No. 2-12-1293 Opinion filed January 22, 2014 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

STEVE JIOTIS, ) Appeal from the Circuit Court ) of Du Page County. Plaintiff-Appellee, ) ) v. ) No. 11-L-1053 ) THE BURR RIDGE PARK DISTRICT and ) JOHN DOE, an Unidentified Agent or ) Employee of the Burr Ridge Park District, ) ) Defendants-Appellants ) Honorable ) Patrick J. Leston, (Edward F. Dutton, Contemnor-Appellant). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SPENCE delivered the judgment of the court, with opinion. Justices McLaren and Schostok concurred in the judgment and opinion.

OPINION

¶1 Defendants, the Burr Ridge Park District (Park District) and John Doe, and their counsel,

contemnor Edward F. Dutton, 1 appeal the trial court’s October 3, 2012, order (the discovery order)

continuing their summary judgment motion in order for plaintiff, Steve Jiotis, to conduct discovery

prior to responding to their motion. Defendants appealed this order under Illinois Supreme Court

Rule 304(b)(5) (eff. Feb. 26, 2010), after the trial court granted their motion to be held in civil 1 For purposes of this disposition, “defendants” refers to the Park District, John Doe, and

Dutton.

contempt for refusal to comply with the discovery order. Defendants appeal the contempt order

and argue that plaintiff violated Illinois Supreme Court Rule 137 (eff. July 1, 2013). For the

reasons stated herein, we determine that the trial court did not abuse its discretion in entering the

discovery order. We do not address defendants’ Rule 137 argument, because it is not properly

before us. Further, we vacate the contempt order and remand for further proceedings.

¶2 I. BACKGROUND

¶3 Defendants appeal from a civil contempt order entered at their behest. The facts of this

case are relatively simple, owing to the fact that the dispute before us is over obedience versus

abeyance of the discovery order before consideration of defendants’ motion for summary

judgment. The limited facts and procedural history are as follows.

¶4 On September 13, 2011, plaintiff filed his initial complaint against the Park District and

John Doe, seeking compensation for an injury sustained at a hayride sponsored by the Park District

at its annual Harvest Fest in September 2010. The complaint alleged that the injury occurred as

the result of negligence, that is, for patrons to enter and exit the hay wagon, the Park District

provided an unmaintained and unsafe step stool, which broke when plaintiff exited the wagon,

proximately causing his injury. The complaint alleged that John Doe, as an agent of the Park

District, operated the wagon and instructed plaintiff to use the step stool to exit the wagon. The

Park District admits in its brief that John Doe was the wagon driver and directed passengers to use

the step stool to enter and exit the wagon, although it has yet to provide his identity.

¶5 On October 7, 2011, the Park District moved to dismiss the complaint. The Park District

argued in part that it was immune from liability for allegations of mere negligence under the Local

Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS

10/3-106 (West 2010)). On January 5, 2012, plaintiff then filed his first amended complaint, in

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which he pled two counts: one alleging negligence and the other alleging willful and wanton

misconduct. The first amended complaint read similarly to the original complaint. In it, plaintiff

alleged that the step stool that the Park District instructed patrons to use to enter and exit the wagon

was “rusted and physically damaged in areas visible to JOHN DOE, and more particularly

structurally unsound because of the visible rust and other physical damage.” Plaintiff continued

that the step stool collapsed at the left front joint of the first step, sending him plummeting to the

ground and thus causing his injury. On February 23, 2012, defendants filed a combined motion to

dismiss the first amended complaint under sections 2-615 and 2-619 of the Code of Civil

Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2010)).

¶6 On July 11, 2012, the trial court entered an order granting the motion in part and denying it

in part. The trial court dismissed plaintiff=s negligence count because it found that the Tort

Immunity Act precluded a negligence action. Regarding the count alleging willful and wanton

misconduct, the court found, “the willful and wanton [count] is sufficiently pled to stand, although

we could revisit it in a motion for summary judgment.”

¶7 On July 30, 2012, defendants filed a motion for summary judgment on the remaining

willful-and-wanton count. Defendants argued that: (1) because the Park District had not

experienced prior problems with the step stool, plaintiff could not establish actual or constructive

notice of a defect; (2) a spontaneous collapse of the step stool, without any evidence of prior

complaints or similar occurrences, could not constitute willful and wanton misconduct, as a matter

of law; and (3) the Park District had absolute immunity from liability under sections 2-109 and

2-201 of the Tort Immunity Act (745 ILCS 10/2-109, 2-201 (West 2010)) because it exercised

discretion in its use of the step stool.

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¶8 Defendants attached the affidavit of James Pacanowski, executive director of the Park

District, to the motion for summary judgment. In his affidavit, Pacanowski stated as follows.

He had been employed with the Park District for 16 years, and he was familiar with Harvest Fest

and the step stool used for patrons to step on and off the hayride wagons. He admitted that the

Park District owned the step and operated the Harvest Fest event and that Park District volunteers

and employees operated activities and attractions at the event, including the hayride. They

assisted patrons as needed in entering and exiting the wagons. To the best of his knowledge, the

step stool was operating properly and exhibited no signs that any of the legs would suddenly bend

or collapse at any time prior to plaintiff’s accident.

¶9 Pacanowski was present at the Harvest Fest at the time of plaintiff’s accident. He

personally helped set up the wagon entry and exit areas and he handled and observed the step stool

prior to plaintiff’s accident. Prior to plaintiff’s accident, which occurred at approximately 3:35

p.m., Pacanowski had observed several groups of patronsCestimated at several dozen patrons

totalCuse the step stool without incident. He claimed that the same step stool had been used for

the 2009 Harvest Fest without known incident, problem, or complaint of any kind. The step stool

was provided as a convenience to Harvest Fest patrons, who total several thousand per year.

