No. 2-10-0045 F iled: 12-20-10

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I N THE APPEL L ATE COURT OF I L L I NOI S SECOND DI STRI CT

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ THOMAS J . VI LARDO, ) Appea l from the Circuit Court ) of L ake County

. Plaintiff-Appellant, ) ) v. ) No. 08--L --95 ) BA RRI NGTON COMMUNI TY SCHOOL ) DI STRI CT 220, ) Honora ble ) Christopher C. Starck, Def endant- Appellee

. ) J udg e, Presiding

.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J USTI CE BURKE de livered the opinion of the court: An "L " scre en is a fre e-standing , L -s h aped structure used in baseba ll batting prac tice to protec t the pitcher. Whil e behind the scre en, the pitcher throws the ball throug h a cutout portion of the scre en, and the scre en shields the pitcher from balls hit toward him. Def endant, Ba rr ington Communi ty School District 220, operates a baseba ll fi el d wi t h batting cag es and L scre ens at Ba rring ton High School. Plaintiff, Thomas J

. Vilardo, t o o k his son, Michae l, to defe ndant' s baseba ll field to use a batting cag e. Plaintiff sat on a bucket behind an L scre en and pitched t o M i ch ae l

. Michae l hit

sever al balls to the scre en, wher e they bounced harmlessly to the g round. Howeve r, one ball struck the scre en, passe d throug h the mesh, and struc k plaintiff' s fac e, ca using injury

. Plaintiff filed a two-count complaint, alleg ing claims of neg lige nce and willful and wanton conduct based on defe ndant providing defe ctive equipment. The trial court dismiss ed with prejudiceNo. 2--10- -0045

the neg lige nce claim pursuant to section 2--619( a)( 9) of the Code of Civil Procedur e (Code) (see 735 I L CS 5/2--619(a )(9) (West 2008)) on the g round that section 3--106 of the L ocal Gover nmental and Gover nmental Employ ees Tort I mmunity Act (Ac t) (745 I L CS 10/3--106 (West 2008)) immuniz ed defe ndant from liability

. The count alleg ing willful and wanton conduct was dismiss ed without prejudice under se ction 2--615 ( see 735 I L CS 5/ 2--615 ( West 2008)). Plaintiff filed an amende d complaint alleg ing only willful and wanton conduct. The trial court g rante d defe ndant summary judgme nt on the am en d ed co mplaint (see 735 I L CS 5/2--1005 (West 2008)). Plaintiff appea ls the d i s m issal of t he neglig ence count and the s ummary judgme nt enter ed for defe ndant on the willful-and-w anton-c onduct count. Def endant asser

ts that plaint i ff fo rf

eited revie w of the neg lige nce claim by failing to reple ad it or otherwise incorporate it by ref ere nce in the amende d complaint, but plaintiff responds that the dismiss al with prejudice barr ed him from doing

so. Def endant further argues that, even if plaintiff did not forf eit the neg lige nce claim, the dismiss al should be aff

irmed beca

use the claim lacks merit. Def endant also contends that summary judgme nt

was p ro p er . We ag ree with defe ndant. We hold that (1) plaintiff proce durally defa ulted any challeng e to the dismiss al of the neg lige nce count, which in any event lacks merit; and (2) the trial court did not err in g ranting defe ndant summary judgme nt on the willful- a nd-wa nton-conduc t count. We affir m. FACTS On J anuar

y 31, 2008, plaintiff fil ed a two-count complaint. Plaintiff alleg ed t h at, on J une 25, 2007, defe ndant operated a batting cag e in Barr ington a nd owed plaintiff a

duty to operate t he premises safe ly , but had allowed the premises to become dang erous and knew of the dang erous

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condition. S p ec i fica lly , plaintiff alleg ed that defe ndant (1) improperly operated, manag ed, maintained, and controlled the premises; (2) allowed and per m i tted a hole to be present i n the net protec ting the pitcher; (3) f ailed to make a rea sonable inspection of the premises and the net when defe ndant knew or

should have known that such an inspec tion was nec essar y to pr event plaintiff' s injury ; and (4) failed to war n p l ai n t iff of the net' s dang erous condition when defe ndant knew or should have known that such a war ning was nece ssary to preve nt plaintiff' s injury

. Plaintiff alleg ed that, as a direc t proxi m at e re s u l t of defe ndant' s conduct, plaintiff was struck and injured by a baseba ll. The two counts of the complaint wer e near ly identical ex ce pt count I char acte rized defe ndant' s conduct as neg lige nce and count I I cha ra ct er ized defe ndant' s conduct as willful and wanton. On April 22, 2008, defe ndant filed a combined motion to dismiss under section 2--619.1 of the C ode. See 735 I L CS 5/2--619.1 (W est 2008) (providing for combined mot ions see k i n g re l i ef under sections 2--615 and 2--619) . Def endant a rg ued that both counts should be dis missed under section 2--619 of the Code in that section 3--106 of the Act was aff irmative matter defe ating the claims. I mmunity under the Act is aff ir m at i v e matter proper ly raised in a section 2--619( a)( 9) motion to dismiss

. Artema n v. Clint on Communi ty Unit School District No. 15, 198 I ll. 2d 475, 479 (2002). Def

endant alternatively argued that the willful-and-w anton-c onduct count s h o uld be dismiss ed under section 2--615 for failing to state a claim. The trial court dismiss ed with prejudice the neg lige nce count under section 2--619( a)( 9), and the court dismiss ed without prejudice the willful-and-w anton-c onduct count under section 2-- 615.

