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January 27, 1994


Appeal from Circuit Court of McLean County. No. 91L257. Honorable William T. Caisley, Judge Presiding.

Released for Publication March 2, 1994. As Corrected March 16, 1994. Petition for Leave to Appeal Allowed June 2, 1994.

Honorable Robert W. Cook, J., Honorable James A. Knecht, J., Concurring, Honorable Frederick S. Green, J., Dissenting

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

Plaintiff, Sean Pfister, brought this action for an injury he suffered while he and defendant, Terry Shusta, were kicking an aluminum can in a college dormitory lobby. The trial court granted summary judgment for defendant, ruling plaintiff's complaint failed to state a negligence cause of action. The trial court held the can-kicking activity was a contact sport and plaintiff was accordingly required to allege and prove wilful and wanton conduct, not mere negligence. We reverse.

Plaintiff and defendant were both students at Illinois State University on February 9, 1990, when they attended a party held at Watterson Towers dormitory. Plaintiff, defendant, and two other students eventually left the party to go to the lobby where they waited for friends. While waiting, they began kicking a crushed aluminum can which was on the floor. They established teams with plaintiff and defendant on opposite sides and goals at each end of the hallway, "kind of like hockey."

Defendant stated in a deposition that plaintiff "pushed" him. Defendant then pushed plaintiff off of him, causing plaintiff to fall backward against a wall on which there was a glass door which encased a fire extinguisher. As a result, plaintiff's hand went through the glass door and was injured. At the time of the incident "there was a lot of physical contact, pushing each other back and forth to get control of the can," which was between the parties' feet. Plaintiff stated in his deposition that he was moving toward the can, near the wall with the glass door, when defendant pushed him from behind. Plaintiff put his hand up "for support" and then it went through the glass.

Summary judgment is appropriate where the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ( Gresham v. Kirby (1992), 229 Ill. App. 3d 952, 954, 595 N.E.2d 201, 203; Olaf v. Christie Clinic Association (1990), 200 Ill. App. 3d 191, 193-94, 558 N.E.2d 610, 612; Cronic v. Doud (1988), 168 Ill. App. 3d 665, 668, 523 N.E.2d 176, 178.) It is a question of law whether a legal duty of care is owed by a defendant to a plaintiff. Benner v. Bell (1992), 236 Ill. App. 3d 761, 764-65, 602 N.E.2d 896, 898; Gresham, 229 Ill. App. 3d at 955, 595 N.E.2d at 203; W. Keeton, Prosser & Keeton on Torts § 37, at 236 (5th ed. 1984).

Parties generally owe each other the duty to refrain from negligence, that is, the duty to act reasonably under all the circumstances, but an exception is said to exist when the parties are engaged in a contact sport. That exception provides that a plaintiff injured while participating in a contact sport may only recover from another participant if the injury was due to the other's wilful or wanton conduct. See Keller v. Mols (1987), 156 Ill. App. 3d 235, 237, 509 N.E.2d 584, 586 (plaintiff may not recover for injuries incurred during an informal floor hockey game where defendant's conduct was merely negligent); Oswald v. Township High School District No. 214 (1980), 84 Ill. App. 3d 723, 727, 406 N.E.2d 157, 159-60 (plaintiff must show wilful conduct or reckless disregard of plaintiff's safety to recover for injury during physical education class basketball game).

The seminal case for the contact sports exception is Nabozny v. Barnhill (1975), 31 Ill. App. 3d 212, 334 N.E.2d 258. However, Nabozny is ambiguous on the appropriate theory of liability for participants in contact sports. (See Note, Participant's Liability for Injury to a Fellow Participant in an Organized Athletic Event, 53 Chi.-Kent L. Rev. 97, 108 (1976).) Nabozny held "a player is liable for injury in a tort action if his conduct is such that it is either deliberate, wilful or with a reckless disregard for the safety of [others]." ( Nabozny, 31 Ill. App. 3d at 215, 334 N.E.2d at 261.) The claim which was allowed to stand in Nabozny was one for ordinary negligence. ( Nabozny, 31 Ill. App. 3d at 213, 334 N.E.2d at 259.) Some commentators have observed that Nabozny may have established an ordinary negligence standard for participants of contact sports. (See Note, Injuries Resulting from Nonintentional Acts in Organized Contact Sports: The Theories of Recovery Available to the Injured Athlete, 12 Ind. L. Rev. 687, 701-02 (1979) (the Nabozny court "enunciated nothing more than an ordinary negligence standard of conduct, narrowly tailored to further the policy considerations unique to the activity to which it is applied"); Note, Participants Liability for Injury to a Fellow Participant in an Organized Athletic Event, 53 Chi.-Kent L. Rev. 97, 105 (1976) ("one interpretation is that Nabozny enunciates an ordinary negligence standard of conduct").) Even with a negligence standard, the fact that the parties are engaged in a sport may be an important circumstance to be considered in determining what is reasonable.

