dissenting:
I disagree with the majority’s conclusion that plaintiff alleged facts sufficient to support a cause of action for willful and wanton conduct. Plaintiff’s complaint alleges only that a machine-created wave caused her to injure her leg and knee because the floor of the wave pool was smooth, slippery and otherwise could not be relied upon by the plaintiff to keep her footing after being knocked over by the wave. Plaintiff also alleges that in 1987, defendant maintained the floor of the wave pool with nonslip strips or other nonslip devices designed to prevent bathers from losing their balance when being contacted by machine-created waves.
The majority concludes the definition of willful and wanton conduct set forth in section 1 — 210 of the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 210) was designed to change the existing definition set forth in O’Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, based mainly on the fact that section 1 — 210 adds language requiring a “course of action.” I do not believe the definition set forth in section 1 — 210 was intended to alter the existing law. However, this issue need not be addressed in the present case because the plaintiff fails to allege facts sufficient to support a cause of action under either definition.
Under either definition, to establish an utter indifference to or a conscious disregard for the safety of others, the complaint must allege facts establishing that defendants knew or should have known of the potential danger to bathers. (See O’Brien, 83 Ill. 2d at 469; Scarano v. Town of Ela (1988), 166 Ill. App. 3d 184, 190.) Here, the allegations are insufficient to withstand defendant’s motion to dismiss. Plaintiff does not allege intentional injury, nor does plaintiff allege that on prior occasions other bathers had been injured due to the lack of nonslip strips and that defendant knew of such injuries. Plaintiff merely alleged that nonslip devices were once maintained on the floor of the wave pool, but were removed. The act of removing the strips is not in and of itself sufficient to support this cause of action. The facts as alleged fail to demonstrate willful and wanton conduct under either definition.