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On Aug ust 18, 2008, plaintiff filed an amende d complaint alleg ing that defe ndant eng ag ed in willful and wanton conduct. Specifica lly , plaintiff asser ted that defe ndant knew there was a hole in the protec tive scre en, which cre ated a dang erous condition for persons using the premises, and that defe ndant wil lfully and wantonly failed to addre ss this dang ero us condition. Def endant alleg edly used the batting cag e daily , knew of the hole in the scre en, left the g ate to the fac ility unlocked, and knew that the public used the batting cag e and protec tive scre en regularly

. The amende d complaint alleg ed that defe ndant committed the following wi l l fu l and wanton acts and omissions : (1) improperly operated, manag ed, maintained, and controlled the premises; (2) allowed and permitted a hole to be present i n the net protec ting the p itcher; (3) failed to make a rea sonable inspection of the premises and the net whe n defe ndant knew or should have known that such an inspection was

nece ssary to preve nt plaintiff' s injury ; (4) failed to war n plaintiff of the net 's d anger ous condition when defe ndant knew or should have known that such a war ning was nece ssary to preve nt plaintiff' s injury ; and (5) failed to lock the g ate to the fac ility

. Plaintiff alleg ed that, as a direc t proxi mate result of def endant' s willful and wanton conduc t, plaintiff was struc k and injured by a base ball. Def endant moved for summary judgme nt, arguing that sections 3--102 and 2--201 of the Act provided immunit y from liabilit y an d that defe ndant did not proxi mately cause plaintiff' s injury

. Plaintiff testified in his deposition that he had used the batting cag es at Ba rring ton Hig h School

sever al times befor e the date of the injury . Plaintiff estimated that he ha d used the c ag es 50 times in three y ear s. Plainti ff used the cag es on evening s and weekends to help hi s son warm up be fore g ames. Plaintiff used the cag es on the date of the injury to help his son war m up befor e a g ame that

was to be held at a f

ield near by

. Plaintiff te stified that he had extensive e x perie nce using pitcher' s

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nets at defe ndant' s school and at other locations, and plaintiff had not experience d any problems with defe ndant' s nets befor e the injury

. Plaintiff testified that he beg an using a batting cag e around 4 p.m. on the date of the incident. A summer baseba ll league g ame was being play ed at the time. Neither plaintiff nor his son inspected the scre en bef

ore usingit. Pl aintiff steppe d behind the scr een a nd positioned himself so his entire body was behind it. Plaintiff sat on a bucket o f b al l s. Plaintiff did not see any holes in the net, which wa s about 20 to 25 fee t from the batter

. Plaintiff beg an pitching balls to his son. Plaintiff threw about 10 pitches, which he estimated to be 60 to 70 miles per hour. Plaintiff's son hit the balls, some of which struck the scre en. The last pitch was hit straig ht back towa rd plaintiff a

nd struck him in the left ey e. Coach Wis niewski testified that he was a teac her and baseba ll coac h employ ed by defe ndant. Wis niewski testified that it is standard prac tice for coac hes to inspe ct the pitcher' s nets befor e they

are used. I f 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. Wis niewski denied seeing a baseba ll g o throug h the net during his foury ear employ

ment by defe ndant. Wis niewski also denied seeing someone hit in the fac e by a baseba ll while using a pitcher ' s net. Wis niewski explained that play ers using t he net had to wea r hel m et s and st and behind the net, which was to be place d a safe distance from the batter. Play ers who noticed any problems with the net wer e instructed to advise the coac h. Wis niewski also explained that the net is usually place d 50 to 60 fee t from the batter . Ba rring ton High School pla

y ers in the summer base ball league used the batting cag es and f

ields duringthe summer base ball season. The play ers use the batti ng cag es befor e and during league g ames. Wis niewski coac hed during the 2007 summer baseba ll season. The

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play ers would have used the nets to war m up for the g ame that was being play ed when plaintiff was injured. Ther e we re no pr oblems with the nets used by the play ers on the date of the inc ident. Wis niewski testified that he did not witness plaintiff' s injury , but pare nts at the g ame told him about it. Wis niewski believed that plaintiff was hit by the ball beca use he had not positioned himself completely behind the net. Wis niewski looked at the net afte r the incident and saw no hole or tear in the net. Coach Hawr

y sko testified that he had been a phy sical education teac her and a baseba ll coac h at Ba rring ton Hig h School for 11 y ear s. Hawr y sko denied seeing holes in the net befor e the incident. He stated that the only repa irs he made to the net wer e secur ing the ties that fastene d the net to the frame. Hawr

y sko stated that he would buy a new net rathe r than repa ir a net with a hole. A net with

a hole would be taken out of service

. Hawr y sko admitted that a hole in the net could cause serious injury

. He denied ever seeing a ball g o throug h a n et d u ri n g h is 11-y ear employ ment at the high school. Hawr

y sko explained that sitti ng behind the net while pitching was inadvisable beca use the pitcher w ould be too close to the ne t to move quickly