Plaintiff’s accident was the only known or claimed injury by any patron concerning the use of the

step stool, according to Pacanowski. After plaintiff’s accident, the Park District immediately

stopped using the step stool for any purpose.

¶10 Also included with Pacanowski’s affidavit were two pictures: one of the flyer for the 2010

Harvest Fest (advertising, among other attractions, the hayride), and one of the step stool after

plaintiff’s accident, which clearly shows the front left leg bent inward at the joint where the leg

meets the first of two steps. Pacanowski’s was the only affidavit attached to defendants’ motion

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for summary judgment; John Doe did not provide one.

¶ 11 On September 4, 2012, plaintiff filed a motion for discovery pursuant to Illinois Supreme

Court Rule 191(b) (eff. July 1, 2002). Plaintiff requested that the trial court strike defendants’

motion for summary judgment or, alternatively, allow for sufficient discovery to allow plaintiff to

respond to the motion. Plaintiff argued, however, that he should not be required to comply with

Rule 191(b) merely because defendants suggested that plaintiff could not, at the current stage of

the litigation, prove his case; rather, the motion for summary judgment was premature. Plaintiff

further argued that defendants had not answered the written discovery he had served, nor had

defendants identified John Doe, who was an eyewitness to plaintiff’s accident. Any knowledge

of John Doe, or other eyewitnesses, was in defendants’ exclusive purview. Plaintiff therefore

argued that the trial court must require defendants to answer his interrogatories so plaintiff could

gain information regarding knowledge of the condition of the step stool, notice of any defects,

maintenance schedules, repair procedures, names of other witnesses to the accident, and

observations made prior to the accident. Plaintiff also argued that the trial court should require

defendants to produce documents about the step stool and the accident before addressing the

motion for summary judgment. Plaintiff argued that, without access to knowledge and

information within the sole province of defendants, he could not prove his case and that a ruling on

summary judgment before discovery could properly transpire would prematurely foreclose him

from doing so.

¶ 12 Defendants objected to plaintiff’s discovery motion. On September 19, 2012, defendants

filed their response in opposition to the motion, arguing that under the Code a “defendant may, at

any time, move” for summary judgment. 735 ILCS 5/2-1005(b) (West 2010). Defendants argued

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that they did not have an obligation to wait for full discoveryCor even partial discoveryCbefore

filing their motion for summary judgment. Furthermore, defendants characterized their summary

judgment motion as a “traditional” motion, supported by affidavit, as opposed to a Celotex-type

motion, which relies on the weakness of the opponent=s case instead of the affirmative strength of

the movant’s. See Celotex Corp. v. Catrett,

(1986). Defendants contended that

plaintiff therefore needed to either respond to the motion for summary judgment or comply with

the affidavit requirement of Rule 191(b), specifying the persons whose affidavits he needed in

order to properly respond to the motion and the information he expected such persons to provide.

Yet, defendants noted, plaintiff did neither. Moreover, defendants argued that it would be unfair

and prejudicial to require them to participate in full-fledged discovery when they had a dispositive

motion pending. The dispositive motion would lose any value to defendants as a vehicle to avoid

litigation expenses if full discovery had to occur before the motion was adjudicated.

¶ 13 Plaintiff replied that he was in compliance with Rule 191(b) and that, regardless, the trial

court had authority to stay disposition of the motion for summary judgment to allow for discovery

to proceed.

¶ 14 On October 3, 2012, the trial court held a hearing on plaintiff’s motion for discovery. The

trial court ruled that the case would be continued to allow for discovery for a reasonable period of

time and that defendants should answer any outstanding discovery requests within 30 days.

Plaintiff would also be allowed to test the step stool and depose John Doe and Pacanowski. The

court continued the case until January 9, 2013, for the setting of a briefing schedule on the

summary judgment motion. Dutton told the court that he would be filing a motion that defendants

be held in contempt, saying “I am not going to produce anybody. I would produce the affiant but

I will not produce anyone else.” The court entered an order that same day, giving defendants until

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November 2, 2012, to answer outstanding discovery requests, and until January 9, 2013, to

produce Pacanowski and John Doe for depositions.

¶ 15 Dutton made good on his promise. On October 16, 2012, defendants filed their motion to

be held in contempt, pursuant to Norskog v. Pfiel,

(2001). Dutton requested that the

trial court hold them “in ‘friendly’ civil contempt, in order to enable the Park District to file an

immediate interlocutory appeal from this Court=s 10/3/12 order.”

¶ 16 On November 8, 2012, the trial court granted defendants’ contempt motion. The trial

court’s order held defendant Park District and its counsel in civil contempt “for the purpose of

appealing from the court’s discovery order of 10/3/12,” such an appeal being proper pursuant to

Rule 304(b)(5). The trial court imposed a fine of $100 per week but ordered that the fine would

be stayed pending resolution of the appeal.

¶ 17 Defendants 2 timely appealed.

¶ 18 II. ANALYSIS

¶ 19 A. Standard of Review

¶ 20 Defendants argue that their appeal presents solely questions of law and that the de novo

standard of review therefore applies. They argue that the de novo standard has been applied to

various appeals from contempt orders relating to discovery (see, e.g., Allen v. Peoria Park District,

2 Plaintiff questions whether John Doe has standing to appeal since the contempt order

applied to “Defendant and its counsel,” referring to the Park District. Furthermore, plaintiff

argues that John Doe did not file an appellant’s brief and therefore forfeited any argument, even if

he has standing. If we were to reverse the discovery order, plaintiff argues, we should reverse it

with respect to only the Park District, not John Doe. Because we do not reverse the order, we

need not address this contention any further.