Other commentators have viewed Nabozny as setting forth a recklessness standard. (See Narol, Sports Torts: Emerging Standard of Care, 26 Trial 20 (1990); Notes, Sports Violence: A Matter of Societal Concern, 55 Notre Dame L. 796, 802 (1980) (the Nabozny court "rejected the mere negligence standard and opted for the 'reckless disregard' standard").) As mentioned, some Illinois courts have interpreted Nabozny as setting out a recklessness or wilful and wanton conduct standard (see Keller, 156 Ill. App. 3d at 237, 509 N.E.2d at 586; Novak v. Virene (1991), 224 Ill. App. 3d 317, 320, 586 N.E.2d 578, 579; Oswald, 84 Ill. App. 3d at 727, 406 N.E.2d at 159-60), as have courts in other jurisdictions (see Bangert v. Shaffner (Tex. Ct. App. 1993), 848 S.W.2d 353, 356; Marchetti v. Kalish (1990), 53 Ohio St. 3d 95, 97, 559 N.E.2d 699, 701; Dotzler v. Tuttle (1990), 234 Neb. 176, 180, 449 N.W.2d 774, 778; Gauvin v. Clark (1989), 404 Mass. 450, 454, 537 N.E.2d 94, 97; Ross v. Clouser (Mo. 1982), 637 S.W.2d 11, 14).

The rule of the Restatement of Torts is that one who consents to conduct "cannot recover in an action of tort for the conduct or for harm resulting from it." (Restatement (Second) of Torts § 892A(1), at 364 (1979).) A plaintiff who has entered voluntarily into some relation with defendant which he knows to involve a risk is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility. (Restatement (Second) of Torts § 496A, Comment c (2), at 561 (1965).) The Restatement makes it clear there cannot be recovery for either intentional or negligent conduct sanctioned by game rules. The key question under the Restatement is whether the contact is permitted by the rules or usages of the game. Restatement (Second) of Torts § 50, Comment b, at 86 (1965) ("Taking part in a game manifests a willingness to submit to such bodily contacts or restrictions of liberty as are permitted by its rules or usages").

The rule of the Restatement is preferable to a rule that wilful and wanton conduct, but only wilful and wanton conduct, may result in liability where the parties are engaged in a contact sport. Under the Restatement, intentional conduct which is within the rules or usages of the game might not result in liability; on the other hand, negligent conduct not within the rules or usages of the game may result in liability. In a baseball game a runner attempting to score may anticipate harm if he intentionally collides with a catcher who is concentrating on taking a throw, but there will be no liability if such a collision is within the usages of the game. On the other hand, a player who angrily and negligently throws a bat after he has struck out may be liable if that conduct is not within the usages of the game. Injection of the wilful and wanton concept into these cases does not add clarity or aid analysis. The focus should be on whether the conduct was within the rules and usages of the game, not whether the conduct falls within the imprecise definition of wilful and wanton.

Recently, the Wisconsin Supreme Court in Lestina v. West Bend Mutual Insurance Co. (1993), 176 Wis. 2d 901, 501 N.W.2d 28, rejected the recklessness standard in an action by a soccer player who was injured by a player from the opposing team. The Lestina court held that the negligence standard, properly understood and applied, accomplishes the objectives sought by the courts adopting the recklessness standard. The court held that in determining whether a player's conduct constituted actionable negligence, the fact finder should consider various material factors, including the rules and regulations governing the sport, the generally accepted ...

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