. Hawr y sko was on his way to the hi g h school when plaintiff was inj ured. Wis niewski told Hawr y sko about the incident. Hawr y sko went to the batting cag e 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. Hawr y sko denied knowing about a hole befor e the incide nt. The net was repa ired by tightening the fastene rs around the pole. Hawr

y sko testified that Wis niewski told him that his play ers had used the same net befor e the g ame a

nd that there wer e no proble ms with the net at that time. Michae l testified that he and plaintiff used defe ndant' s batting cag es about 30 times in 2007. Michae l denied inspecting the nets befor e usi ng them. On t he date of t he incident, Michae l had a

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g ame in Mt. Prospect, and he used defe ndant' s cag e to war m up beca use Ba rring ton Hig h School was

on the way . Plaintiff and Michae l waited for the high school play ers to finish with the cag es befor e using one

. Michae l te stified that plaintiff sat on a bucket of balls behind the net and beg an pitching to Michae l. Plaintiff was three to five fee t awa y from the net. Plaintiff pitched 10 to 20 balls about 50 t o 6 0 miles per hour. Michae l struck some of the balls to the net, wher e they fell to the g round

. Michae l testified t hat pl aintiff pit ched a ball "r ight d o wn the m iddle," and M ichae l hit it so that it went "r ight throug h the net." Michae l denied seeing any problems with the net befor e the incident. Michae l said that the ball went throug h a hole in the net and that he did not see the hole until afte r plaintiff was struck by the ball. The hole was not very bi g b u t l ar ge en oug h for a ball to pass throug h. Michae l was unaw are of the hole be fore plaintiff beg an pitching to him. On September 9, 2009, the trial court g rante d defe ndant summary judgme nt. The court noted that the willful-and-w anton-c onduct count had been allowed to g o forwa rd so discovery could reve al wheth er d ef

en d ant had actua l or constructive notice of any defe ct in the scre en. Plaintiff did not dispute that a coach employ ed by defe nd an t had used the s cre en a short time befor e plainti ff used it and that the coac h did not observe any defe ct. Fur ther, neither plaintiff nor his son observe d any defe ct when they beg an using the scre en. The court explained that, beca use there was no evidenc e that the alleg ed defe ct exis ted at any time befor e the in j u ry , d ef endant could not have had notice, which is nec essar

y to sustain a claim of willful and wa nton conduct. On October 6, 2009, plaintiff filed a motion to rec onsider. The court denied the motion and this ti mely

appea l followed. ANALYSI S

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On ap p eal, plaintiff argues t hat (1) the t rial court err ed in dismiss ing the neg lige nce co u n t and (2) a g enuine issue of materia l fac t exis ts reg arding whether defe ndant' s conduct was willful and wanton. Def

endant asser

ts that plaintiff forf

eited revie w of the neg lige nce claim by failing to reple ad it or otherwise incorpora

te it by ref

ere nce in the amende d complaint, but plaintiff responds that the dismiss al with prejudice barr ed him from doing so. Def endant further arg

ues that, even if plaintiff did not forf

eit the neg lige nce claim, the dismiss al should be aff irmed beca

use the claim lacks merit. We ag ree with defe ndant that the claim is forf eited and lacks merit. We further ag ree with defe ndant that the trial cour

t did not err in g ranting summary judgme nt. A. Neg lige nce Plaintiff argues that the trial court err oneously dismiss ed the neg lige nce claim set forth in the orig inal complaint. Plaint i ff omitted the claim and did not ref er to it in any way in the amende d complaint. Def

endant argues that plaintiff has forf ei ted any objection to the trial court order dismiss ing the neg lige nce count. The supreme court has set forth the circ umstances under which a party who files an amende d complaint forf eits any objection to the trial court' s ruling s on any former complaints. Foxcroft Townhome Owner s Ass' n v. Hoffma n Rosner Corp., 96 I ll. 2d 150, 153 (1983). The court ex plained that, " '[w]here a n amendment is complete in itself and does not re fer to or adopt the prior pleading , the ear lier pleading cea ses to be a part of the rec ord for most purposes, being in eff

ect abandone d and withdrawn.' " Foxcroft, 96 I ll. 2d at 154, quoting Bow man v. County of L ake, 29 I ll. 2d 268, 272 (1963). The r ule is supported by

signific ant policy

considerations: " ' I n particula

r is the interest in the eff icient and order ly administration of j u stice. I t is expected that a cause will proce ed to tri al o n t h e cl aims as set forth in the final amende d complaint.