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, & 9) and that the standard is also applied when a court determines

whether a party’s affidavit complies with the requirements of Rule 191(b) (see Roe v. Jewish

Children=s Bureau of Chicago,

(2003)). Defendants frame the issue as

“whether the court can disregard Supreme Court Rules 137 and 191(b), and Section 2-1005(b) of

the Code of Civil Procedure, as well as settled case law, and direct the Park District to complete

‘full discovery’ *** before *** a hearing on its motion for summary judgment,” requiring de novo

review.

¶ 21 Plaintiff disagrees, arguing as follows. If defendants are successful in their appeal of the

discovery order, both the discovery order and the contempt order will be reversed. Even if

defendants’ appeal fails with regard to the discovery order, defendants may argue, and in their

briefs in fact have argued, that they should be purged of their contempt. Therefore, the standard

of review relevant to this appeal is not the standard applicable to the review of contempt orders, but

is the standard applicable to the review of discovery orders in general: namely, the

abuse-of-discretion standard.

¶ 22 We agree with plaintiff. The primary issue on appeal is defendants’ disagreement with the

discovery order, which continued the motion for summary judgment until defendants comply with

certain specified discovery. See Wisniewski v. Kownacki,

(2006) (“[W]hen

an individual appeals contempt sanctions for refusing to comply with a discovery order, the

discovery order itself is subject to review.”); Reda v. Advocate Health Care,

(2002) (appeal from contempt sanction for violating, or threatening to violate, a discovery order

presents to the reviewing court the propriety of the discovery order). In general, discovery orders

are reviewed for an abuse of discretion. Wisniewski,

; see Cangelosi v. Capasso,

(2006) (court reviews discovery order in appeal arising from contempt

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for noncompliance with discovery order; discovery orders generally reviewed for abuse of

discretion, but applicability of privilege is reviewed de novo).

¶ 23 Here, defendants moved to be held in contempt in order to appeal the discovery order,

which ordered them to produce witnesses for deposition and answer written discovery already

served upon them. There is no claim of privilege or any pure question of law before us; there is

only the trial court’s exercise of its discretion in continuing defendants’ motion for summary

judgment until after completion of reasonable discovery. We disagree with defendants’ attempt

to frame the issue as whether the trial court failed to interpret and apply “Supreme Court Rules 137

and 191(b), and Section 2-1005(b) of the Code of Civil Procedure,” such that our job is merely to

interpret these provisions. First of all, while section 2-1005(b) indeed states that a defendant

may move for summary judgment at any time, it does not say that the trial court must immediately

adjudicate the motion regardless of pending discovery. 735 ILCS 5/2-1005(b) (West 2010) (“A

defendant may, at any time, move *** for a summary judgment in his or her favor ***.”).

Furthermore, plaintiff did file an affidavit under Rule 191(b), detailing that he needed to depose

certain individuals, including John Doe, although he did not yet know the identity of John Doe,

which is information in the sole possession of defendants. As we discuss in greater detail in the

next part of our analysis, case law supports that there are times when compliance with Rule 191(b)

is not required, and determination of whether plaintiff in this case is excepted from compliance is

not based on a mere interpretation of Rule 191(b) but rather is based on the facts of the case and the

content of defendants’ summary judgment motion. In short, this case presented a discovery

matter within the discretion of the trial court to decide, and we will review it accordingly for an

abuse of discretion. See Janda v. United States Cellular Corp.,

, &&

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(applying abuse-of-discretion standard to issue of whether plaintiff complied with Rule

191(b)); Crichton v. Golden Rule Insurance Co.,

(2005) (applying

abuse-of-discretion standard to trial court’s denial of plaintiff=s Rule 191(b) motion).

¶ 24 B. Character of Defendants’ Motion for Summary Judgment

¶ 25 As a threshold issue, we must review what type of summary judgment motion defendants

filed: a Celotex-type motion or a traditional motion. 3 The Celotex-type summary judgment

motion we refer to stems from the United States Supreme Court decision in Celotex Corp,

(interpreting Federal Rule of Civil Procedure 56), and Illinois courts recognize that a

similar interpretation applies to the Code’s counterpart to the federal rule. See Department of

Financial & Professional Regulation v. Walgreen Co.,

, & 22

(Celotex-type motion described as one that argues that the petitioner is unable to prove its case);

Pecora v. County of Cook,

(2001) (same). For a defendant who does not

have the burden of proof at trial on the issue(s) on which it moves for summary judgment, there are

two recognized ways that the defendant can succeed in securing judgment as a matter of law: (1)

by affirmatively disproving an element of the nonmovant’s caseCor, in other words, proving

something that the defendant would not be required to prove at trialCoften referred to as a

“traditional” motion for summary judgment; and (2) by establishing that the nonmovant’s

3 Defendants also make a brief argument that the trial court erred by allowing plaintiff’s

claim to go forward in violation of Rule 137, that is, plaintiff filed his motion for discovery without

his claim being well-grounded in fact. However, as we discuss later in this opinion, this argument

is not properly before us on appeal, and we will not consider it.

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evidence is insufficient to avoid judgment as a matter of law, which is a Celotex-type motion.

