dissenting.
I cannot concur with the majority’s conclusions in this case and, accordingly, I must respectfully dissent.
"The purpose of the summary judgment procedure is to permit the court to determine if there is any genuine issue of fact, but not to allow the court to decide factual issues.” (Kobus v. Formfit Co. (1966), 35 Ill. 2d 533, 538, 221 N.E.2d 633.) The underlying policy is to facilitate litigation as the procedure’s "benefits inure not only to the litigants, in the saving of time and expenses, but to the community in avoiding congestion of trial calendars and the expenses of unnecessary trials.” (Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 586, 272 N.E.2d 497.) "While use of the summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit [citation], it is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt. [Citations.] In determining the existence of a genuine issue of material fact, courts must consider the pleadings, depositions, admissions, exhibits, and affidavits on file in the case and must construe them strictly against the movant and liberally in favor of the opponent.” (Emphasis added.) (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867; see also Murphy v. Urso (1981), 88 Ill. 2d 444, 430 N.E.2d 1079.) "[W]hen an appellate court is faced with an appeal involving only the propriety of summary judgment, the de novo standard of review should be applied — the appellate court, like the trial court, determines whether there is a genuine issue of material fact.” Demos v. National Bank (1991), 209 Ill. App. 3d 655, 659-60, 567 N.E.2d 1083.
At the time of the accident, section 3 — 106 of the Local Governmental and Governmental Employees Tort Immunity Act (the Act) then provided that a local public entity, such as the school district, is not liable for an injury on a playground where liability is premised on the existence of a condition of the property "unless such local entity *** is guilty of willful and wanton negligence proximately causing such injury.” (Ill. Rev. Stat. 1979, ch. 85, par. 3 — 106 (now codified, as amended, at 745 ILCS 10/3 — 106 (West 1994)).) Illinois law has used interchangeably the terms "willful and wanton negligence,” "gross negligence,” and "willful and wanton conduct.” (Ziarko v. Soo Line R.R. Co. (1994), 161 Ill. 2d 267, 274-75, 641 N.E.2d 402.) Pursuant to section 1 — 210 of the Act, " '[wjillful and wanton conduct’ *** 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.” (745 ILCS 10/1 — 210 (West 1994).) As the majority observed, our supreme court in Ziarko adopted a "sliding-scale” approach to what "willful and wanton conduct” is and liberalized the previous standard set forth in Burke v. 12 Rothschild’s Liquor Mart, Inc. (1992), 148 Ill. 2d 429, 593 N.E.2d 522. (278 Ill. App. 3d at 269.) Thus, willful and wanton conduct is now "a hybrid between acts considered negligent and behavior found to be intentionally tortious.” Ziarko, 161 Ill. 2d at 275.
After considering the evidence and its inferences in a light most favorable to plaintiff, I believe that the trial court improperly entered summary judgment in the case as there was evidence that defendant had actual or constructive knowledge of the crumbled asphalt and the danger it posed to its children.
With regard to the loose and broken sections of asphalt at issue in this case, defendant’s director of operations testified that he personally inspected the asphalted areas of defendant’s property semi-annually and that he personally inspected the asphalt at the Edgar Allen Poe School in preparation for the 1979-80 maintenance proposal. From this evidence alone, taken in a light most favorable to plaintiff, it is not unreasonable to infer that he knew or reasonably should have known of the danger of crumbled asphalt upon which children ran races. Additionally, plaintiff testified that the edge of the blacktop had been in poor condition for the entire year. Eileen Bluemling, another student at the Edgar Allen Poe School, confirmed this fact. Instead of safeguarding this child, defendant recklessly put her in harm’s way. Any or all of these things taken together are sufficient facts which need to be submitted to a jury under Ziarko or Burke.
Accordingly, I would reverse the judgment of the circuit court of Cook County and remand this matter for further proceedings consistent with these views.