T.K., a Minor, By And Through His Natural Father and Next Friend, Timothy Killings et al v. Boys & Girls Club of America et al

Filing 38

OPINION: Defendants Boys & Girls Club of America and Boys & Girls Club of Decatur, Inc.'s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count I of the Second Amended Complaint (d/e [ 32]) is GRANTED IN PART and DENIED IN PART. Count II of Plaintiffs' Second Amended Complaint is DISMISSED WITHOUT PREJUDICE. Further, the Court STRIKES paragraph 27 of Plaintiffs' Second Amended Complaint as duplicative. Defendant Mary K. Paulin's Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count IV of the Second Amended Complaint (d/e 33 ) is DENIED. Pursuant to Rule 12(a)(4)(A) of the Federal Rules of Civil Procedure, Defendants have 14 days from the date they receive a copy of this Order to file an answer to Plaintiffs' Second Amended Complaint. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 6/6/2017. (GL, ilcd)

E-FILED

Wednesday, 07 June, 2017 09:06:44 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
OF THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
T.K., a minor, by and through his
natural Father and Next Friend,
TIMOTHY KILLINGS, and
TIMOTHY KILLINGS, individually,
Plaintiffs,
v.
BOYS & GIRLS CLUBS OF
AMERICA, BOYS AND GIRLS
CLUB OF DECATUR, INC., and
MARY K. PAULIN,
Defendants.

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Case No. 16-cv-03056

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Before the Court are Defendants Boys & Girls Clubs of
America and Boys & Girls Club of Decatur, Inc.’s Combined Rule
12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f)
Motion to Strike Portions of Count I of the Second Amended
Complaint (d/e 32) and Defendant Mary K. Paulin’s Combined Rule
12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f)
Motion to Strike Portions of Count IV of the Second Amended
Complaint (d/e 33). The motion filed by Defendants Boys and Girls
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Club of Decatur, Inc. (Decatur Boys & Girls Club) and Boys & Girls
Clubs of America (America Boys & Girls Club) is GRANTED IN PART
and DENIED IN PART. Defendant Paulin’s motion is DENIED. In
the Second Amended Complaint, T.K., a minor, through his father,
Timothy Killings, sufficiently pleads negligence and willful and
wanton misconduct causes of action against all Defendants. In
addition, Mr. Killings pleads cognizable claims for T.K.’s past and
future medical expenses against all Defendants. However, the
allegations of the Second Amended Complaint are not sufficient to
render the doctrine of res ipsa loquitur applicable against Decatur
Boys & Girls Club or America Boys & Girls Club.
I. BACKGROUND
The following facts come from Plaintiffs’ Second Amended
Complaint. The Court accepts them as true at the motion to
dismiss stage. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th
Cir. 2008).
On July 17, 2015, T.K., a then-eight-year-old resident of
California, was a member of Decatur Boys & Girls Club, a corporate
citizen of Illinois and a licensed child-care facility. On that same
date, Decatur Boys & Girls Club was operating a summer camp
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through its agents and employees, and T.K. was under the paid
care and supervision of Decatur Boys & Girls Club and America
Boys & Girls Club. America Boys & Girls Club, a corporate citizen
of Georgia, provides operating policies, procedures, rules,
guidelines, and instructions regarding how Decatur Boys & Girls
Club is to operate. Decatur Boys & Girls Club is required to follow
these operating policies, procedures, rules, guidelines, and
instructions.
On July 17, 2015, T.K. was taken from the premises of
Decatur Boys & Girls Club in Decatur, Illinois, to property in
Clinton, Illinois, owned by Defendant Paulin, an Illinois citizen.
Neither Decatur Boys & Girls Club nor America Boys & Girls Club
had permission to transport T.K. from Decatur to Defendant
Paulin’s property in Clinton. Defendants,1 again without
permission, put T.K. on a farm trailer owned by Defendant Paulin
and located on Defendant Paulin’s property. The farm trailer was
not designed or intended to transport people, and the trailer lacked
guardrails, seats, seatbelts, and other equipment that might

The use of “Defendants” in this Opinion will refer collectively to Decatur Boys
& Girls Club, America Boys & Girls Club, and Mary K. Paulin.
1