See, e.g., Willett v. Cessna Aircraft Co.,

(2006).

¶ 26 Whether we classify a defendant=s motion for summary judgment as traditional, or as a

Celotex-type motion, matters. This is because strict compliance with Rule 191(b)’s affidavit

requirement, applicable when the nonmovant still requires discovery of material facts to respond

to the motion, is not automatically necessary when a defendant files a Celotex-type motion,

whereas compliance is required with a traditional motion. See Willett,

(“A

Celotex-type motion is appropriate only when the nonmovant has had an adequate opportunity to

conduct discovery.”); Williams v. Covenant Medical Center,

(2000)

(“Although a plaintiff must comply with Rule 191(b) when a defendant has affirmatively shown

that it is entitled to judgment, it is quite another matter to require such compliance when defendant

*** merely suggests that plaintiff is unable to prove his case.”); Richard A. Michael, Illinois

Practice ' 38.4 (2012) (“Where a motion for summary judgment is made by the party who does not

have the burden of proof on an issue asserting that the nonmovant cannot prove a prima facie case,

it is critical that the respondent be given a reasonable opportunity to conduct discovery before

summary judgment ***.”).

¶ 27 Professor Richard A. Michael of Loyola University Chicago School of Law articulates a

cogent and concise summary of the interaction of Rule 191(b) and Celotex-type motions for

summary judgment. Michael, supra, ' 38.4. Because a motion for summary judgment under

section 2-1005 may be made by a defendant at any time, the plaintiff will often desire to conduct

discovery before responding to the motion. Id. Doing so generally requires compliance with

Rule 191(b), but this is not always the case. The trial court has discretion to permit a continuance

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for discovery without compliance with Rule 191(b), and, moreover, it is “critical that the

respondent be given a reasonable opportunity to conduct discovery before summary judgment is

rendered against him or her” in a case where the movant asserts that the nonmovant cannot prove a

prima facie case and the movant does not have the burden of proof on the issue.

Furthermore, when the United States Supreme Court approved of the use of such a summary

judgment motion in Celotex, it stressed the importance of a prior opportunity for discovery:

“ ‘In our view, the plain language of Rule 56(c) mandates the entry of summary

judgment, after adequate time for discovery and upon motion, against a party who fails to

make a showing sufficient to establish the existence of an element essential to that party’s

case, and upon which that party will bear the burden of proof at trial.’ ”

(quoting

Celotex Corp.,

).

¶ 28 This reasoning behind trial court discretion is sensible and persuasive. Discovery is

intended, first and foremost, for the “ascertainment of truth, for the purpose of promoting either a

fair settlement or a fair trial.” Ostendorf v. International Harvester Co.,

(1982); see also Mueller Industries, Inc. v. Berkman,

(2010) (noting that

Illinois adheres to a strong policy of encouraging disclosure, with an eye toward ascertaining

truth); People v. Turner,

(2006) (discovery rules prevent surprise or

unfair advantage by either party and aid in search for the truth). Rule 191(b) outlines the

procedure to follow when material facts are not obtainable in relation to a pending motion for

summary judgment, and it requires “naming the persons and showing why their affidavits cannot

be procured and what affiant believes they would testify to if sworn,” when the affidavits are

unobtainable by reason of “hostility or otherwise.” Ill. S. Ct. R. 191(b) (eff. July 1, 2002). In the

normal course of pretrial proceedings, requiring compliance with Rule 191(b) makes good sense,

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such as in Gill v. Chicago Park District,

(1980), where the plaintiff had

three years to compile discovery and, after the defendant moved for summary judgment, did not

file a response or a counteraffidavit, nor did he request additional continuances for discovery

purposes. The Gill court held that the plaintiff could not argue on appeal that the trial court erred

in granting summary judgment when he did not file a Rule 191(b) affidavit.

. When

the nonmovant has had ample time for discovery, and does not even request a continuance for

discovery, there is no reason why noncompliance with Rule 191(b) should be excused; the rule

clearly outlines the procedure to be followed for procuring necessary affidavits containing

material facts that are unavailable to the nonmovant when the summary judgment motion is filed.

It acts, therefore, as a shield for the nonmovant: if, for instance, the movant is in sole possession of

material facts relevant to summary judgment that have yet to come out through discovery, Rule

191(b) can stay the disposition of summary judgment until the nonmovant can procure the

affidavits that it knows it needs to respond to the motion.

¶ 29 However, to demand strict compliance with Rule 191(b) before adequate

discoveryCbefore a party even knows the identity of witnesses who can provide material

factsCturns Rule 191(b) from a procedural safeguard for the nonmovant into a tactical weapon for

the movant. By the letter of Rule 191(b), the affiant moving under the rule must name the persons

whose affidavits it cannot procure, list why the affidavits cannot be procured, and provide what the

affiant believes the affidavits would say. This can be an impossible task without at least a

reasonable amount of discovery that both parties fairly and in good faith participate in. Here,

plaintiff knows that he was injured at the Park District’s Harvest Fest, but he does not know the

identity of the operator of the hayride on which he injured himself while exiting.

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¶ 30 Essentially, echoing Professor Michael, it is basic fairness that dictates that a plaintiff,

whose complaint has survived a motion to dismiss, is entitled to investigate and attempt to

substantiate his claims before facing a motion for summary judgment that claims that he is unable

to prove his case. Strict compliance with Rule 191(b) is not required for a Celotex-type motion,

and this position comports with the truth-finding spirit of discovery and the trial court’s broad

discretion in handling discovery matters.

