Vilardo v. Barrington Community School District 220
406 Ill. App. 3d 713
| Ill. App. Ct. | 2010Background
- Vilardo sued Barrington Community School District 220 for negligence and willful and wanton conduct after being struck by a ball passing through a hole in a pitcher's screen at Barrington High School.
- Plaintiff sat behind the L screen and pitched to his son; the ball allegedly passed through a hole, injuring him.
- The trial court dismissed the negligence count with prejudice under 2-619(a)(9) based on Section 3-106 immunity and dismissed the willful-and-wanton count without prejudice under 2-615; amended complaint narrowed to willful and wanton conduct.
- Defendant moved for summary judgment on the amended willful-and-wanton complaint; plaintiff relied on discovery to show notice of the defect.
- The trial court granted summary judgment on the willful-and-wanton count; the appellate court affirmed, holding the negligence claim forfeited and the willful-and-wanton claim properly resolved in defendant's favor.
- Key legal issues involve Foxcroft forfeiture, the scope of Section 3-106 immunity, and whether the record shows conscious disregard to create a triable willful-and-wanton claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Vilardo forfeit the negligence claim on appeal? | Vilardo preserved the claim by amended pleading; dismissal with prejudice barred repleading. | Foxcroft controls; the amended complaint abandoned the prior count; no preservation. | Forfeited; negligence claim deemed abandoned. |
| Does Section 3-106 immunize the district from negligence claim arising from a recreational facility? | 3-106 does not immunize for unsafe equipment; Gerrity shows duty to provide safe equipment survives. | 3-106 immunizes liability for conditions of public property used recreationally; batting cage and screen are a condition. | Immunized; negligence claim dismissed. |
| Was summary judgment proper on the willful-and-wanton conduct claim? | Defendant acted with conscious disregard by not addressing a known defect. | No evidence of knowledge of a defect; not willful and wanton as a matter of law. | Granted; no genuine issue of material fact. |
Key Cases Cited
- Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp., 96 Ill.2d 150 (Ill. 1983) (amendment-abandonment rule; preserved issues require explicit incorporation)
- Bowman v. County of Lake, 29 Ill.2d 268 (Ill. 1963) (prior pleading abandonment clarified; not controlling here but cited for policy)
- Childs v. Pinnacle Health Care, LLC, 399 Ill.App.3d 167 (Ill.App.3d 2010) (amendment preserves or forfeits prior counts; referenced for Foxcroft rule)
- McCuen v. Peoria Park District, 163 Ill.2d 125 (Ill. 1994) (definition of 'condition' under 3-106; public-property immunity scope)
- Sylvester v. Chicago Park District, 179 Ill.2d 500 (Ill. 1997) (property facilities' role in recreational use; 3-106 applicability)
- Arteman v. Clinton Community Unit School District No. 15, 198 Ill.2d 475 (Ill. 2002) (independent operation of common-law duty and statutory immunity)