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January 17, 1989

SUE ANN SIEBER, Administrator of the Estate of ROBERT SIEBER, Deceased, Plaintiff,

Ilana Diamond Rovner, United States District Judge.

The opinion of the court was delivered by: ROVNER




 Polo is a fast-paced, sometimes dangerous sport. Collisions and falls are not uncommon, and it is within the rules to ride into another player's side to force him away from the ball. On August 22, 1984, a polo match took place between two teams known as Three Oaks and Dahlwood. The members of the Three Oaks team were Robert Sieber, his brother Jake Sieber, Michael Sparks and Bill Ylvisaker. The members of the Dahlwood team were defendant David Wigdahl, his father Tom Wigdahl, John Kuhn and Dick Kuhn. The game was officiated by umpires Stuart Mackenzie and Brett Kiely and referee Michael Butler.

 At one point during the third chukker, *fn1" Robert Sieber, David Wigdahl, and Dick Kuhn were all riding their horses toward the ball. Wigdahl called "leave it" to Kuhn, his teammate, signalling that Wigdahl believed he had a better shot at the ball. Kuhn accordingly pulled up in deference to Wigdahl. Wigdahl continued riding in the direction of the ball, and his horse hit Sieber's horse behind the saddle. Sieber's horse fell, and Sieber's head struck the ground. Sieber lost consciousness, and he died two days later.

 Plaintiff's initial complaint was brought in six counts. On March 10, 1987, the Court dismissed Counts II, IV and VI, which sought punitive damages based on the Illinois Survival Act and Wrongful Death Act, because Illinois courts had clearly rejected recovery of punitive damages in such actions. The Court also dismissed Count I, which alleged a claim under the Survival Act, because it was not brought by the executor or administrator of the decedent's estate. The remaining two counts survive as Counts I and II of plaintiff's two-count second amended complaint. Count I is brought for "wrongful death -- intentional tort," and Count II, which is nearly identical, is brought for "wrongful death -- wilful and wanton misconduct." In its March 10, 1987 opinion, the Court denied defendant's motion to dismiss one of these two counts as duplicative. The Court noted that plaintiff merely alleges alternative states of mind for the same alleged conduct and pointed out that Fed. R. Civ. P. 8(e)(2) permits alternative pleading.


 In their briefs relating to defendant's summary judgment motion, both parties assume that the standard for recovery applicable to Count I is different than that applicable to Count II. The parties agree that Count II is governed by the standard announced in Nabozny v. Barnhill, 31 Ill. App. 3d 212, 334 N.E.2d 258 (1st Dist. 1975), pursuant to which a defendant is liable for injuries sustained due to the defendant's violation of a safety rule in a contact sport "if his conduct is such that it is either deliberate, wilful or with a reckless disregard for the safety of the other player." 31 Ill. App. 3d at 215, 334 N.E.2d at 261. See also Oswald v. Township High School Dist. No. 214, 84 Ill. App. 3d 723, 406 N.E.2d 157, 40 Ill. Dec. 456 (1st Dist. 1980).

 With respect to Count I, the intentional tort count, the parties agree that the applicable standard is contained in Cowan v. Insurance Company of North America, 22 Ill. App. 3d 883, 318 N.E.2d 315 (1st Dist. 1974). However, the parties disagree over the nature of that standard. Defendant argues that plaintiff must prove that defendant intended to cause harm to Sieber, and plaintiff argues that it is only necessary to prove that defendant intended the act itself. The parties' disagreement is understandable, as is their difficulty in supporting their arguments, because both parties erroneously assume that Count I alleges a substantively distinct tort from that alleged in Count II.

 Cowan involved a claim that an insurance company was obligated to satisfy an outstanding judgment entered against the plaintiff in a previous lawsuit based on assault and battery. The insurance company contended that the incident fell within the policy's exclusion for intentional torts. In its discussion of the scope of the exclusion, the court stated:

Precedent to a determination of the issues actually adjudicated in the [previous] litigation, we think it appropriate to note some general observations on the nature of assault and battery and self-defense, and their relationship to the exclusionary clause in question. Although the exclusion clause becomes operative only when a specific intent to harm is demonstrated, the intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm, but rather an intent to bring about a result which will invade the interests of another in a way that the law will not sanction. (Prosser, Law of Torts, § 8, p. 31.) Accordingly, the gist of the action for battery is not the hostile intent of the defendant, but rather the absence of consent to the contact on the part of the plaintiff. (Prosser, § 9, p. 36.)

 22 Ill. App. 3d at 893, 318 N.E.2d at 323. Cowan did not describe a distinct tort of "intentional tort," but merely discussed the nature of intent as it relates to the torts of assault and battery. Furthermore, the court specifically stated that intent was not "the gist of the action for battery." Id. Thus the court's discussion of intent must be viewed not in a vacuum but as it relates to the scienter element of a specific tort such as battery.