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This proce dure ensures that the t rial j udg e will be aw are of t he point s in issue, and

can proper ly rule on objections at trial. To allow a party to also introduce alleg ations related in ear lier plea dings w ould result in confusion and impose an unnecessar y burden upon the trial judge

. No interest would be serve d by requiring the judge to specula te as to which leg al theories or

claims a pa

rty intends to advanc e during trial. The complaint notifies the defe ndant of the alleg ed cause s of action and theories of

rec overy . Wh en a co mplaint is amende d, without ref ere nce to the ear lier alleg ations, it is expected that these alleg ations are no longe r at issue. Def endants would be disadvantag ed by a rule which would, in eff ect, permit a plaintiff to proce ed to trial on differ en t issues contained in separ ate complaints. I n contra st, we perce ive no undue burden in requiring a party to inc orporate in its final pleading all alleg ations which it desires to pre serve for tria l

or revie w.' " Childs v. Pinnacle Hea lth Care, L L C, 399 I ll. App. 3d 167, 176 (2010), quoting Foxcroft, 96 I ll. 2d at 154. To avoid forf

eiture under the Foxcroft rule, a par t y wi s h ing to prese rve a challeng e to an

o rd er dismiss ing with prejudice few er than all of the counts in his complaint has sever al o p t i o n s . Childs, 399 I ll. App. 3d at 176. First, the plaintiff may stand on the dismiss ed counts and argue the matter at the appell at e l ev el

. Childs, 399 I ll. App. 3d at 176. Second, the plaintiff may file an amende d complaint rea lleg ing, incorporating by ref ere nce, or ref

err ing to the claims set forth in the prior complaint. Childs, 399 I ll. App. 3d at 176; see also Tabora v. Gottlieb Memorial Hospital, 279 I ll. App. 3d 108, 114 (1996) (noting that "[a] simple para g raph or footnote in the amende d pleading s notify ing [t he] defe ndants and the court that [t he] plaintiff was prese rving the dismiss ed portions of his former complaints for appea l" is sufficie nt to protec t ag ainst forf eiture under Foxcroft). Third,

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a party may perf

ect an ap p ea l fr om the order dismiss ing few er than all of the counts of his or her complaint prior to filing an am en d ed pleading that does not include ref ere nce to the dismiss ed counts. Childs, 399 I ll. App. 3d at 17 7. Plaintiff pursued none of these options, and thus has forf eited re view of the neg lige nce c ount in this appea l. Plaintiff argues that we should depar t from the Foxcroft rule for two rea sons. First, plaintiff

asser ts that, beca

use t h e neg lige nce claim was dismiss ed with prejudice , he was barr ed from proce eding to trial on that count, y et he could not appea l the order , as it was not final and appea lable when the willful-and-w anton-c onduct claim was pendin g. This argument was considere d and reje cted in Kincaid v. Parks Corp., 132 I ll. App. 3d 417, 419 (1985) (appe llate court reje cts position that Foxcroft must be limited to case s wher e a count is dismi ssed but leave to replea d the count is g rante d). We ag ree with the rationale of Kinca id and dec line to depar t from its holding. Second, plaintiff argues in p as s ing that we should disreg ard the Foxcroft forf eiture issue beca use def endant did not ra ise it when plaintiff moved for rec onsideration of the dismiss al of the neg lige nce count and the entry of summary judgme nt. This se ction of plaintiff' s reply brief is only

one sentenc e and contains absolutely no citations to leg al authority whatsoeve r. Supreme Court Rule 341(h)( 7) provides that an appellant' s brief must contain "the contentions of t h e ap p ell ant and the

rea sons there for, with citations of the authorities and the pag es of the rec ord relied on." 210 I ll. 2d R. 341(h)( 7). I f a point is not argued, it is forf eited. 210 I ll. 2d R. 341(h)( 7). "T he well-e stablished rule is that me re contentions, without a rg ument or citation of authority , do not me rit consideration

on appea l." People v. Hood, 210 I ll. App. 3d 7 4 3 , 746 (1991). "Contentions supported by some argument but by absolutely no authority do not meet the require ments of Supreme C o u rt R u l e 341([h] )(7) ." Hood, 210 I ll. App. 3d at 746. "A revie wing court is entitled to have the issues clea rly

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define d with pertinent authority cited and is not simply a depository into which the appea ling party may dump the burden of argument and rese arc h." Hood, 210 I ll. App. 3d at 746. Acc ording ly , we may treat plaintiff' s position as having be en proc edura lly defa ulted for f

ailure to c ite authority

. Even if we wer e to ig nore plaintiff' s forf eiture of the neg lige nce claim, we would conclude that the trial court did not err in dismiss ing it. The duty of a loca l p ub l i c en t i t y , s uch as a school district, is li mited by

section 3-- 102(a) of the Ac t, which states as f ollows: "( a) Ex cept as otherwise provided in this Article, a local public entity has the duty to exercise or dinary

car e to maintain its property in a re asonably

safe condition for the use in the exercise of ordi n ar y ca re o f people whom the entity intended and permitted to use the proper ty in a manner in which an d at s u ch times as it was rea sonably fore seea ble that it would be used, and shall not be liable for inju ry u n l es s i t i s proven that it has actua l or constructive notice of t h e exis tence of such a condition that is not rea sonably safe in reasonably adequate time prior to an injury to have taken measure s to reme dy or protect ag ainst such condition." 745 I L CS 10/ 3--102( a) ( West 2008). Def endant argues that section 3

