delivered the opinion of the court:
An “L” screen is a free-standing, L-shaped structure used in baseball batting practice to protect the pitcher. While behind the screen, the pitcher throws the ball through a cutout portion of the screen, and the screen shields the pitcher from balls hit toward him. Defendant, Barrington Community School District 220, operates a baseball field with batting cages and L screens at Barrington High School.
Plaintiff, Thomas J. Vilardo, took his son, Michael, to defendant’s baseball field to use a batting cage. Plaintiff sat on a bucket behind an L screen and pitched to Michael. Michael hit several balls to the screen, where they bounced harmlessly to the ground. However, one ball struck the screen, passed through the mesh, and struck plaintiff’s face, causing injury.
Plaintiff filed a two-count complaint, alleging claims of negligence and willful and wanton conduct based on defendant providing defective equipment. The trial court dismissed with prejudice the negligence claim pursuant to section 2 — 619(a)(9) of the Code of Civil Procedure (Code) (see 735 ILCS 5/2 — 619(a)(9) (West 2008)) on the ground that section 3 — 106 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3 — 106 (West 2008)) immunized defendant from liability. The count alleging willful and wanton conduct was dismissed without prejudice under section 2 — 615 (see 735 ILCS 5/2 — 615 (West 2008)).
Plaintiff filed an amended complaint alleging only willful and wanton conduct. The trial court granted defendant summary judgment on the amended complaint (see 735 ILCS 5/2 — 1005 (West 2008)).
Plaintiff appeals the dismissal of the negligence count and the summary judgment entered for defendant on the willful-and-wanton-conduct count. Defendant asserts that plaintiff forfeited review of the negligence claim by failing to replead it or otherwise incorporate it by reference in the amended complaint, but plaintiff responds that the dismissal with prejudice barred him from doing so. Defendant further argues that, even if plaintiff did not forfeit the negligence claim, the dismissal should be affirmed because the claim lacks merit. Defendant also contends that summary judgment was proper. We agree with defendant. We hold that (1) plaintiff procedurally defaulted any challenge to the dismissal of the negligence count, which in any event lacks merit; and (2) the trial court did not err in granting defendant summary judgment on the willful-and-wanton-conduct count. We affirm.
FACTS
On January 31, 2008, plaintiff filed a two-count complaint. Plaintiff alleged that, on June 25, 2007, defendant operated a batting cage in Barrington and owed plaintiff a duty to operate the premises safely, but had allowed the premises to become dangerous and knew of the dangerous condition. Specifically, plaintiff alleged that defendant (1) improperly operated, managed, maintained, and controlled the premises; (2) allowed and permitted a hole to be present in the net protecting the pitcher; (3) failed to make a reasonable inspection of the premises and the net when defendant knew or should have known that such an inspection was necessary to prevent plaintiffs injury; and (4) failed to warn plaintiff of the net’s dangerous condition when defendant knew or should have known that such a warning was necessary to prevent plaintiff’s injury. Plaintiff alleged that, as a direct proximate result of defendant’s conduct, plaintiff was struck and injured by a baseball. The two counts of the complaint were nearly identical except count I characterized defendant’s conduct as negligence and count II characterized defendant’s conduct as willful and wanton.
On April 22, 2008, defendant filed a combined motion to dismiss under section 2 — 619.1 of the Code. See 735 ILCS 5/2 — 619.1 (West 2008) (providing for combined motions seeking relief under sections 2— 615 and 2 — 619). Defendant argued that both counts should be dismissed under section 2 — 619 of the Code in that section 3 — 106 of the Act was affirmative matter defeating the claims. Immunity under the Act is affirmative matter properly raised in a section 2 — 619(a)(9) motion to dismiss. Arteman v. Clinton Community Unit School District No. 15,
Defendant alternatively argued that the willful-and-wanton-conduct count should be dismissed under section 2 — 615 for failing to state a claim. The trial court dismissed with prejudice the negligence count under section 2 — 619(a)(9), and the court dismissed without prejudice the willful-and-wanton-conduct count under section 2 — 615.