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prevent people from falling off it. Defendant Paulin pulled the
trailer, with T.K. and 15 to 20 additional children riding on it, onto
a public highway with a tractor Defendant Paulin owned. The
trailer was not being used in connection with a parade or a farmrelated activity.
While riding on the trailer, T.K. fell or jumped off the trailer or
was pushed off. As a result, T.K. sustained injuries to his head,
face, eyes, chest, neck, back, arms, lungs, hands, legs, and feet.
T.K. underwent medical treatment for his injuries and will have to
undergo additional treatment in the future. T.K’s father, Timothy
Killings, a citizen of California, has incurred expenses related to his
son’s medical care and will incur additional expenses in the future
for his son’s future medical care.
On March 3, 2016, Plaintiffs filed their Complaint (d/e 1)
against Defendants. Plaintiffs subsequently filed their First
Amended Complaint (d/e 26) on May 23, 2016, and their Second
Amended Complaint (d/e 31) on June 17, 2016. The Second
Amended Complaint contains five counts. Counts 1 through 3
allege claims against Decatur Boys & Girls Club and America Boys
& Girls Club for, respectively, negligence, negligence based on the
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doctrine of res ipsa loquitur, and willful and wanton misconduct.
Counts 4 and 5 allege negligence and willful and wanton
misconduct claims, respectively, against Defendant Paulin.
On June 27, 2016, Decatur Boys & Girls Club and America
Boys & Girls Club filed their Combined Rule 12(b)(6) Motion to
Dismiss Complaint and Alternative Rule 12(f) Motion to Strike
Portions of Count I of the Second Amended Complaint, asking the
Court to dismiss Counts 1 through 3 for failing to state cognizable
claims or, in the alternative, to strike certain paragraphs of the
Second Amended Complaint. On June 30, 2017, Defendant Paulin
filed her Combined Rule 12(b)(6) Motion to Dismiss Complaint and
Alternative Rule 12(f) Motion to Strike Portions of Count IV of the
Second Amended Complaint, asking the Court to dismiss Counts 4
and 5 for failing to state cognizable claims or, in the alternative, to
strike certain paragraphs of the Second Amended Complaint.
II. JURISDICTION
This Court has original jurisdiction over Plaintiffs’ claims
because no Plaintiff is a citizen of the same state as any Defendant
and Plaintiffs are seeking damages in excess of $75,000. See 28
U.S.C. § 1332(a)(1); McMillian v. Sheraton Chi. Hotel & Towers, 567
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F.3d 839, 844 (7th Cir. 2009) (“When the jurisdictional threshold is
uncontested, we generally will accept the plaintiff’s good faith
allegation of the amount in controversy unless it appear[s] to a legal
certainty that the claim is really for less than the jurisdictional
amount.”) (internal quotation marks omitted).
III. LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Plausibility means alleging factual content that allows a
court to reasonably infer that the defendant is liable for the alleged
misconduct. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547
(2007). A plaintiff’s complaint must suggest a right to relief,
“raising that possibility above a speculative level.” Kubiak v. City of
Chicago, 810 F.3d 476, 480 (7th Cir. 2016). “The required level of
factual specificity rises with the complexity of the claim.” McCauley
v. City of Chicago, 671 F.3d 611, 616-17 (7th Cir. 2011).
When faced with a Rule 12(b)(6) motion to dismiss, the Court
“accept[s] as true all of the well-pleaded facts in the complaint and
draw[s] all reasonable inferences in favor of the plaintiff.” Roberts
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v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016). “[L]egal
conclusions and conclusory allegations merely reciting the elements
of the claim are not entitled to this presumption of truth.”
McCauley, 671 F.3d at 616. Further, the Court is “not obliged to
ignore any facts set forth in the complaint that undermine the
plaintiff’s claim.” R.J.R. Servs., Inc. v. Aetna Cas. & Sur. Co., 895
F.2d 279, 281 (7th Cir. 1989). The Court may “strike from a
pleading . . . any redundant, immaterial, impertinent, or scandalous
matter.” Fed. R. Civ. Pro. 12(f).
IV. ANALYSIS
A.

Count I and Count IV Sufficiently Plead Negligence and
Medical Expense Claims Against All Defendants.
1.

T.K. has pleaded cognizable negligence claims against all
Defendants.

