Father Forfeits Appeal Of Negligence Dismissal For Failure To Reallege It In Amended Complaint

While warming up his son for a baseball game, Thomas Vilardo threw batting practice from behind a pitching screen provided by the Barrington Community School District. Vilardo’s son hit a pitch that Vilardo claimed went through a hole in the screen and hit him in the eye, causing injury.

Vilardo sued, claiming the School District was guilty of negligence and of willful and wanton conduct. The School District asked the trial court to dismiss Vilardo’s claims. The trial court dismissed Vilardo’s negligence claim because the School District was statutorily immune from a plain negligence claim.

The trial court dismissed the negligence count with prejudice (can’t re-plead it), and dismissed the willful and wanton claim without prejudice (can re-plead it). Vilardo filed an amended complaint that alleged only willful and wanton conduct against the School District. The amended complaint did not re-allege or refer to the plain negligence claim that had been dismissed.

After some discovery, the trial court ruled that the School District did not have actual or constructive knowledge of a defect in the screen. So the School District could not be guilty of willful and wanton conduct, and its request for summary judgment was granted.

Vilardo appealed from the dismissal of the negligence claim and the summary judgment on the willful and wanton action. But the School District argued that Vilardo forfeited his right to appeal the dismissal of the plain negligence claim because he did not re-plead it in the amended complaint. Vilardo argued that he was not permitted to because the trial court dismissed it with prejudice.

The Second District Illinois Appellate Court agreed with the School District. The appellate court ruled that Vilardo had forfeited an appeal of the order dismissing the negligence action because he did not re-plead it or refer to it in the amended complaint. Here is the appellate court’s thinking.

[A] party wishing to preserve a challenge to an order dismissing with prejudice fewer than all of the counts in his complaint has several options … First, the plaintiff may stand on the dismissed counts and argue the matter at the appellate level … Second, the plaintiff may file an amended complaint realleging, incorporating by reference, or referring to the claims set forth in the prior complaint … Third, a party may perfect an appeal from the order dismissing fewer than all of the counts of his or her complaint prior to filing an amended pleading that does not include reference to the dismissed counts … Plaintiff [Vilardo] pursued none of these options, and thus has forfeited review of the negligence count in this appeal.

The appellate court also agreed that Vilardo’s willful and wanton claim had no merit. So Vilardo lost the appeal because he forfeited the appeal of his negligence dismissal and the there was no evidence to sustain his willful and wanton action.

Read the whole opinion, Vilardo v. Barrington Community School District 220, No. 2-10-0045 (12/20/10), by clicking here.

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