On August 18, 2008, plaintiff filed an amended complaint alleging that defendant engaged in willful and wanton conduct. Specifically, plaintiff asserted that defendant knew there was a hole in the protective screen, which created a dangerous cоndition for persons using the premises, and that defendant willfully and wantonly failed to address this dangerous condition. Defendant allegedly used the batting cage daily, knew of the hole in the screen, left the gate to the facility unlocked, and knew that the public used the batting cage and protective screen regularly. The amended complaint alleged that defendant committed the following willful and wanton acts and omissions: (1) improperly operated, managed, maintained, and controlled the premises; (2) allowed and permitted a hole to be present in the net protecting the pitcher; (3) failed to make a reasonable inspection of the premises and the net when defendant knew or should have known that suсh an inspection was necessary to prevent plaintiffs injury; (4) failed to warn plaintiff of the net’s dangerous condition when defendant knew or should have known that such a warning was necessary to prevent plaintiffs injury; and (5) failed to lock the gate to the facility. Plaintiff alleged that, as a direct proximate result of defendant’s willful and wanton conduct, plaintiff was struck and injured by a baseball.
Defendant moved for summary judgment, arguing that sections 3— 102 and 2 — 201 of the Act provided immunity from liability and that defendant did not proximately cause plaintiffs injury. Plaintiff testified in his deposition that he had used the batting cages at Barrington High School several times before the date of the injury. Plaintiff estimated that he had used the cages 50 times in three years. Plaintiff used the cages on evenings and weekends to help his son warm up before games. Plaintiff used the cages on the date of the injury to help his son warm up before a game that was to be held at a field nearby. Plaintiff testified that he had extensive experience using pitcher’s nets at defendant’s school and at other locations, and plaintiff had not experienced any problems with defendant’s nets before the injury.
Plaintiff testified that he began using a batting cage around 4 p.m. on the date of the incident. A summer baseball league game was being played at the time. Neither plaintiff nor his son inspected the screen before using it. Plaintiff stepped behind the screen and positioned himself so his entire body was behind it. Plaintiff sat on a bucket of balls. Plаintiff did not see any holes in the net, which was about 20 to 25 feet from the batter.
Plaintiff began pitching balls to his son. Plaintiff threw about 10 pitches, which he estimated to be 60 to 70 miles per hour. Plaintiffs son hit the balls, some of which struck the screen. The last pitch was hit straight back toward plaintiff and struck him in the left eye.
Coach Wisniewski testified that he was a teacher and baseball coach employed by defendant. Wisniewski testified that it is standard practice for coaches to inspect the pitcher’s nets before they are used. If he saw a hole or tear in a net, he would not allow the students to use the net, and the net would be moved to the side. Wisniewski denied seeing a baseball go through the net during his four-year employment by defendant. Wisniewski also dеnied seeing someone hit in the face by a baseball while using a pitcher’s net.
Wisniewski explained that players using the net had to wear helmets and stand behind the net, which was to be placed a safe distance from the batter. Players who noticed any problems with the net were instructed to advise the coach. Wisniewski also explained that the net is usually placed 50 to 60 feet from the batter. Barrington High School players in the summer baseball league used the batting cages and fields during the summer baseball season. The players use the batting cages before and during league games. Wisniewski coached during the 2007 summer baseball season. The players would have used the nets to warm up for the game that was being played when рlaintiff was injured. There were no problems with the nets used by the players on the date of the incident.
Wisniewski testified that he did not witness plaintiffs injury, but parents at the game told him about it. Wisniewski believed that plaintiff was hit by the ball because he had not positioned himself completely behind the net. Wisniewski looked at the net after the incident and saw no hole or tear in the net.
Coach Hawrysko testified that he had been a physical education teacher and a baseball coach at Barrington High School for 11 years. Hawrysko denied seeing holes in the net before the incident. He stated that the only repairs he made to the net were securing the ties that fastened the net to the frame. Hawrysko stated that he would buy a new net rаther than repair a net with a hole. A net with a hole would be taken out of service. Hawrysko admitted that a hole in the net could cause serious injury. He denied ever seeing a ball go through a net during his 11-year employment at the high school. Hawrysko explained that sitting behind the net while pitching was inadvisable because the pitcher would be too close to the net to move quickly.
