Zhu et al v. Keeley & Sons, Inc., et al

Filing 111

ORDER DENYING 80 , 82 , 83 , and 84 Motions to Dismiss. See attached Order for further details. Signed by Magistrate Judge Mark A. Beatty on 3/12/2025. (scm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
YAFENG ZHU & SHUHUI ZHANG,
Plaintiffs,
vs.
KEELEY & SONS, INC., et al.,
Defendants.

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Case No. 3:24-CV-908-MAB

MEMORANDUM AND ORDER
BEATTY, Magistrate Judge:
Presently before the Court are four Motions to Dismiss filed by Defendants Keeley
& Sons, Inc. (Doc. 80), Kilian Corporation (Doc. 82), Kilian Transport (Doc. 83), and
Asphalt Sales & Products, Inc. (Doc. 84), all of which seek the dismissal of the “willful
and wanton conduct” claims raised against them in Plaintiffs’ Second Amended
Complaint (see Doc. 78). For the reasons set forth below, the motions to dismiss are
DENIED (Docs. 80, 82, 83, 84).
BACKGROUND1
Plaintiffs Yafeng Zhu and Shuhui Zhang filed this action in March 2024 for alleged
damages related to an incident that occurred in April 2022 (see Doc. 1). Specifically,
Plaintiffs allege that at approximately 12:21 a.m. on April 1, 2022, Plaintiff Zhu was
traveling westbound on a two-lane section of Interstate 70 in Bond County, Illinois, as

1 This matter is currently before the Court on

Defendants’ Motions to Dismiss (Docs. 80, 82, 83, 84).
Therefore, the Court takes all well-pleaded factual allegations in Plaintiffs’ Seconded Amended Complaint
(Doc. 78) as true and draws all permissible inferences in Plaintiffs’ favor. See, e.g., Dix v. Edelman Fin. Servs.,
LLC, 978 F.3d 507, 512-13 (7th Cir. 2020).

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part of his employment (Doc. 78 at p. 6). The right lane of the highway contained
markings for ongoing construction, but no construction work was being performed at
that time (Id.). At or near milepost 37.6 westbound, there was a manmade pothole that
was only marked by cones in the right lane (Id.). However, the pothole protruded into
the left lane without any signs or warnings (Id.). As a result, Plaintiff Zhu’s vehicle
crashed into the manmade pothole, causing the vehicle to flip onto its side and Plaintiff
Zhu to suffer severe injury and expense (Id. at pp. 7-8).
An Illinois State Police Trooper responded to the incident and in doing so, notified
an Illinois Department of Transportation dispatcher that the construction zone was “NOT
marked well with barriers and there is a 1 foot drop off.” (Id. at p. 8). Plaintiffs allege that
each of the named contractor Defendants were contracted on, and responsible for, the
construction zone where the incident occurred (Id.).
Several months after filing this action, Plaintiffs filed a First Amended Complaint
that no longer included claims against a defendant that Plaintiffs sought to voluntarily
dismiss (see Doc. 63). Thereafter, Plaintiffs filed the operative Second Amended
Complaint in August 2024 in response to the Court’s Jurisdictional Order (Doc. 78; see
also Doc. 75). As is relevant to Defendants’ four motions to dismiss, Plaintiffs’ Second
Amended Complaint includes the following counts:
Count I – Negligence (Plaintiff Zhu v. Keeley & Sons, Inc.),
Count IV – Willful & Wanton Conduct (Plaintiffs v. Keeley & Sons, Inc.),
Count V – Negligence (Plaintiff Zhu v. The Kilian Corporation),
Count VIII - Willful & Wanton Conduct (Plaintiffs v. The Kilian
Corporation),
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Count IX – Negligence (Plaintiff Zhu v. Kilian Transport, Inc.)
Count XII – Willful & Wanton Conduct (Plaintiffs v. Kilian Transport, Inc.),
Count XIII – Negligence (Plaintiff Zhu v. Asphalt Sales & Products, Inc.),
Count XVI – Willful & Wanton Conduct (Plaintiffs v. Asphalt Sales &
Products, Inc.).
(see generally Doc. 78). In response, Defendant Keeley & Sons, Inc., filed an Answer (Doc.
79) and a Motion to Dismiss Count IV of Plaintiffs’ Second Amended Complaint (Doc.
80). Thereafter, Defendant Kilian Corporation filed an Answer (Doc. 85) and a Motion to
Dismiss Count VIII of Plaintiffs’ Second Amended Complaint (Doc. 82); Defendant Kilian
Transport, Inc., filed an Answer (Doc. 86) and Motion to Dismiss Count XII of Plaintiffs’
Second Amended Complaint (Doc. 83); and Defendant Asphalt Sales & Products, Inc.,
filed an Answer (Doc. 87) and a Motion to Dismiss Count XVI of Plaintiffs’ Second
Amended Complaint (Doc. 84).2 On September 10, 2024, Plaintiffs filed responses
opposing all four of Defendants’ motions (Docs. 89, 90, 91, 92).
LEGAL STANDARD FOR MOTION TO DISMISS
A motion to dismiss under Rule 12(b)(6) addresses the legal sufficiency of the
plaintiff’s claim for relief, not the merits of the case or whether the plaintiff will ultimately
prevail. Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014); Gibson v.
City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In reviewing a motion to dismiss, the

