dissenting:
The majority has misapplied the law of pleading, and I am compelled to dissent.
The complaint alleges that the school district knew of the protruding nails. Alternatively, the pleader states that the school district should have known of the protruding nails. The majority focuses on the second alternative and claims that the complaint fails to state a cause of action for wilful and wanton conduct. My thesis is that the first alternative premised upon actual knowledge states a good cause of action for wilful and wanton conduct; I also believe that the second alternative is sufficient to state a good cause of action for wilful and wanton conduct. I go even further and claim that if a good cause for wilful and wanton conduct is not stated by the complaint, then a good cause for negligence is stated.
Even the casual reader will see that the majority is wrong when it states that the complaint “fails to assert either knowledge or recklessness.” Knowledge of the dangerous condition is clearly stated in the complaint. I trust that all would agree that a school district is guilty of wilful and wanton conduct if it knows that its school ground equipment has nails protruding from it, fails to correct the situation, fails to warn of it, and a nine-year-old student rips himself upon a nail. Please reread the quotation from Rowe v. Frazer (1967), 83 Ill. App. 2d 367, 377, 227 N.E.2d 781, 786, quoted by the majority.
Defendant has argued in this court that the “should have known” language of the complaint is a standard for negligence. The majority adopts this view and claims that the complaint is deficient because it fails to assert recklessness. The majority says that we are to “see” Turner v. Commonwealth Edison Co. (1976), 35 Ill. App. 3d 331, 341 N.E.2d 488.1 have seen it, and it says that under the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, par. 60 et seq.) the word “wilfully” is synonymous with “knowingly.” A person will be deemed to have known that which he reasonably should have known. Liability under the Act exists where the existence of dangerous conditions could have been ascertained by the exercise of reasonable care. The court concluded in Turner, from the evidence a jury could find, and did find “that the defendant knew, or should have known” of dangerous operations and conditions. 35 Ill. App. 3d 331, 335, 341 N.E.2d 488, 492.
Further, in determining whether plaintiff in Turner had produced sufficient evidence of wilful and wanton conduct under another count, the appellate court concluded that he had not. But the court agreed with plaintiff that the knowledge of a defendant could be either actual or constructive. The opinion in Turner does not support the majority’s conclusion that recklessness must be alleged.
Legal conclusions such as “negligence,” “wilful and wanton conduct,” “recklessness” need not be alleged.
Section 42(2) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 42(2)) states clearly and unequivocally:
“No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet.”
The characterization of acts as “wilful and wanton,” “reckless,” or “negligent” is not necessary. In a cause based on negligence, no specific form of words is required to state the negligence on which the action is based. (Miller v. S.S. Kresge Co. (1922), 306 Ill. 104, 137 N.E. 385; 2 Nichols, Illinois Civil Practice §961 (Rev. ed. 1979).) There need not be an express allegation that the act was “negligent.” It is the facts alleged that are important. If from the alleged facts a judge can see that all elements of the cause of action are stated, then characterizations are unimportant and the complaint will survive a motion to dismiss for failure to state a cause of action. If the facts are said to be negligence, and don’t show it, then the characterization as negligence is equally unimportant and the complaint is subject to the motion. What has been said as to negligence applies equally as well as to the other two characterizations.
It must be beyond dispute that “should have known” knowledge is sufficient for wilful and wanton conduct. (Turner; Restatement (Second) of Torts §500; Prosser, Torts §34 (4th ed. 1971).) The difference between wilful and wanton conduct or negligence is a difference of degree only. Whether or not there has been wilful and wanton conduct in any given case necessitates close scrutiny of the facts as disclosed by the evidence. Myers v. Krajefska (1956), 8 Ill. 2d 322, 134 N.E.2d 277.
I would hold that the allegations of the complaint state a good cause of action because the school district either knew or should have known of the dangerous condition.
Finally, we come to my contention that a count mislabeled as wilful and wanton conduct will withstand a motion to dismiss if it states another good cause of action — in this case, negligence. Here is the law:
“On a motion to dismiss a complaint for insufficiency, every intendment and fair inference is in favor of the pleadings, and if under any aspect of the facts stated the plaintiff could recover, the motion should be denied. (See Kenneke v. First National Bank (1978), 65 Ill. App. 3d 10, 382 N.E.2d 309; Matchett v. Rose (1976), 36 Ill. App. 3d 638, 344 N.E.2d 770.) A motion to dismiss should be denied if a good cause of action is stated, although not the one intended by plaintiff. (2 Nichols, Illinois Civil Practice §1413 (1961).) Although count I is denominated by plaintiff a cause of action for trespass, we find it sufficient as an action to enjoin interference with a leasehold interest, including easements appurtenant thereto, to withstand a motion to dismiss.” Great Atlantic & Pacific Tea Co. v. La Salle National Bank (1979), 77 Ill. App. 3d 478, 482, 395 N.E.2d 1193, 1196-97.
“Plaintiffs contend that defendant Packerland should be held liable under count II for intentionally hiring an unstable driver, while defendant Packerland argues that plaintiffs are attempting to espouse a theory of negligent hiring in count II. We agree that our courts recognize a cause of action for negligent or reckless hiring of an employee who commits a criminal or intentional act outside the scope of employment. (Tatham v. Wabash R.R. Co. (1952), 412 Ill. 568, 107 N.E.2d 735; Becken v. Manpower, Inc. (7th Cir. 1976), 532 F.2d 56.) However, we construe count II to allege an entrustment theory; that defendant Packerland wilfully, wantonly, or intentionally entrusted its truck to a driver it knew or should have known was emotionally and mentally unstable and unsuitable, had a disposition for intentional conduct which would cause or strike fear into other persons using roadways reserved for the general public, and was probably insane. A motion to dismiss does riot lie if a good cause of action is stated, although not the one intended by plaintiff(s). Browning v. Heritage Insurance Co. (2d Dist. 1975), 33 Ill. App. 3d 943, 947, 338 N.E.2d 912; Nichols, Illinois Civil Practice §1413 (1961).” Rosenberg v. Packerland Packing Co. (1977), 55 Ill. App. 3d 959, 964, 370 N.E.2d 1235, 1239.
No one appears to dispute that this boy could recover for the school district’s simple negligence in failing to maintain its equipment, upon proper proof. Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323.
I also note the rule that unnecessary allegations (e.g., wilful and wanton) are surplusage and can be disregarded. The test is whether the alleged surplusage could be stricken and still leave a good pleading. 2 Nichols, Illinois Civil Practice §766 (Rev. ed. 1979).
The substantive effect of the majority opinion is to impose a strict, even formalistic, pleading rule upon the minor plaintiff. I dissent.