In a case where federal jurisdiction is based on diversity of
citizenship under 28 U.S.C. § 1332, “[s]tate substantive law applies,
but federal procedural rules govern.” Doermer v. Callen, 847 F.3d
522, 529 (7th Cir. 2017). “To state a claim for negligence under
Illinois law, a plaintiff must plead that the defendant owed plaintiff
a duty, it breached that duty, and the breach proximately caused
plaintiff's injury.” Allstate Indem. Co. v. ADT LLC, 110 F. Supp. 3d
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856, 862–63 (N.D. Ill. 2015) (citing Simpkins v. CSX Transp., Inc.,
965 N.E.2d 1092, 1097 (Ill. 2012). In Illinois, “every person owes to
all other persons a duty to exercise ordinary care to guard against
injury which naturally flows as a reasonably probable and
foreseeable consequence of his act.” Jane Doe-3 v. McLean Cnty.
Unit Dist. No. 5 Bd. of Dirs., 973 N.E.2d 880, 890 (Ill. 2012).
Whether this duty arises in a particular context depends on “the
reasonable foreseeability of the injury, the likelihood of the injury,
the magnitude of the burden of guarding against the injury, and the
consequences of placing the burden on defendants.” Id. A child’s
caretaker has a duty to protect the child from harm. Ryan v.
Yarbrough, 823 N.E.2d 259, 262 (Ill. App. Ct. 2005). Whether a
duty exists is a question of law to be decided by the Court.
Simpkins, 965 N.E.2d at 1096.
In support of his negligence claims against America Boys &
Girls Club and Decatur Boys & Girls Club, T.K.2 alleges that he was
a member of Decatur Boys & Girls Club and was entrusted to the
care of both organizations on July 17, 2015. Sec. Am. Complaint,
Plaintiffs do not separate T.K’s claims from Mr. Killings’ claims in the Second
Amended Complaint. To avoid confusion, the Court will address the allegations
of the Second Amended Complaint as those of T.K. when analyzing T.K’s claims
and as those of Mr. Killings when analyzing Mr. Killings’ claims.
2