¶ 31 1. Defendants Argue That Their Summary Judgment Motion is a Traditional Motion

¶ 32 Defendants argue that their motion for summary judgment is a traditional motion, requiring

plaintiff to comply with Rule 191(b). Defendants claim that their motion presented affirmative

evidence that established their entitlement to summary judgment, namely, Pacanowski’s affidavit.

They also argue that plaintiff provided “no facts to establish that the Park District had either actual

or constructive notice” (emphasis in original) that the step stool was negligently maintained or

used. Whether plaintiff provided facts to establish his case, however, is inapposite to a

determination of whether defendants affirmatively presented facts that disproved plaintiff’s

caseCindeed, arguing that plaintiff provided no facts to establish his case would be the basis of a

Celotex-type motion.

¶ 33 Defendants continue that Pacanowski’s affidavit established certain facts: first, that the

Park District did not have actual or constructive notice as a matter of law. The portions of

Pacanowski’s affidavit they cite in support are that numerous patrons had used the same step stool

during the current and the previous year’s festivals without any known incident, injury, or

complaint, and that Pacanowski personally assisted in setting up the hayride’s entry and exit areas

and observed dozens of patrons enter and exit the ride via the step stool without any incident or

injury for about 22 hours prior to plaintiff’s accident. These facts, defendants contend, are

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undisputed and completely negate plaintiff’s allegations that the Park District had prior notice of a

defective condition regarding the step stool.

¶ 34 Next, defendants argue that Pacanowski’s affidavit affirmatively established that the Park

District did not act willfully and wantonly with regard to any failure to predict or prevent

plaintiff’s accident. Defendants first cite section 3-106 of the Tort Immunity Act (745 ILCS

10/3-106 (West 2010)), which precludes liability of public entities and employees for injuries on

public property or property used for recreation, such as parks or playgrounds, unless the public

entity or employee proximately caused the injury willfully and wantonly. This provision was the

basis for the trial court’s dismissal of plaintiff’s negligence count. They then cite section 1-210 of

the Tort Immunity Act (745 ILCS 10/1-210 (West 2010)), which defines “willful and wanton

conduct” as “a course of action which shows an actual or deliberate intention to cause harm or

which, if not intentional, shows an utter indifference to or conscious disregard for the safety of

others or their property.” Defendants further cite Leja v. Community Unit School District 300,

, for the proposition that a plaintiff must allege facts that establish that

the defendant was conscious of a high probability of harm to others. The Leja court framed the

central issues as “whether plaintiff alleged sufficient facts that, taken as true, would permit the

inference that defendant was conscious that directing plaintiff to operate the volleyball net crank

would ‘naturally and probably result in injury’ or ‘posed a high probability of serious physical

harm.’ ”

& 12. Although the plaintiff alleged that the defendant had experienced prior

difficulties with the crank and that it had snapped back on prior occasions, the plaintiff also

admitted that the defendant was unaware of any prior injuries related to use of the crank.

The

court found that the allegations were insufficient to state a claim for willful and wanton

misconduct on the part of the defendant.

&& 12-13, 25.

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¶ 35 Defendants also cite Tagliere v. Western Springs Park District,

(2011), to show that the mere existence of a potentially dangerous condition on recreational

propertyCand the failure to discover or warn of the conditionCis insufficient to support an

allegation of willful and wanton misconduct. In Tagliere, the plaintiff alleged injuries after she

used a seesaw at the defendant’s park.

. The Tagliere court affirmed the trial court’s

entry of summary judgment in favor of the defendant, noting that there was no evidence that the

defendant either knew or had reason to know of prior injuries involving the seesaw or that it

removed a safety device from the seesaw.

. Therefore it held that the trial court

properly granted summary judgment for the defendant on the plaintiff’s claim of willful and

wanton misconduct under section 1-210 of the Tort Immunity Act (745 ILCS 10/1-210) (West

2008)). Tagliere,

. Under Leja and Tagliere, defendants argue,

Pacanowski’s affidavit established that there were no prior injuries known to the Park District,

which therefore, at most, could be liable for mere negligence.

¶ 36 Defendants’ final argument for why their motion is a traditional motion for summary

judgment is that, under sections 2-109 and 2-201 of the Tort Immunity Act (745 ILCS 10/2-109,

2-201 (West 2008)), the Park District is absolutely immune from liability. Section 2-201 states:

“Except as otherwise provided by Statute, a public employee serving in a position

involving the determination of policy or the exercise of discretion is not liable for an injury

resulting from his act or omission in determining policy when acting in the exercise of such

discretion even though abused.” 745 ILCS 10/2-201 (West 2010).

Section 2-109 provides, “A local public entity is not liable for an injury resulting from an act or

omission of its employee where the employee is not liable.” 745 ILCS 10/2-109 (West 2010).

Defendants argue that sections 2-109 and 2-201 together make the Park District absolutely

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immune from liability because it exercised judgment and discretion in determining what

equipment to use for the hayride and where and how to set that equipment up. Therefore,

defendants argue, even if the Park District breached a duty owed to plaintiff, it would nevertheless

be immune from liability.