-- 1 0 6 o f the Act immuniz ed it from plaintiff' s neg lige nce claim. Section 3--106 provides that "[n]either a local public entity nor a public e mploy ee is liable for an injury wher e the liability is based on the exis tence of a condition of any public proper ty intended or permitted to be used for rec reational purposes, including but not limit ed to parks, playg rounds, open are as, buildings[,] or other enclose d rec rea tional fac ili ti e s , u

n le ss such local entity

or public employ ee is g

uilty of willful a

nd wanton conduc t pr ox imately causing such injury ." 745 I L CS 10/ 3--106 ( West 2008).

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The primary rule of statutory construction is to asce rtain and g ive eff ect to the intent of the leg islature. Nelson v. Northea st I llinois Reg ional Commut er R.R. Corp., 364 I ll. App. 3d 181, 189 (2006). The most reliable i n d i ca t i o n of leg islative intent is the lang uag e of the statute itself. I n interpre ting a statutory provision, words should be g iven their plain and ordinary meaning

. Be cause the construc tion of a statute is a matter of law, revie w is de novo. Nelson, 364 I ll. App. 3d at 189. Plaintiff argues that section 3--106 applies only to a condition of public proper ty while this

case involves safe ty equipment rathe r than public proper ty
. We ag ree with defe ndant that plaintiff' s argument is flawe d beca

use it is based on the faulty assumption that the prese nce of the batting cag e and prote ctive scr een doe s not constitute a "c ondition" under section 3-- 106. I n McCuen v. Peoria Park District, 163 I ll. 2d 125 (1994), our supreme court addre ssed the meaning of the word "c ondition" as used in section 3--106 of the Act, which immuniz es local public entities from liability in n egl ige nce based on "the exis tence of a condition of any public proper ty i n t ended or permitted to be used for rec reational purposes." 745 I L CS 10/3--106 (West 2 0 0 8 ). Whil e visiti ng a park owned and operated by the Peoria Park District, a park district employ ee told McCuen to clim b onto a hay rac k to take a mule- draw n hay rac k ride. McCue n, 163 I ll. 2d at 126. Whil e the employ ee was harne ssing the mules, he slapped a strap over one of the mules, causing the mule team to suddenly bolt and run off with the driverle ss hay rac k. McCuen, 163 I ll. 2d at 126-27. McCuen was thrown to the g round and injured. She sued the park district. McCuen, 163 I ll. 2d at 127. The issue on appea l was whether the driverle ss hay rac k was a "c ondition" of public proper ty within the meaning of sec tion 3--106. Our supr eme c ourt held as f ollows:

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"We do not believe that a driverle ss hay rac k is a condition of public proper ty within the meaning of section 3--106. Plaintiffs do not claim that the hay rac k itself was dang erous, defe ctive or neg lige ntly maintained, only that the mule team was not handled proper ly by the park district employ ee. The handling of the mule team does not relate to the condition of the hay rac k itself. I f otherwise safe proper ty is misused so t h at i t i s no longe r safe , but the proper ty itself rema ins unchang ed, any dang er prese nted by the proper ty is due to the misuse of the prope rty

and not to the condition of the prope rty ." Mc Cuen, 163 I ll. 2d at 129. McCuen illustrates that sec tion 3--106 immuniz es a defenda nt from li ability in neg lige nce wher e the proper t y i t s el f i s unsafe , but that section 3--106 does not immuniz e the defe ndant for unsafe activities conducte d upon otherwise safe proper ty
. Also, section 3--106 applies to fac iliti es

or structure s that incre ase t h e u s efulne ss of public proper ty intended for rec rea

tional purposes. Sy lvester v. Chicag o Park District, 179 I ll. 2d 500, 508 (1997) (wa lkway s and parking lots adjac ent to stadium incre ase rec reational usefulness of the fac ility and there fore qualify as proper ty intended to be used for rec reational purposes). Her e, the batting cag e and the protec tive pitcher' s scre en

en h an ce d the usefulness of the baseba ll fields, which are intended for rec reational purpos es . Plaintiff's orig inal complaint alleg ed that defe ndant neg lige ntly maintained the batting cag e and net, allowed a hole to exis t in the net, failed to inspect the net, and faile d t o war n of the dang erous condition in the net. Plaintiff did not alleg e that defe ndant proxi mately cause d t h e injury by

m i s u s i n g otherwise safe equipment. Thus, section 3--106 immuniz ed defe ndant from liability i n neg lige nce based on "the exis tence of a condition of any public proper ty intended or permitted to be

u s ed fo r re cr ea tional purposes." 745 I L CS 10/3--106 (West 2008). The trial court did not err in dismiss ing the neg lige nce c laim.