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¶¶ 15-16. America Boys & Girls Club and Decatur Boys & Girls
Club agreed to accept the “care, custody, and control” of T.K. for the
purpose of providing child care. Id. ¶ 16. T.K. also alleges that on
July 17, 2015, the relationship between him and America Boys &
Girls Club and Decatur Boys & Girls Club imposed on the two
organizations a duty of care to adequately supervise him and
protect him from harm, any unreasonable risk of harm, dangerous
instrumentalities, and dangerous conditions. Id. ¶¶ 42-43.
Further, according to T.K., America Boys & Girls Club and
Decatur Boys & Girls Club breached the duty of care they owed him
in several ways, including by (1) negligently supervising him, (2)
allowing and causing him to be placed on a farm trailer that was
not designed for transporting children and was therefore dangerous
and not reasonably safe for him, (3) failing to warn or failing to
adequately warn him of the potential for injury before putting him
on the trailer, (4) failing to properly supervise the minors they
placed on the trailer, and (5) failing to provide enough staff
members to monitor the children they placed on the trailer. Id. ¶
45. With respect to America Boys & Girls Club, T.K. further alleges
that it failed to properly train Decatur Boys & Girls Club on the
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operating policies, procedures, rules, guidelines, and instructions of
America Boys & Girls Club and that it failed to supervise Decatur
Boys & Girls Club to ensure that the operating policies, procedures,
rules, guidelines, and instructions were followed. Id. ¶¶ 46-47. In
addition, T.K. claims that the actions of America Boys & Girls Club
and Decatur Boys & Girls Club proximately caused his injuries. Id.
¶¶ 33-39, 49.
In support of his negligence claim against Defendant Paulin,
T.K. alleges that on July 17, 2015, Defendant Paulin put him on the
farm trailer even though Defendant Paulin did not have the
requisite permission to give him a ride on the trailer. Sec. Am.
Complaint, ¶¶ 21, 23. Defendant Paulin towed the trailer, while
T.K. and 15 to 20 additional children were on board, with a tractor
onto a public highway. Id. ¶¶ 28-29. According to T.K., Defendant
Paulin owed him a duty of care to protect him from any
unreasonable risk of harm and breached that duty by (1) allowing
and causing him to be placed on a farm trailer that was not
designed for transporting children and was therefore dangerous and
not reasonably safe for him; (2) failing to warn him of the potential
for injury before putting him on the trailer and pulling the trailer
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onto a public highway; (3) failing to warn him that the trailer was
dangerous and not reasonably safe given that the trailer had no
railings, barriers, walls, or seats; and (4) creating a dangerous
condition by placing him on the trailer and pulling it onto a public
highway. Id. ¶¶ 72-73. In addition, T.K. alleges that the actions of
Defendant Paulin proximately caused his injuries. Id. ¶¶ 33-39, 75.
Based on these allegations, T.K. has sufficiently pleaded
negligence claims against Decatur Boys & Girls Club, America Boys
& Girls Club, and Defendant Paulin. The allegations in Count I and
Count IV of the Second Amended Complaint give Defendants notice
of the basis for T.K.’s negligence claims against them and are
sufficient to establish that T.K. has a plausible, as opposed to
speculative, right to relief against Defendants. This is all that is
required of a plaintiff under the federal notice pleading regime. See
Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 547.
Defendants do not seem to dispute such a finding. Indeed,
their arguments for the dismissal of Count I and Count IV focus on
the allegations in the Second Amended Complaint relating to an
alleged violation of 625 Ill. Comp. Stat. 5/11-1408, a provision of
the Illinois Vehicle Code, and claims that their alleged statutory
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violations constitute negligence per se. See Mot. to Dismiss (d/e
32), at 1-2; Memorandum of Law (d/e 21), at 4-6; Mot. to Dismiss
(d/e 33), at 1-2; Memorandum of Law (d/e 34), at 1-2. Defendants
are correct that Illinois does not recognize statutory violations as
negligence per se. See Kalata v. Anheuser-Busch Companies, Inc.,
581 N.E.2d 656, 661 (Ill. 1991) (“A violation of a statute or
ordinance designed to protect human life or property is prima facie
evidence of negligence. . . . The violation does not constitute
negligence per se, however, and therefore the defendant may prevail
by showing that he acted reasonably under the circumstances.”).
But the inclusion of allegations regarding violations of 625 Ill.
Comp. Stat. 5/11-1408 and negligence per se do not require the
dismissal of Count I or Count IV. As the Court has explained
above, T.K. has sufficiently pleaded negligence claims against
Defendants without the allegations relating to statutory violations.
Cf. Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th
Cir. 1992) (“[T]he complaint need not identify a legal theory, and
specifying an incorrect theory is not fatal.”).

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2.

Timothy Killings has pleaded cognizable medical expense
claims against all Defendants.

Just because T.K. has cognizable negligence claims against
Defendants does not mean that Timothy Killings, T.K.’s father, also
has such claims. To state a negligence cause of action, Mr. Killings
must plead enough facts to make it plausible that he was harmed
as a proximate result of Defendants’ breach of a duty they owed to
him. Allstate, 110 F. Supp. 3d at 862–63. Mr. Killings has failed to
meet his burden. The fact that Defendants were responsible for
T.K.’s well-being on July 17, 2015, does not mean that Defendants
had any duty to Mr. Killings. See Bruntjen v. Bethalto Pizza, LLC,
18 N.E.3d 215, 231 (Ill. App. Ct. 2014) (“The criterion in a duty
analysis is whether a plaintiff and a defendant stood in such a
relationship to each other that the law imposed an obligation upon
the defendant to act for the protection of the plaintiff.”). It was T.K.,
not Mr. Killings, who was placed on an unsafe farm trailer and
pulled onto a public road. Defendants therefore had a duty to
exercise ordinary care to prevent injury to T.K., not Mr. Killings.
Further, Mr. Killings does not claim that he was physically injured
as a result of Defendants’ negligence; his only claimed injury is the
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money he has spent and the money he will spend in the future for
T.K.’s past and future medical treatment. See Sec. Am. Complaint,
¶¶ 38-39. In short, Mr. Killings has not met the pleading
requirements for a negligence claim against any Defendant.
But just because Mr. Killings has not pleaded cognizable
negligence claims against Defendants does not mean that he has
pleaded no cognizable claims against them. In Illinois, parents have
a cause of action against a tortfeasor who injures their child and
causes them to incur medical expenses. Pirrello v. Maryville Acad.,
Inc., 19 N.E.3d 1261, 1264 (Ill. App. Ct. 2014). The claim is not
one for damages stemming from the child’s physical injury, but one
founded on the parents’ liability for the minor’s medical expenses
under the Illinois Family Expense Act. Id.; see also 750 Ill. Comp.
Stat. 65/15(a)(1) (obligating parents to pay for the “expenses of the
family”). T.K. has pleaded cognizable negligence claims against
Defendants. Mr. Killings alleges that he has been saddled with bills
stemming from T.K.’s medical care, some of which he has paid, and
that he will incur additional medical bills in the future as a result of
the injuries T.K. suffered on account of Defendants’ negligence.
Sec. Am. Complaint, ¶¶ 38-39. Mr. Killings is the father of T.K., a
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minor, and is required by law to pay for T.K.’s medical expenses,
Mr. Killings has adequately pleaded claims against Defendants for
the recovery of the amounts paid or to be paid for T.K.’s past and
future medical expenses stemming from Defendants’ negligence.
One final point merits a brief discussion. In the Second
Amended Complaint, Mr. Killings alleges that he has suffered, as a
result of T.K.’s injuries, “loss of aid, comfort, society,
companionship, pleasure, and the family relationship.” Sec. Am.
Complaint, ¶ 40. However, in Illinois, a parent may not “recover for
loss of the society and companionship of a child who is nonfatally
injured.” Vitro v. Mihelcic, 806 N.E.2d 632, 633 (Ill. 2004).
Therefore, Mr. Killings has no valid claim for loss of society and
companionship in this case.
3.