 In this case, the standard of tort recovery in the context of a contact sport such as polo is well established. As stated in Nabozny, plaintiff must prove that defendant acted "either deliberate[ly], wilful[ly] or with a reckless disregard for the safety of the other player." 31 Ill. App. 3d at 215, 334 N.E.2d at 261. *fn2" Plaintiff may satisfy this standard by proving that defendant acted with intent, as alleged in Count I, or that defendant acted wilfully and in wanton disregard of Sieber's safety, as alleged in Count II. Counts I and II essentially allege the same tort, and when read together they allege that defendant is liable under the Nabozny standard. Indeed, Count I essentially is redundant, for intent is subsumed in the wilful and wanton misconduct count -- "an action for willful and wanton misconduct requires a showing that injury was caused intentionally or under circumstances exhibiting a reckless disregard for the safety of others." Hough v. Mooningham, 139 Ill. App. 3d 1018, 1021, 487 N.E.2d 1281, 1284, 94 Ill. Dec. 404 (5th Dist. 1986), citing Lynch v. Board of Education of Collinsville, 82 Ill. 2d 415, 429, 412 N.E.2d 447, 457, 45 Ill. Dec. 96 (1980). See also Keller v. Mols, Bernesak v. Catholic Bishop of Chicago, 87 Ill. App. 3d 681, 686, 409 N.E.2d 287, 291, 42 Ill. Dec. 672 (1st Dist. 1980). The Court, therefore, shall treat the two counts as if they were combined in one count. *fn3"

 Summary judgment is warranted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The question raised by defendant's summary judgment motion is whether there exists a genuine dispute over the factual issue of defendant's state of mind. Defendant contends that plaintiff has produced insufficient evidence that defendant acted deliberately, wilfully or with reckless disregard for plaintiff's safety to enable plaintiff to present a case to the jury.

 Where, as here, plaintiff bears the burden of proof, a defendant who moves for summary judgment on the basis that there is no genuine issue of material fact need not produce evidence showing the absence of a genuine issue. Celotex v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). Once defendant points out the absence of a genuine issue, it becomes plaintiff's burden to present sufficient admissible evidence to demonstrate the existence of a jury question. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-249, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986), quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89, 88 S. Ct. 1575-1592, 20 L. Ed. 2d 569 (1968); Toro Co. v. Krouse, Kern & Co., 827 F.2d 155, 162-63 (7th Cir. 1987). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510 (emphases in original). Thus plaintiff "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). Plaintiff must produce sufficient evidence to allow a reasonable jury to return a verdict in her favor. Anderson, 477 U.S. at 248, 106 S. Ct. at 2510. In determining whether plaintiff has met this standard, the Court does not weigh the evidence or make credibility determination. See Anderson, 477 U.S. at 255, 106 S. Ct. at 2513; Stewart v. RCA Corp., 790 F.2d 624, 629 (7th Cir. 1986). Rather, plaintiff's evidence "is to be believed, and all justifiable inferences are to be drawn in [her] favor." Anderson, 477 U.S. at 254, 106 S. Ct. at 2513. It is for this reason that cases involving intent are generally inappropriate for summary judgment. See Askew v. Bloemker, 548 F.2d 673, 679 (7th Cir. 1976). See also Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir. 1988).

 In this case, looking at the evidence in the light most favorable to plaintiff, plaintiff has produced sufficient evidence of deliberateness, wilfulness or reckless disregard to survive defendant's motion for summary judgment. It reasonably can be concluded that David Wigdahl was approaching the ball at a faster rate of speed than were Robert Sieber and Dick Kuhn. *fn4" Sieber and Kuhn were approaching the ball from close to the line in which the ball had traveled, *fn5" perhaps as much as 20 to 30 degrees to the left. *fn6" Wigdahl was approaching the ball from the right, at a greater angle than Sieber and Kuhn. *fn7" Wigdahl called "leave it" to Dick Kuhn, his teammate, who then rode upfield past the ball. *fn8" Sieber attempted to follow Kuhn. *fn9" Wigdahl raised his mallet, an action used by some players to request that the officials call a foul, although such a request is not permitted by the rules. *fn10"

 As Wigdahl approached the ball, he had a clear view of the playing field and was in a position where he was able to see Sieber. *fn11" By raising his mallet, he apparently requested a foul to be called on Sieber, *fn12" and it can be inferred, therefore, that he did see Sieber. Wigdahl testified that he thought Sieber had crossed the line of the ball. *fn13" Although Wigdahl was approaching the ball from the right, and could have taken a backhand shot from the left side of his horse, he chose to cross the line of the ball to position himself for a stronger forehand shot from the right side of his horse. *fn14" He made no attempt to avoid running into Sieber, although he had an opportunity to take evasive action. *fn15"

 While his mallet was still raised, Wigdahl collided with Sieber. *fn16" Wigdahl's horse struck the rear end and hind legs of Sieber's horse behind the saddle. *fn17" Wigdahl knew that this is a very unstable point and is thus the most dangerous place for a horse to be hit. *fn18" Sieber's horse stumbled and started to recover, but Wigdahl kept on riding despite an opportunity to pull away. Wigdahl's horse thus hit Sieber's horse a second time, knocking it down and causing Sieber's head to strike the ground. *fn19" In the view of witnesses, Wigdahl's actions were not legal and constituted a foul. *fn20" Sieber, in contrast, did not commit a foul. *fn21"

 Based on this evidence, described in the light most favorable to plaintiff, a jury reasonably could conclude that defendant's action was deliberate, wilful or taken with reckless disregard for Sieber's safety. The jury could find that defendant saw the play developing, saw Sieber approaching the ball, and deliberately rode into Sieber's horse in an attempt to knock the horse over. That defendant's actions may have been taken only in the pursuit of a competitive advantage does not, as defendant argues, mandate denial of recovery. Bad motive is not an element of plaintiff's claim, ...

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