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Plaintiff relies exclusively on Ger rity v. Be atty , 71 I l l

. 2 d 4 7, 52 (1978), in which our supreme court held that school d i s t ri ct s have a common-law duty to provide safe ty equipment to students when eng ag ed in activities that may be dang erous. Plaintiff ar g ues that the c ommon-law duty extends to providing nondef ective pr otective pitchingscre ens. Ger rity and its prog eny held that school districts have a duty to provide safe ty equipment, and the School Code offe rs no immunit y from alleg ations of neg lige nt failur e to p r o vide such equipment. Howeve r, the tort immun i t y provisions of the School Code and the Act are " ' independe nt

enac tments.' " Artema

n, 198 I ll. 2d at 483, quoting Cooney v. Society of Mt. Carmel, 75 I ll. 2d 430, 434 (1979). Thus, the supreme court has held that if the Act immuniz es a school di s t ri ct from liability for neg li gence while the School Code does not, the Act applies. To rule otherwise "imper missibl y elevates a common law duty over an applicable statutory immunit y ." Artema n, 198 I ll. 2d at 487. Acc ording ly , we reje ct plaintiff' s contention that Ge rrity and its prog eny defe at defe ndant' s tort immuni ty defe nse under

the Act. B. Willful and Wanton Conduct Next we consider plaintiff' s argu m ent that the trial court err oneously g rante d defe ndant summary judgme nt on the willful-and-w anton-c onduct count. The purpose of summary judgme nt is not to try a question of fac t but, rathe r, to deter mine whether a g enuine issue of materia l fac t exis ts. Adams v. Norther

n I llinois Gas Co., 211 I ll. 2d 32, 42-43 (2004). Summary judgme nt is appropr iate wher e the pleading s, aff

idavits, depositions, and admissions on file, when viewed in the light most favor able to the nonmoving party , show that there is no ge nuine issue of mate rial fa ct and that the

m o v i n g p ar t y i s entitled to a judgme nt as a matter of law. 735 I L CS 5/2--1005(c ) (West 2008); Klitz ka v. Hellios, 348 I ll. App. 3d 594, 597 (2004). In revie wing a g rant of summary judgme nt, this

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court must construe the pleading s, depositions, admissions, and a f f idavits strictly ag ainst the moving party and libera lly

in favor of

the nonmoving pa

rty . Wil liams v. Manche ster, 228 I ll. 2d 404, 417 (2008). Where rea sonable persons could draw diverg ent infere nces from the undisputed materia l fac ts or wher e ther e is a dispute as to a materia l f

act, summary judgme nt should be denied and the issue decide d by the trier of fac t. Espinoza v. Elg in, Joliet & Easter n Ry

. Co., 165 I ll. 2d 107, 114 (1995). I f a party moving for s ummary judgme nt i n t ro d uces facts that, if not contra dicted, would entitle him to a judgme nt as a matter of law, the opposing party may not rely on his pleading s alone to raise issues of materia l fac t. Klitz ka, 348 I ll. App. 3d at 597, citing Herme s v. Fische r, 226 I ll. App. 3d 820, 824 (1992). The summary judgme nt proce dure is to be encour ag ed as an a id in th e expeditious dispositi on of a lawsuit. Adams, 211 I ll. 2d at 43. Howeve r, summary judgme nt is a drastic means of disposing of litigation and should not be g rante d unless the movant' s rig ht to judgme nt is clea r and fre e from doubt. Forsy

the v. Clark USA, Inc., 224 I ll. 2d 274, 280 (2007). I n this case , the trial court conclude d that plaintiff pleade d sufficie nt fac ts to establish a duty under section 3--102( a) for defe ndant to protec t plaintiff. Howeve r, defe ndant asser ted and the trial court ag ree d that defe ndant was not liable for the injury , beca use plaintiff could n o t p ro ve that defe ndant had actua l or constructive notice of "the exis tence of such a condition that is not

rea sonably safe in rea sonably adequate time prior to an injury to have taken measure s to reme dy or protec t ag ainst such condition." See 745 I L CS 10/ 3--102( a) ( West 2008). Section 1--210 of the Act s t ates that " ' [w] illful and wanton conduct' as used in this Act

means a course of action which shows an actual or deliberate i ntention to cause harm or which, if not intentional, shows an utter indiffer ence to or conscious disreg ard for the safe ty of others or their

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proper ty
. T h is definition shall apply in any case wher e a ' willful and wanton' exception is incorpora ted into any immunit y under this Act." 745 I L CS 10/1--210 (West 2008). Plaintiff's theory is that defenda

nt's failure to disc over the alleg ed defe ct in the protec tive scre en amounts to willful and wa nton conduct that is not immuni zed by section 3-- 106 of the Ac t. Wil lful and wanton acts show "a ctual or delibera te intent to harm" or, if not intentional, show "a n utter indiffer ence to or conscious disreg ard for a person' s own safe ty or the safe ty or proper ty of others." Pfister v. Shusta, 167 I l l