The Court strikes paragraph 27 from Plaintiffs’ Second
Amended Complaint.

As an alternative to the dismissal of Count I of the Second
Amended Complaint, Defendants Decatur Boys & Girls Club and
America Boys & Girls Club ask the Court to strike paragraphs 50
through 55 of the Complaint. Mot. to Dismiss (d/e 32), at 2.
Similarly, Defendant Paulin asks the Court, as an alternative to the
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dismissal of Count IV, to strike paragraphs 76 through 81 of the
Second Amended Complaint. Mot. to Dismiss (d/e 33), at 1-2.
According to Defendants, the Court should strike these paragraphs
because they are ultimately used to claim that Defendants’ alleged
statutory violations constitute negligence per se.
Additionally, Defendants Decatur Boys & Girls Club and
America Boys & Girls Club request that the Court strike paragraph
27 from the Second Amended Complaint for being duplicative of
paragraph 25 and strike paragraphs 42, 43, 44, 48, 68, 69, and 70
because those paragraphs are legal conclusions. Mot. to Dismiss
(d/e 32), at 4. But even assuming that the aforementioned
paragraphs are legal conclusions, as opposed to factual allegations,
that is no reason to strike them from the Second Amended
Complaint. Although Plaintiffs are required to plead facts that
indicate they have a plausible, as opposed to a speculative, right to
relief, see Iqbal, 556 U.S. at 678, they are not prohibited from also
pleading legal conclusions that might help to provide Defendants
with notice of the claims brought against them or provide context
for the factual allegations. See State Farm Mut. Auto. Ins. Co. v.
Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001) (citing Neitzke v.
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Williams, 490 U.S. 319, 325 (1989)) (noting that “legal conclusions
are an integral part of the federal notice pleading regime” and that
Rule 8(b) of the Federal Rules of Civil Procedure requires parties to
respond to all allegations contained within a pleading, including
legal conclusions). Therefore, the Court strikes only paragraph 27
of the Second Amended Complaint, as it is duplicative of paragraph
25.
B.

The Allegations of Plaintiffs’ Second Amended Complaint
Are Insufficient to Render the Doctrine of Res Ipsa
Loquitur Applicable Against Decatur Boys & Girls Club and
America Boys & Girls Club.
Res ipsa loquitur is a rule of evidence applicable to a