2 Notably, all four of the motions to dismiss seek dismissal of specific counts raised in Plaintiffs’ Second

Amended Complaint (i.e., Doc. 78), but then cite to Plaintiffs’ First Amended Complaint (i.e., Doc. 63).
Whether Defendants’ citation to Doc. 63, the First Amended Complaint, was a mere clerical error or made
for some other reason, this mistake is inconsequential because the counts (and even page/paragraph
numbers) are identical between the First and Second Amended Complaints (compare Doc. 63 with Doc. 78).
Therefore, for purposes of judicial economy, the Court has not required Defendants to amend their motions
to fix this minor error. See, e.g., Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1539 (8th Cir. 1996) (“Where
the parties’ intentions are clearly defined and ‘all the court need do is employ the judicial eraser to obliterate
a mechanical or mathematical mistake, the modification will be allowed.’”).

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Court accepts all well-pleaded facts as true and draws all reasonable inferences in the
plaintiff’s favor. E.g., Dix v. Edelman Fin. Servs., LLC, 978 F.3d 507, 512-13 (7th Cir. 2020).
However, “legal conclusions and conclusory allegations . . . are not entitled to this
presumption of truth.” Dix, 978 F.3d at 513 (quoting McCauley v. City of Chicago, 671 F.3d
611, 616 (7th Cir. 2011)). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombley, 550 U.S, 555, 557 (2007)). “[W]hile a complaint does not need
‘detailed factual allegations’ to survive a 12(b)(6) motion to dismiss, it must allege
sufficient facts ‘to state a claim to relief that is plausible on its face.’” Dix, 978 F.3d at 51213 (quoting League of Women Voters of Chicago v. City of Chicago, 757 F.3d 722, 724 (7th Cir.
2014)).
DISCUSSION3
Defendants each argue that the respective count alleging willful and wanton
conduct against them (i.e., Counts IV, VIII, XII, and XVI) should be dismissed because
Plaintiffs’ allegations “do not amount to an intention to harm and a conscious disregard
for Plaintiffs’ welfare.” (Doc. 80 at p. 2; Doc. 82. at p. 2; Doc. 83 at p. 2; Doc. 84 at p. 2).
Further, Defendants aver that the allegations raised by Plaintiffs merely support claims
of negligence, which were separately raised against them in Counts I, V, IX, and XIII (Id.).
In response, Plaintiffs contend that they have pleaded sufficient facts to support their
willful and wanton conduct claims and Defendants’ arguments misconstrue the
applicable law (see Docs. 89, 90, 91, 92).

3 All four of Defendants’ motions and likewise, all four of Plaintiffs’ responses, are nearly - if not entirely –

identical to one another. Therefore, to avoid unnecessary redundancy, the Court has considered all four
motions together.

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Under Illinois law, willful and wanton conduct is regarded as an aggravated form
of negligence and there is no separate and independent tort of willful and wanton
conduct. See Krywin v. Chicago Transit Auth., 938 N.E.2d 440, 452 (Ill. 2010). “To recover
damages based upon a defendant’s alleged negligence involving willful and wanton
conduct, the plaintiff must allege and prove that the defendant owed a duty to the
plaintiff, that the defendant breached the duty, and that the breach was the proximate
cause of the plaintiff’s injury.” Id. In addition, to adequately plead willful and wanton
conduct, “a plaintiff must allege either a deliberate intention to harm or an utter
indifference to or conscious disregard for the welfare of the plaintiff.” Doe ex rel. OrtegaPiron v. Chicago Bd. of Educ., 820 N.E.2d 418, 423 (Ill. 2004). “Courts determine whether
conduct is willful and wanton on a case-by-case basis, as ‘[w]illful and wanton conduct
is not a static concept’ but instead ‘exists along a continuum.’” Doe v. Bd. of Educ. of City
of Chicago, 22 C 583, 2024 WL 4041318, at *5 (N.D. Ill. Sept. 4, 2024) (quoting Winfrey v.
Chi. Park Dist., 654 N.E.2d 508, 512 (Ill. App. 1995)). “Whether particular conduct can be
characterized as willful and wanton depends on each case’s facts and ordinarily presents
a question of fact for the jury to determine.” Baumrucker v. Express Cab Dispatch, Inc., 84
N.E.3d 482, 494 (Ill. App. 2017).
Notably, Defendants’ motions acknowledge Plaintiffs’ related negligence claims
and have not challenged their sufficiency (see, e.g., Doc. 80 at pp. 1-2; see also Doc. 89 at p.
4). As such, the Court only briefly mentions that Plaintiffs’ negligence and willful and
wanton claims sufficiently plead that: (1) Defendants owed Plaintiffs a duty, (2)
Defendants breached that duty; and (3) the breach was the proximate cause of Plaintiffs’
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injuries (see generally Doc. 78). Accordingly, the Court focuses upon whether Plaintiffs’
willful and wanton claims raised in Counts IV, VIII, XII, and XVI adequately “allege
either a deliberate intention to harm or an utter indifference to or conscious disregard for
the welfare of the plaintiff.” Doe ex rel. Ortega-Piron, 820 N.E.2d at 423 (emphasis added).4
See also Spinka v. Drake, 14-CV-583-DRH-PMF, 2016 WL 1258460, at *2 (S.D. Ill. Mar. 31,
2016) (“To sufficiently plead willful and wanton conduct, a plaintiff must allege not only
duty, breach, and proximate cause, but also that the defendant engaged in a course of
action that showed a deliberate intention to harm or an utter indifference to or conscious
disregard for the plaintiff’s welfare.”). And here, because Plaintiffs have not pleaded facts
establishing that Defendants intentionally sought to harm them, whether Plaintiffs’ have
sufficiently pleaded willful and wanton conduct is dependent upon whether the Second
Amended Complaint adequately alleges Defendants’ utter indifference or conscious
disregard to Plaintiffs’ welfare.5
Analyzing the Second Amended Complaint, Plaintiffs have alleged: (1) that
Defendants were aware vehicles, including trucks like the one driven by Plaintiff Zhu,

