DRAWING THE LINE FOR RECKLESS CONDUCT

August 26, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

Floating somewhere between the extremes of an intentional tort and ordinary negligence, Illinois has two types of willful and wanton misconduct.

Correctly drawing the line near the negligence end of the spectrum is crucial in cases alleging malpractice by emergency medical technicians, because EMTs have immunity -- except when they are guilty of willful and wanton conduct. 210 ILCS 50/3.

Complicating the situation, Illinois judges ruling on the sufficiency of a complaint are supposed to ignore "conclusions of law," while accepting as true only "well-pleaded facts."

Forced to use a vague pleading rule to draw a firm line in often murky areas of disputed conduct, Illinois judges (operating without the blessing of notice-pleading) are plagued with debates over whether complaints adequately allege willful and wanton conduct. In a recent case, for example, the Illinois Appellate Court split 2-1 on whether a complaint against EMTs alleged facts adding up to recklessness. Kirwin v. Lincolnshire Riverwoods Fire Protection District, 2004 WL 1443910 (2d Dist., June 24).

Kimberly Kirwan died from an allergic reaction after eating walnuts at a Lincolnwood restaurant. A complaint filed on behalf of her estate alleged that her vital signs were still "stable" and that she had not yet gone into anaphylactic shock when EMTs arrived.

According to the complaint, the EMTs were reckless because they allegedly failed to administer epinephrine, Benadryl and albuterol during the crucial minutes before Kirwan's airway closed and she went into cardiac arrest, although they allegedly knew that this treatment was immediately required by the applicable "operating procedures."

The amended complaint did not cite a specific "operating procedure," even though the fire protection district had already provided a set of its written procedures during discovery.
Since the complaint did not identify the particular operating procedure that was allegedly violated, the trial judge -- granting a motion to strike -- held that the key allegations were mere "conclusions of law."

When the plaintiff declined to re-plead, the case was dismissed with prejudice. On appeal, the majority concluded that the complaint adequately alleged facts that, if true, could prove willful and wanton conduct. Here are some highlights of Justice John J. Bowman's majority opinion (with various omissions not noted in the quoted text):

"In Illinois there are two varieties of willful and wanton conduct, intentional and reckless. These two types of willful and wanton conduct are distinguished by the actor's mental state. Intentional willful and wanton conduct is committed with 'actual' or 'deliberate' intent to harm. By contrast, reckless willful and wanton conduct falls in between actual intent and mere negligence.

"Although reckless willful and wanton conduct is not committed intentionally, it is nonetheless, at least in theory, determined based on the actor's 'real or supposed state of mind.' W. Keeton, 'Prosser and Keeton on Torts,' section 34, at 212 (5th ed. 1984). Specifically, both the legislature and the Supreme Court have defined reckless willful and wanton conduct as conduct committed with 'utter indifference' to or 'conscious disregard' for the safety of others.
"The Supreme Court has also described the required mental state as a 'reckless disregard' for the safety of others. American National Bank & Trust Co. v. City of Chicago, 192 Ill.2d 274, 285 (2000).

Further, 'Ill will is not a necessary element of a wanton act [i.e., reckless willful and wanton conduct]. To constitute an act wanton, the party doing the act or failing to act 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.' Bartolucci v. Falleti, 382 Ill. 168, 174 (1943). It is reckless willful and wanton conduct that is at issue in this case.

"To plead a sufficient cause of action in either willful and wanton conduct or negligence, the plaintiff must allege the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach. However, unlike negligence, in order to sufficiently plead willful and wanton conduct, a plaintiff must also allege 'either a deliberate intention to harm or an utter indifference to or conscious disregard for the welfare of the plaintiff.' Adkins, 129 Ill.2d at 518.

"An actor's 'utter indifference' or 'conscious disregard' for the safety of others may be inferred from the outrageous nature of the conduct committed. The Supreme Court has provided two examples of conduct from which 'reckless disregard' for the safety of others can be inferred.

"The first is 'a failure, after knowledge of impending danger, to exercise ordinary care to prevent it.' American National Bank, 192 Ill.2d at 285. The second is 'a failure to discover [a] danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.' American National Bank, 192 Ill.2d at 285.