Hawrysko was on his way to the high school when plaintiff was injured. Wisniewski told Hawrysko about the incident. Hawrysko went to the batting cage and noticed a tear at the top of the net. The net was double-sided, and the tear was on the batter’s side, not the pitcher’s side. Hawrysko denied knowing about a hole before the incident. The net was repaired by tightening thе fasteners around the pole. Hawrysko testified that Wisniewski told him that his players had used the same net before the game and that there were no problems with the net at that time.
Michael testified that he and plaintiff used defendant’s batting cages about 30 times in 2007. Michael denied inspecting the nets before using them. On the date of the incident, Michael had a game in Mt. Prospect, and he used defendant’s cage to warm up because Barrington High School was on the way. Plaintiff and Michael waited for the high school players to finish with the cages before using one.
Michael testified that plaintiff sat on a bucket of balls behind the net and began pitching to Michael. Plaintiff was three to five feet away from the net. Plaintiff pitched 10 to 20 balls about 50 to 60 miles per hour. Michael struck some of the balls to the net, where they fell to the ground. Michael testified that plaintiff pitched a ball “right down the middle,” and Michael hit it so that it went “right through the net.” Michael denied seeing any problems with the net before the incident. Michael said that the ball went through a hole in the net and that he did not see the hole until after plaintiff was struck by the ball. The hole was not very big but large enough for a ball to pass through. Michael was unaware of the hole before plaintiff began pitching to him.
On September 9, 2009, the trial court granted defendant summary judgment. The court noted that the willful-and-wanton-conduct count had been allowed to go forward so discovery could reveal whether defendant had actuаl or constructive notice of any defect in the screen. Plaintiff did not dispute that a coach employed by defendant had used the screen a short time before plaintiff used it and that the coach did not observe any defect. Further, neither plaintiff nor his son observed any defect when they began using the screen. The court explained that, because there was no evidence that the alleged defect existed at any time before the injury, defendant could not have had notice, which is necessary to sustain a claim of willful and wanton conduct.
On October 6, 2009, plaintiff filed a motion to reconsider. The court denied the motion and this timely appeal followed.
ANALYSIS
On appeal, plaintiff argues that (1) the trial court erred in dismissing the negligence count and (2) a genuine issue of material fact exists regarding whether defendant’s conduct was willful and wanton. Defendant asserts that plaintiff forfeited review of the negligence claim by failing to replead it or otherwise incorporate it by reference in the amended complaint, but plaintiff responds that the dismissal with prejudice barred him from doing so. Defendant further argues that, even if plaintiff did not forfeit the negligence claim, the dismissal should be affirmed because the claim lacks merit. We agree with defendant that the claim is forfeited and lacks merit. We further agree with defendant that the trial court did not err in granting summary judgment.
A. Negligence
Plaintiff argues that the trial court erroneously dismissed the negligence claim sеt forth in the original complaint. Plaintiff omitted the claim and did not refer to it in any way in the amended complaint. Defendant argues that plaintiff has forfeited any objection to the trial court order dismissing the negligence count. The supreme court has set forth the circumstances under which a party who files an amended complaint forfeits any objection to the trial court’s rulings on any former complaints. Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp.,
“ ‘In particular is the interest in the efficient and orderly administration of justice. It is expected that a cause will proceed to trial on the claims as set forth in the final amended complaint.
This procedure ensures that the trial judge will be aware of the points in issue, and can properly rule on objections at trial. To allow a party to also introduce allegations related in earlier pleadings would result in confusion and impose an unnecessary burden upon the trial judge. No interest would be served by requiring the judge to speculate as to which legal theories or claims a party intends to advance during trial.