¶ 37 2. Plaintiff Argues That the Summary Judgment Motion is a Celotex-type Motion

¶ 38 Plaintiff responds to each of defendants’ arguments in turn, arguing that defendants’

summary judgment motion is indeed a Celotex-type motion. First, plaintiff argues that

Pacanowski’s affidavit did not do enough to make defendants’ motion a traditional motion,

because it did not establish that the Park District did not have actual or constructive notice of any

defect with the step stool; at most, it established that Pacanowski did not have actual or

constructive notice of any defect, but there are other employees and/or agents of the Park District

who could be used to establish liability on the part of the Park District. Plaintiff named John Doe

as an agent and/or employee of the Park District and alleged that John Doe, as operator of the

hayride, had actual or constructive notice of a defect in the step stool. If John Doe did have such

notice, notice would be imputed to the Park District via the doctrine of respondeat superior. See,

e.g., Vancura v. Katris,

(2010) (employee liability for tort imputed to

employer under respondeat superior if tort was committed within the scope of employment);

Hengels v. Gilski,

(1984) (knowledge possessed by employee may be

imputed to employer).

¶ 39 Next, plaintiff contends that Pacanowski’s affidavit did not affirmatively establish that the

Park District did not engage in willful and wanton misconduct. Plaintiff argues that: (1)

Pacanowski’s affidavit does not address the age of the step stool, its maintenance history, the

length of time it had been in use, or its condition at the time of the accident; (2) his affidavit does

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not address John Doe’s conduct, which, if willful and wanton, is imputable to the Park District;

and (3) whether willful and wanton misconduct occurred is a question of fact for the jury to decide.

See Murray v. Chicago Youth Center,

(2007) (generally willful and wanton

misconduct is a question for the jury). In addition, plaintiff cites Murray to rebut defendants’

contention that section 1-210 of the Tort Immunity Act (745 ILCS 10/1-210 (West 2010)) created

a heightened standard for willful and wanton misconduct. Murray,

. However,

Murray is inapposite here: the Murray court expressed no opinion as to whether the legislature

intended section 1-210 to impose a heightened standard for willful and wanton misconduct.

.

¶ 40 Finally, plaintiff attacks defendants’ argument that they enjoy absolute immunity from

liability under the Tort Immunity Act by arguing that the use of a defective step stool was not a

determination of policy or an act of discretion. Plaintiff argues that section 2-201 (745 ILCS

10/2-201 (West 2010)), which provides immunity to public employees who are serving in a

position involving determination of policy or the exercise of discretion, is not necessarily

applicable here. Plaintiff has identified John Doe in his complaint, but without more information

about John DoeCinformation plaintiff has requested in discoveryCit is impossible to know the

nature of his position with the Park District and whether that position involved the determination

of policy or the exercise of discretion. Further, although Pacanowski is a public employee subject

to immunity under section 2-201, his affidavit does not attest to whether he made any policy

decision or exercised discretion in relation to the acquisition, use, or maintenance of the step stool.

Moreover, plaintiff disagrees that the decision to use the step stool for the hayride was a policy

decision or an exercise of discretion. Rather, plaintiff argues, a policy decision is one that

requires the entity to balance competing interests and to make a judgment call as to what solution

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will best serve each of those interests. Karalyos v. Board of Education of Lake Forest Community

High School District 115,

(N.D. Ill. 2011) (citing Harinek v. 161

North Clark Street Ltd. Partnership,

(1998)). The decision, as plaintiff

characterizes it, was not whether to use a red or blue step stool, or a metal or plastic one, or one that

costs $25 or $50; the decision was a deliberate one to use a step stool known by John Doe to be

dangerous and defective. It was not a decision that required balancing competing interests or

making a judgment callCin essence, as we read it, plaintiff argues that the use of the step stool was

a ministerial act performed in the execution of John Doe’s duty to operate the hayride, not a

discretionary act on his part. See Snyder v. Curran Township,

(1995)

(discretionary versus ministerial functions determined on case-by-case basis; ministerial functions

are those performed on a given set of facts in a prescribed manner without reference to the

official=s discretion as to the propriety of the act); Torres v. City of Chicago,

(N.D. Ill. 2000) (police officer’s action of calling for medical aid for an injured victim

was a ministerial act; the discretion rested not with the officer but with the promulgated police

order that prescribed that the officer first provide aid to the injured).

¶ 41 Plaintiff continues that immunity under section 2-201 must be pled as an affirmative

defense. Donovan v. County of Lake,

, & 61. Therefore, defendants

must establish, at a minimum, the decision to be made, the person making the decision, that the

decision involved an exercise of discretion or a determination of policy, and that the person

making the decision was serving in a position that involved the exercise of discretion or the

determination of policy at the time. Plaintiff argues that defendants have not provided these

necessary factual bases, in no small part because defendants do not at any point address who John

Doe is, what he knew, or how he acted.

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¶ 42 Plaintiff finally argues that, even if we reject his arguments regarding immunity and find

defendants’ immunity argument to be typical of a traditional motion for summary judgment,

defendants’ other two arguments for summary judgment are still typical of a Celotex-type motion

and thus plaintiff is still entitled to discovery before responding to the motion.

¶ 43 3. Resolution

¶ 44 We agree with plaintiff insofar as, in this case, the trial court properly exercised its

discretion in continuing the motion for summary judgment and excepting strict compliance with

Rule 191(b). First, two out of the three arguments defendants make in their summary judgment

motion are typical of a Celotex-type motion. Defendants’ argument, predicated on the affidavit of

Pacanowski, that plaintiff cannot prove that the Park District had notice, actual or constructive,

does not affirmatively rebut plaintiff=s allegations. To do so, defendants’ motion and

accompanying affidavit would have to address whether John Doe was on notice; they do not.