"Whether willful and wanton conduct has been committed in any given case requires close scrutiny of the facts as disclosed by the evidence. The Supreme Court has described willful and wanton conduct as a 'hybrid' between negligent and intentional acts. Ziarko v. Soo Line R.R. Co., 161 Ill.2d 267, 275 (1994). Thus, 'Under the facts of one case, willful and wanton misconduct may be only degrees more than ordinary negligence, while under the facts of another case, willful and wanton acts may be only degrees less than intentional wrongdoing.' Ziarko, 161 Ill.2d at 275-76.

"Whether a defendant's breach of a legal duty amounts to willful and wanton conduct is ordinarily a question of fact. That said, because fact-pleading is required in Illinois, a plaintiff must allege 'facts which, if proved, would show that the defendants acted or failed to act with an utter indifference or conscious disregard' for the plaintiff's safety. Adkins, 129 Ill.2d at 519.

"For purposes of a motion to dismiss, well-pleaded facts are taken as true and all reasonable inferences from such facts are drawn in favor of the plaintiff. However, we may consider only well-pleaded facts and not conclusions of law or fact.

"After reviewing the amended complaint, we conclude that plaintiff sufficiently pleaded reckless willful and wanton misconduct.
"Defendants fault plaintiff for not pleading any facts describing their conduct during the first seven minutes they arrived on the scene. Defendants do not cite any legal basis for their conclusion that a plaintiff must describe in detail all of the defendants' conduct within the relevant time frame. It is not the rule in Illinois that a plaintiff must plead every conceivably relevant fact. Rather, a plaintiff must allege sufficient facts to bring his claim within the scope of a legally recognized cause of action.

"In this case, plaintiff's allegations were sufficient to state a claim for willful and wanton conduct. Plaintiff alleged that, despite defendants' knowledge prior to their arrival on the scene that decedent was having difficulty breathing and her throat was closing due to an allergic reaction, and despite their training and standard operating procedures and accepted emergency practices, they waited between seven and eight minutes to administer two of the necessary medications and never administered the third.

"In cases of life-threatening emergencies, seven or eight minutes can be a significant delay that could amount to 'utter indifference' or 'conscious disregard' for decedent's safety.

"As we have noted, while there is a distinction between negligent conduct and that which is willful and wanton, the distinction is not necessarily a great one. There may be a reasonable explanation for defendants' conduct in this case, but it is not proper to dismiss a case on the basis of what probably happened (see Yuretich v. Sole, 259 Ill.App.3d 311, 314 (1994)).

"The court in Yuretich stated that, '[W]here merit is dependent upon the facts, a motion for summary judgment and not a motion to dismiss is the procedure which must be employed.' This is a case where merit is dependent upon the facts, not one where merit can be determined as a matter of law at the pleading stage.

"Taking plaintiff's well-pleaded facts as true, we cannot say that it clearly appears that plaintiff would not be entitled to relief under any set of facts. Plaintiff's allegations, if proved, could be sufficient to show that defendants were aware of impending danger to decedent and failed to exercise ordinary care to prevent it, thereby acting with reckless disregard for her safety.

"We are similarly unpersuaded by defendants' emphasis on the absence of allegations referring to the particular standard operating procedures that defendants allegedly violated. The amended complaint alleges that defendants' failure to properly administer medications violated their training, accepted emergency medical care, and standard operating procedures.

"Defendants have cited no authority for the proposition that plaintiff was required to identify or attach as exhibits the specific standard operating procedures that were violated, and we decline to require plaintiff to do so.

"We wish to emphasize that we are not creating a loophole by which a plaintiff may avoid dismissal of an insufficiently pleaded complaint. Here, plaintiff specified the ways in which defendants violated the standard operating procedures but did not identify the procedures themselves. We believe this is sufficient.

"If defendants believe that there is no issue of material fact as to whether they complied with the standard operating procedures, they should move for summary judgment. Furthermore, violation of the standard operating procedures was not the sole basis of the amended complaint. Plaintiff also alleged that defendants violated their training and accepted emergency care. Thus, even if plaintiff were required to point to the specific procedures that defendants violated, his failure to do so would not be a proper basis for dismissing the entire complaint.

"For the foregoing reasons, we conclude that plaintiff sufficiently pleaded willful and wanton misconduct by defendants."

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