The complaint notifies the defendant of the alleged causes of action and theories of recovery. When a complaint is amended, without reference to the earlier allegations, it is expected that these allegations are no longer at issue. Defendants would be disadvantaged by a rule which would, in effect, permit a plaintiff to proceed to trial on different issues contained in separate complaints. In contrast, we perceive no undue burden in requiring a party to incorporate in its final pleading all allegations which it desires to preserve for trial or review.’ ” Childs v. Pinnacle Health Care, LLC,399 Ill. App. 3d 167 , 176 (2010), quoting Foxcroft,96 Ill. 2d at 154 .
To avoid forfeiture under the Foxcroft rule, a party wishing to preserve a challenge to an order dismissing with prejudice fewer than all of the counts in his complaint has several options. Childs,
Plaintiff argues that we should depart from the Foxcroft rule for two reasons. First, plaintiff asserts that, because the negligence claim was dismissed with prejudice, he was barred from proceeding to trial on that count, yet he could not appeal the order, as it was not final and appealable when the willful-and-wanton-conduct claim was pending. This argument was considered and rejected in Kincaid v. Parks Corp.,
Second, plaintiff argues in passing that we should disregard the Foxcroft forfeiture issue because defendant did not raise it when plaintiff moved for reconsideration of the dismissal of the negligence count and the entry of summary judgment. This section of plaintiffs reply brief is only one sentence and contains absolutely no citations to legal authority whatsoever. Supreme Court Rule 341(h)(7) provides that an appellant’s brief must contain “the contentions of the appellant and the reasons therefor, with citations of the authorities and the pages of the record relied on.” 210 Ill. 2d R. 341(h)(7). If a рoint is not argued, it is forfeited. 210 Ill. 2d R. 341(h)(7). “The well-established rule is that mere contentions, without argument or citation of authority, do not merit consideration on appeal.” People v. Hood,
Even if we were to ignore plaintiffs forfeiture of the negligence claim, we would conclude that the trial court did not err in dismissing it. The duty of a local public entity, such as a school district, is limited by section 3 — 102(a) of the Act, which states as follows:
“(a) Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequatе time prior to an injury to have taken measures to remedy or protect against such condition.” 745 ILCS 10/3 — 102(a) (West 2008).
Defendant argues that section 3 — 106 of the Act immunized it from plaintiff’s negligence claim. Section 3 — 106 provides that “[n] either a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings[,] or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.” 745 ILCS 10/3 — 106 (West 2008).
The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature. Nelson v. Northeast Illinois Regional Commuter R.R. Corp.,
Plaintiff argues that section 3 — 106 applies only to a condition of public property while this case involves safety equipment rather than public property. We agree with defendant that plaintiffs argument is flawed because it is based on the faulty assumption that the presence of the batting cage and protective screen does not constitute a “condition” under section 3 — 106.
In McCuen v. Peoria Park District,
The issue on appeal was whether the driverless hayrack was a “condition” of public property within the meaning of section 3 — 106. Our supreme court held as follows:
“We do not believe that a driverless hayrack is a condition of public property within the meaning of section 3 — 106. Plaintiffs do not claim that the hayrack itself was dangerous, defective or negligently maintained, only that the mule team was not handled properly by the park district employee. The handling of the mule team does not relate to the condition of the hayrack itself. If otherwise safe property is misused so that it is no longer safe, but the property itself remains unchanged, any danger presented by the property is due to the misuse of the property and not to the condition of the property.” McCuen,163 Ill. 2d at 129 .