Likewise, defendants’ motion and affidavit do not address whether John Doe acted willfully and

wantonly, as also would be necessary to affirmatively defeat plaintiff’s allegations. While, in

form, defendants argue that Pacanowski’s affidavit affirmatively disproves plaintiff’s claim, in

substance they argue only that plaintiff cannot present facts necessary to support his case, and in

doing so they conflate Pacanowski’s knowledge and state of mind with that of all other Park

District employees, including John Doe. Because their argument does not address John Doe, we

are left with nothing more than the simple argument that plaintiff cannot show notice or willful and

wanton misconduct.

¶ 45 Regarding notice, while a prior accident could establish conscious awareness, the absence

of a prior accident does not necessarily preclude a finding of willful and wanton misconduct. See

A.D. v. Forest Preserve District,

(2000) (providing three disjunctive

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ways to find that an entity engaged in willful and wanton misconduct, including knowledge of

prior injuries or knowledge of the dangerous condition); Palmer v. Chicago Park District,

(1995) (sufficient claim for willful and wanton misconduct where a

3-foot-tall, 30-foot-long protective fence had been lying on its side for three months, defendant’s

employees inspected the lot daily, and the fallen fence resulted in plaintiff’s injury, but there were

no allegations of prior injuries); Soucie v. Drago Amusements Co.,

(1986) (owner/occupier’s failure to warn of concealed dangers of which it is aware constitutes

willful and wanton misconduct). Rather, plaintiff must put forth facts that satisfy the elements of

negligence plus show either intent to harm or conscious disregard for plaintiff’s well-being.

Doe-3 v. McLean County Unit District No. 5 Board of Directors,

, & 19 (willful

and wanton misconduct is regarded as an aggravated form of negligence; plaintiff must plead the

basic elements of negligence plus allege either deliberate intention to harm or conscious disregard

for plaintiff=s welfare); see also Giers v. Anten,

(1978) (“Whether a

particular act constitutes willful and wanton misconduct depends upon the facts of each case

[citation] and has also been held to be a question of fact for the jury to determine.”).

¶ 46 Furthermore, defendants’ cited cases are not helpful here in determining whether

Pacanowski’s affidavit affirmatively established that the Park District did not act willfully or

wantonly as a matter of law. Leja dealt with the dismissal of an amended complaint, not with the

more narrow issues before us, that is, whether defendants filed a Celotex-type or a traditional

motion for summary judgment, and, in light of that determination, the propriety of the trial court’s

order to continue the motion for summary judgment so as to let discovery proceed. Likewise,

Tagliere reviewed an entry of summary judgment, not the character of the summary judgment

motion in conjunction with the court’s exercise of discretion over discovery matters. Defendants

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also cited Callaghan v. Village of Clarendon Hills,

(2010), which again does

not address the issues before us but rather reviewed the propriety of a dismissal based on the

pleadings. The Callaghan court affirmed the dismissal of the count alleging willful and wanton

misconduct (the case involved a plaintiff who slipped and fell on ice on a sidewalk maintained by

the municipality defendant), because the plaintiff failed to allege facts that the sidewalk was

unreasonably dangerous, that the snow pile created by the defendants created the alleged

dangerous condition, and how that creation of the snow pile evinced a conscious disregard for the

safety of pedestrians.

. Here, in contrast, plaintiff alleged that John Doe was aware of

an unsafe condition with the step stool (rusted and physically damaged in visible areas), which was

being used by patrons of the Park District’s hayride. Regardless, we are not reviewing the

sufficiency of the pleadings; we are determining the character of defendants’ motion for summary

judgment for purposes of reviewing the trial court’s exercise of its discretion to continue summary

judgment for further discovery. Callaghan does not aid us in this regard.

¶ 47 It very well may be that plaintiff cannot provide facts that would raise an issue of material

fact as to whether John Doe had notice or whether he intentionally or consciously disregarded a

dangerous condition regarding the step stool. However, plaintiff should first be given an

opportunity to discover those facts, if indeed there are facts to be discovered. In short, after

plaintiff conducts discovery, only then will it be fair and just for defendants to argue that plaintiff

cannot, as a matter of law, prove his case. The likely outcome of plaintiff’s case, on which we

proffer no opinion, is wholly irrelevant to this opinion.

¶ 48 Defendants’ final argumentCthat the Park District is absolutely immune from liability

under the Tort Immunity ActCpurports to be an affirmative ground for summary judgment, in no

small part because the argument presents an affirmative defense. However, we agree with

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plaintiff that this affirmative defense does not alone make defendants’ motion a traditional motion

for summary judgment. First of all, defendants’ affirmative defense suffers from the same

shortcoming as their other two arguments, namely, even if established the defense does not defeat

plaintiff’s case because it does not address the Park District’s liability that may extend from John

Doe. We need not delve into the merits of defendants’ contentionsCwhich are not at issue on

appealCto determine this. Defendants argue that the Park District is immune from liability

because section 2-201 immunizes employees who serve in a position that involves determining

policy or exercising discretion when they are acting to determine policy or exercise discretion, and

section 2-109 shields entities when employees are not liable. However, defendants did not

present any evidence that would establish whether John Doe was in a position involving

determination of policy or exercise of discretion, much less whether John Doe exercised discretion

in the use of the step stool. They presented no evidence regarding John Doe at all, even though it

is defendants, not plaintiff, who have the burden of persuasion on their affirmative defense.

Moore v. Farmers Insurance Exchange,

(1982). Therefore, even if

Pacanowski’s affidavit affirmatively established his immunity from liability under the Tort

Immunity Act, the question of whether John Doe is liable, not liable, or immune from liability

remains unaddressed.