. 2 d 417, 421 (1995). Plaintiff does not alleg e that defe ndant intentionally harme d him. Rather, plaintiff argues that g enuine issues of materia l fac t exis t reg arding whether defe ndant acted wit h conscious dis reg ard for hi s well-be ing. A noni nt en t i o n al wi llful or wanton act is committed under circ umstances showing a rec kless disreg ard for the safe ty of others such as, for example, when a par t y fa ils, afte r knowledg e of an impending dang er, to exercise ordinary car e to preve nt the dang er or fails to discover the dang er through re ck l es sness or

car elessness when it could have been d i s cover ed by the exercise of ordinary car e. Americ an National Ba

nk & Trust Co. v. City of Chicag o, 192 I ll. 2d 274, 285 (2000). " ' More than mere inadver tence or momentary

inattentiveness which may constitute ordinary neg lige nce is ne cessa ry for an act to be classified as wilful and wanton misconduct.' " Oelze v. Score Sports Venture , L L C, 401 I ll. App. 3d 110, 122 (2010), quoting Stamat v. Merr y , 78 I ll. App. 3d 445, 4 49 (1979). The party committing the willful and wanton act or failure to act " ' must be conscious of his conduct, and, t h o u gh h av ing no intent to injure, must be conscious, from his knowledg e of the surroundi n g circ umstances and exis ting conditions, that his conduct will natura lly and probably result in injury .' " Oelze, 401 I ll. App. 3d at 122-23, quoting Ba rtolucci v. Fa lleti, 382 I ll. 168, 174 (1943). Whether

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conduct amounts to willful and wan t o n is g ener ally a question of fac t for the jury to deter mine. Oelze, 401 I ll. App. 3d at 123. I n this case , the undisputed evidenc e showed that defe ndant had no rea son to suspect that the net would fail in the manner plaintiff claims. The coac hes, Wis niewski and Hawr y sko, eac h testified that he had ne ver se en a ba ll pass throug h the net. Wisniewski testified that he had used the same net mo m en t s b ef

o re p l aint iff used it and did not see a hole or any other defe ct that would have aler ted him that the net might be dang erous. Most importantly , plaintiff admitted that he did not see a hole or any other defec t in the net before h e u s ed it. Michae l's testimony was consistent on this point as well. Michae l claimed that a hole must have exis ted befor e the injury , but he admitted that he did not see a defe ct befor e plaintiff use d the net. De fenda nt w as entitled to summar y judgme nt

on the willful-and-w anton-c onduct claim beca use there was no g enuine issue of materia l f act as to whether defe ndant' s lack of know ledg e re g ardingthe alleg edly defe ctive net wa s rec kless. Plaintiff's relianc e on Murra y v. Chicag o Youth Center, 224 I ll. 2d 213 (2007), is misplaced. I n Murra y , the plaintiff and his mother sued the Chicag o Boa rd of Education and others to rec over for the pla intiff' s injuries from a mini-trampoline ac cident. The trial court g rante d the def endants' motion for summary judgme nt, holding the defe ndants immune from liability under sections 2--201 and 3--108( a) of the Act. The supreme court reve rsed, holding that the claim of willful and wanton conduct survived the summary judgme nt motion in light of the well-known risk of using a minitrampoline and the defe ndants' admission that they provided no training or spotters for the plaintiff. Murra y , 224 I ll. 2d at 246. The court eff ectively held as a matter of law that the complaint alleg ed sufficie nt fac ts of the defe ndant' s willful and wanton conduct to cre ate a jury question. Murra y , 224 I ll. 2d at 245. This c ase is distinguishable, as plaintiff has not a lleg ed fac ts that a ny of defe ndant' s

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employ ees knew or should have known of the risk of a ball passing throug h the protec tive scre en and injuring pla intiff. Plaintiff's r eliance on Kirwa n v. L incolnshire-River

woods Fire Protection District, 349 I ll. App. 3d 150 (2004), also is misplaced. I n Kirwa n, the dece dent d i ed from a violent rea ction to a food allergy while dining at a resta u ra n t
. The complaint alleg ed that the emer g ency medical personne l who responde d t o t h e 9 -1 -1 call had acte d willfully and wantonly in failing to treat the dece dent faster

. The caller had told the 9-1-1 dispatcher that the dece dent was having an allerg ic

rea cti o n and, as a result, was having a hard time breathing and staying awake. The caller further stated that the dece dent' s throat was closing and that she was turning red and whee zing. The 9-1-1 dispatcher contac ted the defe ndants and stated that an ambulance was neede d for an allerg ic rea ction and that the dece dent' s throat was closing