McCuen illustrates that section 3 — 106 immunizes a defendant from liability in negligence where the property itself is unsafe, but that section 3 — 106 does not immunize the defendant for unsafe activities conducted upon otherwise safe property. Also, section 3 — 106 applies to facilities or structures that increase the usefulness of public property intended for recreational purposes. Sylvester v. Chicago Park District,
Plaintiff relies exclusively on Gerrity v. Beatty,
Gerrity and its progeny held that school districts have a duty to provide safety equipment, and the School Code offers no immunity from allegations of negligent failure to provide such equipment. However, the tort immunity provisions of the School Code and the Act are “ ‘independent enactments.’ ” Arteman,
B. Willful and Wanton Conduct
Next we consider plaintiffs argument that the trial court erroneously granted defendant summary judgment on the willful-and-wanton-conduct count. The purpose of summary judgment is not to try a question of fact but, rather, to determine whether a genuine issue of material fact exists. Adams v. Northern Illinois Gas Co.,
The summary judgment procedure is to be encourаged as an aid in the expeditious disposition of a lawsuit. Adams,
In this case, the trial court concluded that plaintiff pleaded sufficient facts to establish a duty under section 3 — 102(a) for defendant to protect plaintiff. However, defendant asserted and the trial court agreed that defendant was not liable for the injury, because plaintiff could not prove that defendant had actual or constructive notice of “the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remеdy or protect against such condition.” See 745 ILCS 10/3 — 102(a) (West 2008).
Section 1 — 210 of the Act states that “ ‘[w]illful and wanton conduct’ as used in this Act means a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property. This definition shall apply in any case where a ‘willful and wanton’ exception is incorporated into any immunity under this Act.” 745 ILCS 10/1 — 210 (West 2008). Plaintiff’s theory is that defendant’s failure to discover the alleged defect in the protective screen amounts to willful and wanton conduct that is not immunized by section 3 — 106 of the Act.
Willful and wanton acts show “actual or deliberate intent to harm” or, if not intentional, shоw “an utter indifference to or conscious disregard for a person’s own safety or the safety or property of others.” Pfister v. Shusta,
In this case, the undisputed evidence showed that defendant had no reason to suspect that the net would fail in the manner plaintiff claims. The coaches, Wisniewski and Hawrysko, each testified that he had never seen a ball pass through the net. Wisniewski testified that he had used the same net moments before plaintiff used it and did not see a hole or any other defect that would have alerted him that the net might be dangerous. Most importantly, plaintiff admitted that he did not see a hole or any other defect in the net before he used it. Michael’s testimony was consistent on this point as well. Michael claimed that a hole must have existed before the injury, but he admitted that he did not see a defect before plaintiff used the net. Defendant was entitled to summary judgment on the willful-and-wanton-conduct claim because there was no genuine issue of material fact as to whether defendant’s lack of knowledge regarding the allegedly defective net was reckless.
Plaintiffs reliance on Murray v. Chicago Youth Center,
Plaintiff’s reliance on Kirwan v. Lincolnshire-Riverwoods Fire Protection District,
The complaint in Kirwan further alleged that the defendants knew that the decedent’s condition was getting progressively worse and that there was an extremely limited time to provide the proper emergency medical treatment to prevent anaphylactic shock. The complaint alleged that the decedent’s life could have been saved upon the defendants’ arrival because her airway was not completely closed and she was conscious, was alert, and had stable vital signs. Further, the decedent’s situation required emergency medical procedures including ensuring that the airway remained open and administering several medications in a particular order. Based on the defendants’ training and applicable standard operating procedures, some of the medications should have been administered within the first 60 sеconds after the defendants’ arrival. The defendants failed to administer the drugs as emergency medical procedures required, but the decedent’s airway did not close for at least five minutes after their arrival. The defendants administered two of the drugs only after the decedent had gone into anaphylactic shock and two other medications at least seven minutes after arriving. The defendants did not administer another medication at all. Kirwan,
This case easily is distinguishable from Kirwan. First, in Kirwan, the willful-and-wanton-conduct claim was challenged with a motion to dismiss, rather than with a motion for summary judgment, like in this case. Motions for summary judgment and to dismiss are tested under different standards. Second, the complaint in Kirwan alleged facts that the defendants knew of the specific risk to the decedent of not acting quickly, while in this case, plaintiff has failed to allege that defendant had any knowledge, constructive or actual, that would have alerted it to the risk of a ball passing through the protective screen and injuring plaintiff.
Finally, plaintiffs reliance on Palmer v. Chicago Park District,
For the preceding reasons, the judgment of the circuit court of Lake County is affirmed.
Affirmed.
HUTCHINSON and SCHOSTOK, JJ., concur.