negligence claim, not a distinct theory of recovery. Rice v. Burnley,
596 N.E.2d 105, 108 (Ill. App. Ct. 1992). Res ipsa loquitur allows
“proof of negligence by circumstantial evidence when the direct
evidence concerning cause of injury is primarily within the
knowledge and control of the defendant.” Metz v. Cent. Ill. Elec. &
Gas Co., 207 N.E.2d 305, 307 (Ill. 1965). The doctrine “is meant to
bridge an evidentiary gap when an injury could not have happened
but for the defendant’s negligence.” Buechel v. United States, 746
F.3d 753, 765 (7th Cir. 2014). Accordingly, res ipsa loquitur
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applies only when the facts “admit of the single inference that the
accident would not have happened unless the defendant had been
negligent.” Britton v. Univ. of Chi. Hosps., 889 N.E.2d 706, 709 (Ill.
App. Ct. 2008). Whether the doctrine of res ipsa loquitur applies is
a question of law to be determined by the Court. Imig v. Beck, 503
N.E.2d 324, 329 (Ill. 1986).
Under Illinois law, a plaintiff bringing a negligence claim based
on the doctrine of res ipsa loquitur must plead that he was injured
“in an occurrence that ordinarily does not happen in the absence of
negligence” and that it was caused “by an agency or instrumentality
within the defendant’s exclusive control.” Avalos-Landeros v.
United States, 50 F. Supp. 3d 921, 927 (N.D. Ill. 2014) (citing
Heastie v. Roberts, 877 N.E.2d 1064, 1076 (Ill. 2007)). Although, in
the past, a plaintiff had to allege that the “the injury occurred under
circumstances indicating that it was not due to any voluntary act or
neglect on the part of the plaintiff,” this requirement was removed
due to the adoption of comparative fault principles in Illinois.
Heastie, 877 N.E.2d at 1076. With respect to the requirement of
“exclusive control,” a defendant’s control over the instrumentality
“at the time of the alleged negligence is not defeated by lack of
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control at the time of the injury.” Darrough v. Glendale Heights
Cmty. Hosp., 600 N.E.2d 1248, 1252–53 (Ill. App. Ct. 1992).
Indeed, the doctrine of res ipsa loquitur can be appropriate if the
instrument that caused the injury was in the defendant’s exclusive
control “at a time prior to the injury and there is no change in
conditions or intervening act that could reasonably have caused the
event resulting in the injury.” Id. at 1253.
T.K. alleges that “a minor child under the care and supervision
of a registered, licensed professional child care facility does not
ordinarily sustain serious injuries when properly supervised in the
absence of negligence.” Sec. Am. Complaint, ¶ 60. Further, T.K.
claims that at the time he sustained his injuries, the farm trailer
that injured him was under the exclusive control of Decatur Boys &
Girls Club and America Boys & Girls Club. Id. ¶ 61. These
allegations are not sufficient to render the doctrine of res ipsa
loquitur applicable here. See Twombly, 550 U.S. at 545 (noting that
“a formulaic recitation of a cause of action’s elements” will not
withstand a Rule 12(b)(6) motion to dismiss). And although the
Second Amended Complaint contains numerous factual allegations
regarding the incident in which T.K. was injured, those allegations
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do not indicate a plausible right to relief for T.K. under the doctrine
of res ipsa loquitur.
Because the facts pleaded in Plaintiffs’ Second Amended
Complaint provide no support for the second prong in the res ipsa
loquitur analysis—whether an injury was caused by an object
within the defendant’s exclusive control—the Court’s res ipsa
loquitur analysis will begin and end with that prong. Even
assuming that the incident in which T.K. was injured was one that
does not ordinarily occur in the absence of negligence, T.K.’s
account of the circumstances surrounding the accident indicate
that it was Defendant Paulin, not Decatur Boys & Girls Club or
America Boys & Girls Club, who had exclusive control of the farm
trailer. According to the Second Amended Complaint, the farm
trailer that injured T.K. was owned by Defendant Paulin and located
on Defendant Paulin’s property. Defendant Paulin was the one who
pulled the trailer onto a public road with T.K. and several other
minor children on board. Defendant Paulin owned the tractor with
which the trailer was pulled. Although T.K. claims that Decatur
Boys & Girls Club and America Boys & Girls Club were responsible
for placing him on the farm trailer, he makes the same allegation
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with respect to Defendant Paulin. See Sec. Am. Complaint, ¶¶ 2223. In short, there is nothing in the Second Amended Complaint to
support T.K.’s allegation that Decatur Boys & Girls Club and
America Boys & Girls Club were in exclusive control of the farm
trailer at any time.
Based on this analysis, the Court has determined that the
factual allegations of the Second Amended Complaint are not
sufficient to render the doctrine of res ipsa loquitur applicable. In
doing so, the Court again notes that res ipsa loquitur is an
evidentiary rule, not a distinct theory of recovery. If facts uncovered
through the discovery process sufficiently support the application of
res ipsa loquitur against any Defendant, the Court will allow T.K. to
rely on the doctrine at the summary judgment stage and will allow
the trier of fact to consider and apply the doctrine as to that
Defendant.
C.

