” Murray v Chicago Youth Center, 352 Ill.App.3d at 106. This Supreme Court concluded that the allegations and evidence did not bring this case within either of the two exceptions found in §10/3-109(c) of the Act, one of which was for willful and wanton conduct. 

      The Murray II Decision 

      The Murray decision issued by the Supreme Court in February, 2007 (Murray II) does not even acknowledge the prior opinion. What makes the Murray II decision more unusual is that the Murray I decision, issued on July 5, 2006, was decided 4 to 3. The dissent opinion was written by Justice Kilbride, who now wrote the opinion in Murray II, which was now a 7-0 decision. Three of the four justices voting with the majority opinion in Murray I had now reversed themselves - Justices Freeman, Fitzgerald and Garman. The fourth justice in Murray I was Justice McMorrow. She wrote the majority opinion in Murray I but retired afterwards and took no part in the Murray II decision. 

      As in Murray I, the Supreme Court in Murray II held that the absolute immunities contained in sections 10/2-201 and 10/3-108 of the Act were modified by the application of the qualified immunity in 10/3-109 dealing with hazardous recreational activities. (At the time of this occurrence, 10/3-108 was an absolute immunity. It was amended in 1998 to contain a willful and wanton exception).  

      Both Murray I and Murray II overruled the Appellate Court’s reasoning in Johnson v. Decatur Park District, 301 Ill.App.3d 798, 704 N.E.2d 416 (Fourth District, 1998), which held that the qualified immunity contained in 3-109 did not create an exception to the absolute immunity granted by sections 10/2-201 and 10/3-108(a). The Supreme Court noted that the appellate court in Johnson did not give sufficient consideration to the “conditional language” contained in both 10/2-201 and 10/3-108(a), which limited their application to, “[e]xcept as otherwise provided by Statute [or by] this Act.” The Supreme Court determined, as it had in Murray I, that the defendants’ immunity from liability is subject to the exceptions found in section 3-109(c) of the Act.  
 

      The court then addressed the applicability of the two exceptions found in section 3-109(c) of the Act to determine if liability could be imposed upon the defendants. One of those exceptions required that the plaintiff establish that the defendants’ acts or omissions were willful and wanton.  

      The Supreme Court in Murray II found that the statutory definition of willful and wanton conduct set forth in section 10/1-210 of the Tort Immunity Act applies to every section of the Act containing the term willful and wanton conduct and more importantly that this legislative definition was consistent with the court’s longstanding common law precedents on defining willful and wanton conduct, i.e. that the legislative definition did not provide a different definition of willful and wanton conduct for local public entities and their employees. This definition was merely a codification of the common law. The court further stated that the term “willful and wanton” includes a range of mental states from “actual or deliberate intent to cause harm, to utter indifference for the safety or property of others, to conscious disregard for the safety of others or their property”. Murray, 224 Ill.2d at 235. These were presented as three types of willful and wanton conduct, in descending order of egregiousness. 

      The Supreme Court now rejected the defendants’ arguments that the 1986 amendments to the Tort Immunity Act, which included a statutory definition of willful and wanton conduct, had narrowed the definition to only “deliberate or conscious conduct disregarding the safety of others” and that the common law definition of willful and wanton conduct does not apply in Tort Immunity Act cases. Murray, 224 Ill.2d at 236. The court discussed its precedent defining willful and wanton conduct starting with Schneiderman v. Interstate Transit Lines, Inc. 394 Ill. 569, 69 N.E.2d 293 (1946), when the court explained willful and wanton conduct as follows:  

“A wilful and wanton injury must have been intentional or the act must have been committed 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. The question whether a personal injury has been inflicted by wilful or wanton conduct is a question of fact to be determined by the jury”. Schneiderman, 394 Ill. at 583. 

      The court then discussed its next opinion dealing with willful and wanton conduct. In Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill.2d 429, 593 N.E.2d 522 (1992), the court discussed willful and wanton conduct with respect to whether the plaintiff’s alleged contributory negligence could be compared with the egregious willful and wanton conduct of police officers, which would entitle the municipality to a reduction of damages. The Burke court noted that there are various degrees of willful and wanton conduct, varying from intentional harm for which punitive damages could be awarded to a conscious and deliberate disregard for the rights or safety of others, which the court termed “quasi–intentional,” adopting the view expressed in the Restatement (Second) of Torts § 500 (1965), that there is a qualitative difference between negligence and willful and wanton conduct.” Burke, 148 Ill.2d at 449-450. The Murray II court noted that in Burke it had determined that “willful and wanton conduct is found where an act was done with actual intention or with a conscious disregard or indifference for the consequences when the known safety of other persons was involved.” (Emphasis in original.) Murray, 224 Ill.2d at 238. This meant that the plaintiff’s negligence in Burke could not be compared to the defendant’s willful and wanton conduct for the purposes of comparative negligence. Burke, 148 Ill.2d at 451-452.  
 

      The unanimous decision in Murray II further states that it did not imply by its decision in Burke that it was holding that a more restrictive definition of willful and wanton conduct applied, instead of the common law definition, when tort immunity defenses were raised. The Burke court simply held that a defendant’s liability for willful and wanton conduct could not be reduced by a plaintiff’s contributory negligence.  

