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February 4, 1994


In the Circuit Court of Cook County. Honorable Frank J. Orlando, Judge Presiding.

Released for Publication March 18, 1994. As Corrected May 26, 1994.

Giannis, Egan, McNamara

The opinion of the court was delivered by: Giannis

JUSTICE GIANNIS delivered the opinion of the court:

On April 18, 1990, plaintiff, Norman Landrum, brought this two-count tort action against defendant, Joseph Gonzalez. The complaint alleged that plaintiff suffered injuries on September 24, 1988, during the course of an informal softball game. Plaintiff's complaint alleged wilful misconduct in count I and simple negligence in count II. Defendant filed a motion for summary judgment on count II of the complaint which was granted by the trial court. The parties proceeded to a bench trial on count I. Following the presentation of plaintiff's evidence, the trial court entered judgment for the defendant. Plaintiff appeals both the trial court's decision to grant summary judgment on count II of the complaint and on its decision finding defendant did not act wilfully and wantonly. The appellate court has jurisdiction pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301).

The record establishes that plaintiff worked at a large Chicago bakery. Once a month during the summer months a committee of his fellow employees would host a picnic at the Winchester forest preserves. Company employees, their spouses and their children were invited to play 16-inch softball at the picnics. The games were played on a grassy area where a make-shift softball diamond had been set up. The softball equipment, including the bases, were brought by those in attendance. Three or four softball games were played at each picnic with teams being chosen just before the start of each game. The players did not use athletic equipment such as mitts or protective gear. The games were not governed by any special rules beyond those generally applicable to the game of softball.

On Saturday, September 24, 1988, plaintiff and defendant played in the third softball game of the day on opposing teams. Plaintiff was the first baseman. At one point during the game defendant was a baserunner on first base. The batter hit the ball toward left field. The ball dropped in front of the left fielder and the left fielder threw the ball towards the infield. The ball was overthrown and the shortstop was unable to catch it. The ball rolled toward plaintiff who had moved to back up the throw. The plaintiff was injured while the defendant was advancing from first to second base. Plaintiff testified that when he was bending down to field the overthrown ball, he felt two hands on his hips and then a push.

Joe Steven was playing centerfield at the time of plaintiff's injury and witnessed the contact between the plaintiff and the defendant. At the bench trial he testified that he believed defendant had pushed plaintiff. He also stated, however, that he did not believe defendant meant to hurt plaintiff. He stated that the only way defendant could have gotten to second base was to go around the plaintiff as he was fielding the ball. Clifton Taylor, the first base coach, indicated that the contact between the players occurred "right between first and second." He also stated, however, that he did not remember whether defendant ran inside the baseline or was more towards the infield side of the line. He said that defendant, who weighed more than 200 pounds, looked like a "Mack truck." After the contact between plaintiff and defendant plaintiff stumbled and fell on his shoulder. He suffered serious injury.

In granting defendant's motion for summary judgment on plaintiff's negligence count, the trial court found that because softball is a "contact sport," plaintiff could recover only upon a showing that his injuries were caused by defendant's wilful and wanton misconduct. After the close of plaintiff's case in chief on the remaining wilful and wanton misconduct count, the trial court granted defendant's motion for a judgment pursuant to Ill. Rev. Stat. 1991, ch. 110, par. 2-1110.

Plaintiff first argues that the trial court improperly granted defendant's motion for summary judgment on count II of the complaint. The question presented is whether liability for injuries sustained during the course of an informal softball game may be predicated upon ordinary negligence, or whether wilful and wanton misconduct must be shown to permit recovery.

In Illinois, summary judgment is governed by the provisions of section 2-1005 of the Code of Civil Procedure. (Ill. Rev. Stat. 1991, ch. 110, par. 2-1005.) Summary judgment is recognized to be a drastic remedy which is properly granted only where the movant's right to it is clear and free from doubt. ( Vicorp Restaurants v. Corinco Insulating Co. (1991), 222 Ill. App. 3d 518, 584 N.E.2d 229.) The purpose of the summary judgment procedure is to determine whether there are any genuine issues of material facts between the parties. ( Vallejo v. Mercado (1991), 220 Ill. App. 3d 1, 580 N.E.2d 655.) Summary judgment should be granted only if the pleading, depositions, admissions and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Dash Messenger Service, Inc. v. Hartford Insurance Co. (1991), 221 Ill. App. 3d 1007, 582 N.E.2d 1257.

In order to recover in a negligence action, plaintiff must establish that defendant owed plaintiff a duty of care, that defendant breached that duty, and that plaintiff's injury proximately resulted from such breach. ( Rowe v. State Bank of Lombard (1988), 125 Ill. 2d 203, 531 N.E.2d 1358.) Although the issues of breach of duty and proximate cause are factual matters, the question of the existence of a duty is one of law. ( Curtis v. County of Cook (1983), 98 Ill. 2d 158, 456 N.E.2d 116.) In determining whether a duty exists, the trial court must consider whether a relationship existed between the parties which imposed a legal obligation upon one party for the other's benefit. ( Rowe, 125 Ill. 2d at 215.) Duty is defined as "a legal obligation to conform one's conduct to a certain standard for the benefit or protection of another." Rabel v. Illinois Wesleyan University (1987), 161 Ill. App. 3d 348, 356, 514 N.E.2d 552; Duncan v. Rzonca (1985), 133 Ill. App. 3d 184, 478 N.E.2d 603.

In this case the parties dispute the proper standard of care to be applied to the defendant's conduct in running between first and second base. Plaintiff claims that defendant's conduct in colliding with him violated the defendant's general duty of "due care" applied in any negligence suit (the "ordinary negligence" standard). Plaintiff alleged in his complaint that the rules of softball required defendant to avoid the contact which ultimately injured plaintiff. Defendant responds that because the parties were engaged in a softball game in which contact between the players is common and expected, a higher standard of care must be applied, specifically the "wilful and wanton" standard first set out in Nabozny v. Barnhill, (1975), 31 Ill. App. 3d 212, 334 N.E.2d 258.

In Nabozny a negligence suit was brought on behalf of a high school soccer player who had been kicked in the head by an opponent during the course of a match. The evidence indicated that the defendant kicked the plaintiff in violation of the rules of the game. Nonetheless, the trial court directed a verdict in favor of the defendant. On appeal the Nabozny court reversed and remanded the case. The court recognized that there was a general need to protect "vigorous participation in sports" between the participants which would necessarily be chilled by applying an ordinary negligence standard of care. The court specifically rejected a claim by the defendant, however, that participants in organized sports activities must be given total tort immunity when their actions cause injury. The court instead adopted a middle position and held that the defendant could be liable for tort injury only if his conduct was deliberate or wilful, or if ...

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