Count III and Count V Sufficiently Plead Willful and
Wanton Misconduct Claims Against the Defendants.
To state a claim under Illinois law for willful and wanton

misconduct, a plaintiff must plead facts establishing the elements
of a negligence claim—duty, breach, proximate causation, and
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harm—and “either a deliberate intention to harm or an utter
indifference to or conscious disregard for the welfare of the
plaintiff.” Kirwan v. Lincolnshire–Riverwoods Fire Protections Dist.,
811 N.E.2d 1259, 1263 (Ill. App. Ct. 2004) (quoting Adkins v. Sarah
Bush Lincoln Health Ctr., 544 N.E.2d 733, 743 (Ill. 1989)). As
noted above, T.K. has sufficiently pleaded negligence causes of
action against all Defendants. T.K. has incorporated the allegations
comprising his negligence claims into his willful and wanton
misconduct claims against Defendants. Therefore, to state claims
for willful and wanton misconduct against Defendants, T.K. need
only additionally allege either intentional or reckless willful and
wanton misconduct committed by Defendants. Reckless willful and
wanton misconduct is conduct committed with an utter indifference
of or a conscious disregard for the safety of others. Kirwan, 811
N.E.2d at 1263. To meet this standard, the defendant “must be
conscious of his conduct, and, though having no intent to injure,
must be conscious, from his knowledge of the surrounding
circumstances and existing conditions, that his conduct will
naturally and probably result in injury.” Id.
In the Second Amended Complaint, T.K. alleges that on July
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17, 2015, Decatur Boys & Girls Club and America Boys & Girls
Club placed him and 15 to 20 other minors on an unsafe farm
trailer with no guardrails, sidewalls, barriers, or seats while
providing inadequate supervision. Sec. Am. Complaint, ¶¶ 22, 65.
T.K. further alleges that the trailer was not designed to transport
people. Id. ¶ 24. T.K claims that Decatur Boys & Girls Club and
America Boys & Girls Club failed to take necessary safety
precautions and operated their summer camp recklessly or with
gross negligence. Id. ¶¶ 64, 68. According to T.K., the actions and
inaction of Decatur Boys & Girls Club and America Boys & Girls
Club were “willful, wanton, grossly negligent, careless, [and]
reckless” and “showed an utter indifference to or conscious
disregard for the safety of [T.K.].” Id. ¶ 70.
T.K. also includes several allegations in Count III about what
Decatur Boys & Girls Club and America Boys & Girls Club “knew or
should have known.” Specifically, according to T.K., Decatur Boys
& Girls Club and America Boys & Girls Club knew or should have
known that the farm trailer was unreasonably dangerous, that
additional supervision was required for the 15 to 20 children riding
on the farm trailer, and that there was no way for the children to be
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properly seated on the farm trailer. Id. ¶¶ 66-68. Decatur Boys &
Girls Club and America Boys & Girls Club also knew or should have
known that placing children on the farm trailer and pulling it with a
tractor without proper supervision posed a high probability of
serious physical harm to T.K. Id. ¶ 69.
With respect to Defendant Paulin, T.K. alleges that Defendant
Paulin placed T.K. on a farm trailer that was not designed or
intended to transport people and had no guardrails, seats, or seat
belts to prevent people from falling off it. Id. ¶¶ 23, 25-26. Further,
T.K. claims that Defendant Paulin had no intention of making sure
that T.K. was safe when she placed him on the farm trailer and
pulled it onto a public road. Id. ¶ 83. T.K. also claims that
Defendant Paulin failed to take necessary safety precautions. Id. ¶
85. Defendant Paulin’s conduct, according to T.K., was “willful,
wanton, grossly negligent, careless, [and] reckless” and showed a
“conscious disregard for the safety of [T.K.].” Id. ¶ 87.
As with Decatur Boys & Girls Club and America Boys & Girls
Club, T.K. includes allegations in the Second Amended Complaint
regarding what Defendant Paulin “knew or should have known.”
Specifically, T.K. alleges that Defendant Paulin knew or should have
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known that the farm trailer was unreasonably dangerous, that
pulling children onto a public road while on the trailer was