¶ 49 Furthermore, in accord with our holding that strict compliance with Rule 191(b) is not

always required, it would be inequitable to require strict compliance with Rule 191(b) here.

Defendants have not yet disclosed the identity of the employee who plaintiff alleges acted willfully

and wantonly. They have made it impossible for plaintiff to strictly comply with Rule 191(b) at

the current stage of the litigation, because plaintiff does not even know John Doe’s real name,

which is information in the sole purview of defendants. For defendants’ affirmative defense to

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succeed, they would have to put forward affidavits or the like tending to establish that John Doe is

immune from liability under the Tort Immunity Act, which they have not done. If defendants had

disclosed John Doe’s identity and presented his affidavit and/or perhaps deposition testimony,

then plaintiff could have and should have complied with Rule 191(b) if he needed more time for

discovery before responding to the motion for summary judgment. However, that not being the

case, we refuse to hold plaintiff to strict compliance with Rule 191(b). Defendants want to have

their cake and eat it too: they want plaintiff to comply with Rule 191(b) as if defendants had

participated in discovery, without having to participate in discovery; they want us to find that

plaintiff cannot prove his case, without allowing him the procedures he is due to make his case.

¶ 50 Accordingly, we find that the trial court properly exercised its discretion to continue

proceedings on summary judgment for discovery to first proceed. Defendants’ motion is, in

substance, a Celotex-type motion because, even if all its allegations were found true, it could not

successfully disprove any essential element of plaintiff’s case. Moreover, the trial court=s

discretion in handling discovery matters and the inequitable result that would follow from strict

compliance with Rule 191(b) here make compliance unnecessary. Because plaintiff was not

required to comply with Rule 191(b), we do not address defendants’ arguments that plaintiff failed

to comply with Rule 191(b). On remand defendants should comply with the discovery order.

¶ 51 C. Compliance With Rule 137

¶ 52 Defendants argue that the trial court erred by allowing plaintiff to conduct discovery in

violation of Illinois Supreme Court Rule 137 (eff. July 1, 2013), that is, by not requiring plaintiff to

investigate whether his claim was well-grounded in fact before filing it. Defendants contend that

plaintiff filed his case without any evidence to support his claim, therefore violating Rule 137.

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¶ 53 However, defendants’ Rule 137 argument is not properly before us. In an appeal from an

order of civil contempt, we are confined to review only those matters relevant to the order and not

matters outside of it. See In re Marriage of Nettleton,

(2004) (review of

trial court’s finding of indirect civil contempt encompassed review of only the order respondent

refused to comply with); see also Ill. S. Ct. R. 304(b)(5) (eff. Feb. 26, 2010) (specifying the

particular order of contempt as appealable under the rule); Norskog,

(when

appealing contempt order for refusal to comply with a discovery order, the discovery order is also

subject to review because review of the contempt order necessarily requires review of order upon

which it is based). Defendants’ Rule 137 argument is not relevant to the trial court’s order

holding defendants in contempt, and it is therefore outside of our jurisdiction. Moreover,

defendants never made a Rule 137 motion in the trial court, much less one material to the contempt

order. Accordingly, we strike defendants’ Rule 137 argument.

¶ 54 D. Civil Contempt Order

¶ 55 We have already disagreed with defendants that the trial court abused its discretion in

issuing the discovery order, so we do not address their argument that the contempt order should be

vacated because the discovery order, with which they refused to comply, was improper.

Defendants argue that, regardless of the validity of the discovery order, the contempt order should

be reversed because the $100-per-week fine was excessive. Defendants cite various cases

involving one-time fines of $25 to $100.

¶ 56 Plaintiff believes that defendants, although holding an opposing view on the propriety of

the discovery order, acted in good faith and that requesting the trial court to hold defendants in

civil contempt was the only way to obtain review of the discovery order. See Norskog v. Pfiel,

(2000). Plaintiff points out the scant case law directly addressing the

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situation of granting a continuance to conduct discovery prior to responding to a motion for

summary judgment. Plaintiff agrees that defendants should be purged of contempt, with one

caveat: if we validate the discovery order, the purging of contempt should be contingent upon

defendants’ compliance with the discovery order.

¶ 57 Exposing oneself to a finding of contempt is an appropriate means of testing the validity of

a court order in Illinois. Buckholtz v. MacNeal Hospital,

(2000).

Furthermore, when the contemnor refuses to comply with the court order in a good-faith effort to

secure an interpretation of an issue without direct precedent, it is appropriate to vacate the

contempt citation on appeal. In re Marriage of Rosenbaum-Golden,

(2008); see In re Marriage of Nettleton,

(vacating indirect civil

contempt order where petitioner asked to be held in contempt so as to appeal trial court order).

Given the paucity of direct authority on point, and plaintiff’s acquiescence that defendants acted in

good faith, we vacate the contempt order, contingent upon defendants’ compliance with the

discovery order. See Buckman v. Columbus-Cabrini Medical Center,

(1995) (vacating contempt order entered at petitioner’s request where contempt order was used as

a vehicle to appeal a discovery order).

¶ 58 III. CONCLUSION

¶ 59 In this case, defendants made a good-faith effort to challenge the trial court=s discovery

orderCas plaintiff acknowledgesCand it is therefore appropriate to vacate the trial court’s

contempt order. Defendants’ argument that plaintiff violated Rule 137 is not properly before us,

and we therefore strike it. In sum, although we find the discovery order valid and the continuance

of the motion for summary judgment appropriate, we vacate the contempt order of the Du Page

County circuit court and remand the cause.

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¶ 60 Vacated and remanded.

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