      In Ziarko v. Soo Line R.R. Company, 161 Ill.2d 267, 641 N.E.2d 402 (1994), the issue was whether a joint tortfeasor found guilty of willful and wanton conduct could seek contribution against another joint tortfeasor found guilty for only negligent conduct. The Ziarko court modified what was interpreted as a strict rule in Burke that prevented any comparison between a party’s willful and wanton conduct and another party’s negligence, by holding that with respect to contribution principles, a defendant’s negligence could be compared with another defendant’s willful and wanton conduct as long as that willful and wanton conduct did not rise to the level of intentional misconduct.  

      In Poole v. City of Rolling Meadows, 167 Ill. 2d 41, 656 N.E. 2d 768 (1995), the Supreme Court expressly adhered to the Ziarko analysis in the context of now comparing a plaintiff’s contributory fault with a defendant’s willful and wanton conduct. The Poole court found that the trial court erred in not allowing a reduction in damages for the plaintiff’s contributory negligence since the jury had not characterized the defendant’s misconduct as either intentional or reckless. Poole, 167 Ill.2d at 49-50. 

      The Murray II court noted that when the General Assembly added the statutory definition of willful and wanton conduct to the Tort Immunity Act (10/1-210), it copied the exact language of the jury instruction defining willful and wanton conduct. (Illinois Pattern Jury Instructions, Civil, No. 14.01 (3d ed. 1993) (IPI Civil 3d No. 14.01)). Murray, 224 Ill.2d at 241.The court further noted that it has consistently applied the definition of willful and wanton conduct set forth in this jury instruction to all cases, whether it was in the context of a statutory immunity provision or a common law application, finding that the definition of willful and wanton conduct in the Tort Immunity Act is a codification of existing law. Nothing in the Tort Immunity Act indicated that the General Assembly intended that the definition of “willful and wanton” conduct differed from its well-established common law meaning.  

      The Supreme Court specifically rejected the defendant’s argument that the 1986 amendments to the Tort Immunity Act imposed a heightened willful and wanton standard and held with the 1986 amendments to the Tort Immunity Act did not change the definition as previously explained and interpreted by the Supreme Court.  

      The court did not express any opinion on the 1998 amendment to this statutory definition, which was not in effect at the time of the plaintiff’s incident. The defendants argued that the 1998 amendment to the Tort Immunity Act indicated that the General Assembly intended to replace the common law definition of willful and wanton conduct with a heightened definition akin to intentional conduct. The change made in 1998 added the phrase “This definition shall apply in any case where a ‘willful and wanton’ exception is incorporated into any immunity under this Act.”  

      With respect to whether the lower courts erred in finding that, as a matter of law, the defendants’ conduct was not willful and wanton, the Supreme Court stated that this is generally a question of fact for the jury. In some circumstances this can be decided as a matter of law as to whether the plaintiff’s complaint alleges sufficient facts of a defendant’s willful and wanton conduct to create a jury question. Murray, 224 Ill.2d at 245.The court stressed that it has a duty to construe the record strictly against the movant and liberally in favor of the non-moving party and that a review of the summary judgment pleadings in this case establish a triable issue of material fact as to whether the defendants are guilty of willful and wanton conduct. Murray, 224 Ill.2d at 246. The court ignored its earlier pronouncement in Murray I regarding the court’s gatekeeper role when ruling on motions for summary judgment, which by implication can be interpreted as a rejection of such a role.  

      The Impact of the Murray II Decision on Willful and Wanton Litigation 

      The first and foremost impact is that the statutory definition of willful and wanton conduct contained in the Tort Immunity Act is a codification of the common law definition of willful and wanton conduct. Causes of action premised on willful and wanton conduct will be interpreted the same regardless of who is the defendant. Public entities and their employees will be treated the same as private defendants.  

      Even though the Supreme Court declined to express any opinion as to whether the 1998 amendments to the statutory definition of willful and wanton conduct in the Tort Immunity Act altered its definition, a reading of this language would indicate no substantive change was intended. Unless legislative comments can be found which indicate such a change, it appears highly unlikely that the courts will find that such a change has occurred.

      Another is that motions for summary judgment are to be construed strictly against the movant. This has been repeated numerous times in other court opinions but was expressed here as a repudiation, by implication, of the comments in Murray I that “a court must decide, in the first instance, whether the undisputed facts are sufficient, as a matter of law, to create a jury question concerning the willful and wanton nature of the alleged conduct” which seemed to imply that the court take a more active or gatekeeper role in ruling on such motions.  

      More importantly, special interrogatories are absolutely necessary in such cases. Murray II’s reference to the Ziarko and Poole decisions now make it clear that in order to determine if a defendant’s willful and wanton can be compared to a plaintiff’s contributory fault and to another defendant for contribution, a special interrogatory will need to be submitted to determine what type/level of willful and wanton conduct the defendant is guilty of. If it is intentional the defendant will receive no reduction in the plaintiff’s damages or contribution from another defendant. If it is a “conscious disregard for the safety of others or their property”, a reduction/contribution should be allowed. Unclear is whether the middle category referred to by the court, “utter indifference for the safety or property of others”, would allow for a reduction and/or contribution. Murray, 224 Ill.2d at 235. More importantly jury instructions will need to be fashioned describing these levels of willful and wanton conduct, which will be hard to do in a way that is understandable to a lay person. Furthermore, verdict forms will need to be modified to account for these varying degrees of willful and wanton conduct.