unreasonably dangerous, and that placing children on the farm
trailer and pulling the trailer onto a public roadway without proper
supervision posed a high probability of serious physical harm or
death. Id. ¶¶ 83-84, 86.
T.K.’s allegations are sufficient to plead willful and wanton
misconduct claims against Defendants. The Federal Rules of Civil
Procedure require that a pleading include “a short and plain
statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. Pro. 8(a)(2). A plaintiff need not plead enough facts to
show that he is likely to prevail on his claim; rather, he is required
only to include enough facts to raise his claim from speculative to
plausible. See Iqbal, 556 U.S. at 678. The allegations set forth
above are sufficient to make it plausible that Defendants committed
willful and wanton misconduct when they put T.K. on an unsafe
farm trailer not designed for transporting people, failed to take
necessary safety precautions, and either failed to properly supervise
T.K. or pulled the trailer, with T.K. on it, onto a public road. See
Worthem v. Gillette Co., 774 F. Supp. 514, 517 (N.D. Ill. 1991)
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(holding that the plaintiff had sufficiently pleaded willful and
wanton misconduct claims where she alleged that “willful and
wanton acts or omissions [were] committed or omitted with
conscious indifference to existing circumstances and conditions”
and went on to “enumerate specific instances of willful and wanton
conduct”).
Although T.K.’s “knew or should have known” allegations
against Defendants may have been insufficient to meet his pleading
burden with respect to willful and wanton misconduct claims, see
id. (admitting that the court “might agree” with the defendant’s
arguments that “knew or should have known” allegations are mere
negligence allegations insufficient to merit punitive damages), T.K.
does not rely solely on these allegations in his willful and wanton
misconduct claims against Defendants. Indeed, as the Court has
noted above, Count III and Count V of the Second Amended
Complaint, which incorporate the allegations from the counts
preceding them, contain specific factual allegations regarding the
actions Defendants took. Further, the Court does not view T.K.’s
“knew or should have known” allegations as completely irrelevant to
a willful and wanton misconduct claim under Illinois law, which
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holds that willful and wanton misconduct can be found where there
is a failure to discover a danger through carelessness when it could
have been discovered through the exercise of ordinary care. Ziarko
v. Soo Line R.R. Co., 641 N.E.2d 402, 406 (Ill. 1994).
The fact that T.K. bases his willful and wanton claims on the
same facts as his negligence claims is of no concern. Under Illinois
law, “[t]he same acts by a defendant, if sufficiently egregious, can
constitute both negligence and willful and wanton conduct.”
Bastian v. TPI Corp., 663 F. Supp. 474, 476 (N.D. Ill. 1987) (citing
Smith v. Seiber, 469 N.E.2d 231, 235 (Ill. App. Ct. 1984).
Therefore, “one can plead the same facts in two counts, one
characterizing them as negligence and the other as willful and
wanton conduct, if the same facts could support both theories.”
Bastian, 663 F. Supp. at 476 (citing O’Brien v. Twp. High Sch. Dist.
214, 415 N.E.2d 1015, 1018 (Ill. 1980).
V. CONCLUSION
For the foregoing reasons, Defendants Boys & Girls Club of
America and Boys & Girls Club of Decatur, Inc.’s Combined Rule
12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f)
Motion to Strike Portions of Count I of the Second Amended
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Complaint (d/e 32) is GRANTED IN PART and DENIED IN PART.
Count II of Plaintiffs’ Second Amended Complaint is DISMISSED
WITHOUT PREJUDICE. Further, the Court STRIKES paragraph 27
of Plaintiffs’ Second Amended Complaint as duplicative. Defendant
Mary K. Paulin’s Combined Rule 12(b)(6) Motion to Dismiss
Complaint and Alternative Rule 12(f) Motion to Strike Portions of
Count IV of the Second Amended Complaint (d/e 33) is DENIED.
Pursuant to Rule 12(a)(4)(A) of the Federal Rules of Civil Procedure,
Defendants have 14 days from the date they receive a copy of this
Order to file an answer to Plaintiffs’ Second Amended Complaint.
ENTER: June 6, 2017.
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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