. Acc ording to the complaint, prior to arr iving at the scene , the defe ndants knew that the dece dent was " ' in a life threa tening situation due to an allerg ic rea ction to walnuts.' " K irwan, 349 I ll. App. 3d at 152. The ambulance arr ived at the r estaura nt about five minutes after

the 9-1-1 c all. The complaint in Kirwa n further alleg ed that the defe ndants knew that the d ec edent's condition w as g etting prog ressively worse and that there was an extremely limit ed time to provide the proper emer g ency medical treatment to preve nt anaphy lactic shock. The complaint alleg ed that the dec edent' s life could have been saved upon the defendants' arr ival beca use her airwa

y was not completely closed and she was conscious, was aler t, and had s t ab l e v i t al signs. Fur ther, the dece dent' s situa t i o n required emer g ency medical proce dures including ensuring that the airwa y

rema ined open and administering sever al medications in a particula r order

. Ba sed on the defe ndants' training and applicable st andar d operating procedur es, som e of the m edication s s h o uld have been

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administered within the first 60 s ec o n d s afte r the defe ndants' arr ival. The defe ndants failed to administer the drug s as emer g ency medical pr ocedur es re quired, but the de cede nt's a irway did not close for at least five minutes afte r their arr ival. The defe ndants administered two of the drug s only afte r the dece dent had g one into anaphy lactic shock and two other medications at least seven minutes afte r arr iving. The defe ndants did not administer another medication at a ll. Kirwan, 349 I ll. App. 3d at 153. The complaint alleg ed that the delay or failure to administer the drug s violated " 'al l applicable emer g ency medical standards of car e and/or standard operating proce dures and training ' and was ' indicative of an utt er disreg ard of those standar ds and an utter indiffer ence for the life of [decede nt] .' " Kirwa

n, 349 I ll. App. 3d at 153-54. The complaint further alleg ed that the defe ndants knew that immediate administration of the drug s was require d to preve nt the dece dent from dy ing, and the defe ndants' failure to do so cause d the decedent to g o into anaphy lactic shock and cardiac

arr est and was " ' tantamount to a ref usal to rende r emer g ency treatment.' " Kirwa n, 349 I ll. App. 3d at 154. This court held that the complaint sufficie ntly alleg ed a claim of willful and wanton conduct to survive a motion to dismi ss. This case easily is disting uishable from Kirwa n. First, in Kirwa

n, the willful-and- wantonconduct claim was challeng ed with a motion to dismiss , ra t h er than with a motion for summary judgme nt, like in this case . Motions for summary judgme nt and to dismiss are tested under differ ent standards. Sec ond, the complaint in K irwan alleg ed fa cts that the def endants kne w of the spe cific risk to the dece dent of not acting quickly , while in this case , plaintiff has failed to alleg e t h at defe ndant had any knowledg e, constructive or actua l, that would have aler ted it to the risk of a ball passing throug h the protec tive scre en and injuring plaintiff.

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Finally , plaintiff' s relianc e on Palmer v. Chicag o Park District, 277 I ll. App. 3d 282 (1995), also is misplaced. I n Palmer, the plaintiff sued the Chicago Park District for injuries alleg edly

cause d by willful a

nd wanton conduct. The c omplaint alleg ed that, on the date of the incident and for three months prior there to, a wire mesh fenc e 30 fee t long and 3 fee t hig h had been ly ing on its side along the edg e of a playlot. Palmer, 277 I ll. App. 3d at 284. Sections of the wire fenc ing had torn and wer e ly ing " ' in the form of loops' " on the g round and sidewalk. Palmer, 277 I ll. App. 3d at 284. The fallen fenc e was supposed to run along the edg e of the playlot to protec t children from traff ic on the adjac ent street. On the date of the incident, the plaintiff and his two-y ear -old daug hter

wer e at the park, and the toddler ran throug h the fallen fenc e toward the street. The plaintiff chase d her, tripped on a sectio n o f t h e fe n ce , and broke his leg

. Palmer, 277 I ll. App. 3d at 285. The appellate court held that the complaint stated a claim of willful and wanton conduct, as "[c]ommon

sense dictates that [t he] defe ndant' s employ ees, who inspected the p laylot daily , simply could not have missed seeing a fenc e 3 fee t high and 30 fee t long that had been ly ing on its side on the wester ly edg e of the playlot for a three -month period prior to plaintiff' s injury ." (Emphasis omitted.) Palmer, 277 I ll. App. 3d at 288. I n Palmer, the complaint stated a claim of willful and wanton conduct based

on the alleg ation that the defe ndant did nothing to fix t h e p ro t ec t i ve fenc e even though the defe ndant' s employ ees inspected the are a around the fenc e daily for th r e e months befor e the incident. Thus, Palmer illust rate s how failing to act despite having actua l knowledg e of a risk can amount to willful and wanton conduct. I n this case , there was no evidenc e to support plaintiff' s alleg ation that defe ndant had any knowledg e of the risk that plaintiff might be injured by a ball passing throug h the protec tive scre en; and ther efor e this case is factua lly distinguishable. For the pre cedingrea sons, the judgme nt of the circ uit court of L ake County is affirme d.

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Affir med. HUTCHI NSON and SCHOSTOK, JJ ., concur .

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