4 To the extent Defendants may have misconstrued this standard, the Court emphasizes the “either – or”

portion of this quotation to make it clear that Plaintiffs were not required to plead both an intent to harm
and a conscious disregard. A plaintiff alleging a claim of willful and wanton conduct does not need to
allege a deliberate intent to harm so long as the plaintiff adequately alleges utter indifference to or a
conscious disregard for his or her welfare. See Oelze v. Score Sports Venture, LLC, 927 N.E.2d 137, 148 (Ill.
App. 2010) (“A nonintentional willful or wanton act is committed under circumstances showing a reckless
disregard for the safety of others[.]”).
5 In other words, neither Plaintiffs’ Second Amended Complaint nor Plaintiffs’ responses have alleged
and/or argued that Defendants acted with a deliberate intention to harm Plaintiffs (see generally Doc. 78;
Doc. 89 at pp. 5-6). Accordingly, because Plaintiffs’ Second Amended Complaint “does not plead facts
establishing a deliberate intention to harm …, the issue at hand is whether [Plaintiffs have] established facts
sufficient to support an ‘utter indifference to or conscious disregard for’ [their] safety.” Spinka v. Drake, 14CV-583-DRH-PMF, 2016 WL 1258460, at *4 (S.D. Ill. Mar. 31, 2016).

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would continue to drive on the highway while the construction site was left unattended;
(2) Defendants created and/or were aware of the manmade pothole’s presence, as
evinced by their placement of cones around it in the right lane and closure of the right
lane; (3) Defendants knew that the manmade pothole protruded into left lane, yet chose
to leave that portion of the pothole unmarked; (4) Defendants knew of the difficulties in
maneuvering around the protruding pothole, particularly for large vehicles; (5)
Defendants knew that highway accidents often cause serious injury or death; and (6)
Defendants consciously disregarded the serious risk of harm the manmade pothole posed
by protruding into the left lane without any markings or warnings (see Doc. 78 at pp. 1213, 17-19, 23-24, 28-30). Put another way, Plaintiffs alleged that Defendants knew the
pothole protruded into a lane actively being used by traffic, knew of the difficulties and
impending danger the protruding pothole posed to traffic, and knew that the portion of
the pothole protruding into the left lane was not marked. See Kirwan v. LincolnshireRiverwoods Fire Prot. Dist., 811 N.E.2d 1259, 1263 (Ill. App. 2004) (“An actor’s ‘utter
indifference’ or ‘conscious disregard’ for the safety of others may be inferred from the
outrageous nature of the conduct committed.”).
Given these factual allegations, the Court concludes that Plaintiffs have
adequately alleged willful and wanton conduct on the part of Defendants. See, e.g.,
Krivitskie v. Cramlett, 704 N.E.2d 957, 960 (Ill. App. 1998) (“However, we do believe that
alleging that someone was driving too fast in the rain could support a cause of action for
willful and wanton misconduct.”); Swanson v. Murray Bros., LLC, 19-CV-3220, 2021 WL
782273, at *4 (C.D. Ill. Mar. 1, 2021) (finding a claim of willful and wanton conduct was
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sufficiently pleaded where it was alleged that the defendant driver knew the truck had
not been properly maintained and was unsafe to use on the road, yet did so anyway while
taking additional actions that disregarded the safety of others). Accordingly, Defendants’
motions seeking to dismiss Plaintiffs’ willful and wanton claims found in Counts IV, VIII,
XII, and XVI are DENIED (Docs. 80, 82, 83, 84).
CONCLUSION
For the reasons discussed above, the motions to dismiss Counts IV, VIII, XII, and
XVI filed by Defendants Keeley & Sons, Inc. (Doc. 80), Kilian Corporation (Doc. 82), Kilian
Transport, Inc. (Doc. 83), and Asphalt Sales & Products, Inc. (Doc. 84), are DENIED.
IT IS SO ORDERED.
DATED: March 12, 2025
s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge

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