Can a Defendant's Conduct Be Considered Willful and Wanton If He Does Not Do Anything to Rectify Existing Dangerous Condition ?
In Muellman v. Chicago Park District, 233 Ill. App. 3d 1066, 1066-67, 600 N.E.2d 48, 175 Ill. Dec. 425 (1992), the plaintiff was injured when she stepped on an open pipe in Grant Park.
The evidence showed that the defendant's employees were aware of the uncovered pipes, but painted bright orange only those pipes that had the potential to damage their mowing equipment, not those upon which the general public could walk and be injured. Muellman, 233 Ill. App. 3d at 1069.
In Benhart v. Rockford Park District, 218 Ill. App. 3d 554, 555, 578 N.E.2d 600, 161 Ill. Dec. 242 (1991), the plaintiff alleged she was injured by the defendant's intentional removal of a safety feature, nonskid strips, from a wave pool.
In each of these cases, the court concluded that the defendant's conduct rose to the level of willful and wanton. Muellman, 233 Ill. App. 3d at 1069 (concluding that the trial court's entry of judgment in favor of the plaintiff was not against the manifest weight of the evidence); Benhart, 218 Ill. App. 3d at 559-60 (reversing the trial court's section 2--615 dismissal of the plaintiff's claim of willful and wanton conduct).
In Muellman, the defendant was aware of an existing dangerous condition and took steps to protect itself but consciously disregarded the safety of others by doing nothing to protect them.
In Benhart, the defendant intentionally removed an existing safety device.
In stark contrast, even assuming that defendants here were aware that the massive pile of snow would somehow create a dangerous condition of ice and snow on the sidewalk, defendants did not do anything to protect some persons and not others (Muellman), nor did defendants intentionally remove any safety device (Benhart).