specially concurring in part and dissenting in part:
While I concur in the majority’s affirmance of the trial court’s granting of summary judgment on counts I and II, I must respectfully dissent from the majority’s affirmance of the motion to dismiss regarding counts III and IV which, in my view, sufficiently allege willful and wanton misconduct against defendant regarding the design and maintenance of the subject midblock crosswalk.
As the majority notes, to successfully allege willful and wanton misconduct, a plaintiff must allege that the defendant engaged in a course of action that proximately caused the injury. Neither the Act nor the cases cited by the majority define “course of action,” which apparently is a term of art. Black’s Law Dictionary, Abridged Fifth Edition, and Webster’s Third New International do not list the term “course of action.” Indeed, the dissent in Benhart v. Rockford Park District, 218 Ill. App. 3d 554, 560 (1991), referred to the term, using quotation marks.
Here, plaintiffs allege that defendant acted willfully and wantonly in the following respects:
“a. Installed the crosswalk without utilizing pedestrian volume counts or average daily traffic volume counts;
(b) failed to utilize the controlled intersection of Butterfield Road and 176 and encouraged pedestrians to cross without the use of active traffic control devices on the roadway where the average daily traffic volume exceeded 20,000;
(c) encouraged users of the crosswalk to traverse Butterfield Road at an unsafe location;
(d) failed to remove the mid-block crosswalk after becoming aware of another incident where a user of the crosswalk was struck by a motorist on Butterfield Road;
(e) failed to exclusively utilize the pedestrian crosswalks with active control devices less than 240 feet from the mid-block cross.”
In essence plaintiffs allege that defendant created an inherently dangerous situation by designing and maintaining the crosswalk and did nothing to alter it after becoming aware of an injury to a person using the crosswalk. These allegations set out a reckless “course of action” taken by defendant which, if proved, would result in defendant’s liability to plaintiffs.
The majority takes plaintiffs to task for not more explicitly describing the alleged incident in which a prior user of the crosswalk was struck by an automobile. It would appear that the majority is essentially requiring plaintiffs to prove their case in the pleadings. The exact nature of the alleged prior accident and the identity of the person injured are proper subjects for discovery and are not essential in the pleadings.
Further, the cases cited by the majority are readily distinguished from the appeal at bar. In Lerma v. Rockford Blacktop Construction Co., 247 Ill. App. 3d 567 (1993), this court characterized the defendant park district’s conduct as a “nonaction” or “omission.” Lerma, 247 Ill. App. 3d at 573. The Lerma court concluded that the park district’s failure to act upon alleged knowledge of dangers did not “demonstrate a course of action showing deliberate intention to cause harm or conscious disregard for the safety of others.” Lerma, 247 Ill. App. 3d at 573.
In contrast, the alleged tortious conduct in the instant appeal involved, in part, actions or commissions on defendant’s part. Most importantly, defendant created and maintained the allegedly dangerous crosswalk. Moreover, Lerma did not involve allegations of prior injuries/deaths at the subject location in the river. Here, defendant was allegedly aware of an accident involving a motor vehicle and a person using the crosswalk.
In Koltes v. St. Charles Park District, 293 Ill. App. 3d 171 (1997), a case in which defendant’s motion for summary judgment had been granted, this court found that the defendant park district’s nonaction did not rise to the level of willful and wanton conduct. As discussed above, the instant defendant is alleged to have acted in a willful and wanton manner. Thus, Koltes is distinguishable in that regard. Further, the Koltes court also focused on the lack of evidence that the standing area in which plaintiff was situated subjected her to any more danger than any other area of the golf course. In the instant appeal, the complaint’s allegations indicate that, if plaintiff was to utilize the bike trail as intended, he had to use the midblock crosswalk, a circumstance that presumably subjected him to far greater danger than was present at other locations on the trail.
If section 1 — 210 of the Act is to be at all viable, then causes of action, such as the instant one, must be permitted to make their way past the pleading stage.