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May 5, 1995



Presiding Justice Cousins delivered the opinion of the court: Gordon and McNULTY, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

Plaintiff, Robert Geimer, sued the defendant, Chicago Park District, for injuries resulting from a game of touch football. Plaintiff claimed that defendant's referees acted wilfully and wantonly when they failed to expel an opponent from the game for his rough play before he injured the plaintiff. A jury found for the plaintiff and awarded damages of $100,000. Defendant filed a post-trial motion pursuant to section 2-1202 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1202 (West 1992)), requesting judgment notwithstanding the verdict or a new trial. The trial court denied the motion, from which defendant appeals. Defendant contends: (1) the referees did not have a common law duty or a "special duty" to protect the plaintiff from rough play or intentional misconduct during a sporting event; (2) the evidence failed to support a claim that the referees acted wilfully and wantonly; (3) section 3-108(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-108 (West 1992)) immunizes the park district for failure to supervise any activity on public property; (4) the undisputed evidence established that the referees were independent contractors; and (5) the trial court abused its discretion when it did not order a new trial based upon errors committed during the trial.

We reverse and remand.

In the autumn of 1984, plaintiff joined a touch football league operated by the defendant. The league supervisor, John Long, wrote the play and officiating rules and revised them for the league every year. Mr. Long hired John Hodel to manage and select the league's referees. The rules of the league called for penalties and immediate ejection from the game for fighting or unnecessary roughness.

On the night of October 15, 1984, plaintiff was playing in a touch football league game at one of defendant's parks. The game was refereed by two officials. During the game, the plaintiff and his teammates complained about the conduct of an opposing player identified as "Tony." On the first play of the game, Tony punched the plaintiff in the rib cage. He complained about Tony to the nearest referee, and the referee said he would watch him. The next play Tony hit the plaintiff with his arms extended, and the plaintiff again complained to the referee. On a later play where a pass landed in front of the plaintiff, Tony shoved the plaintiff and landed on top of him. Plaintiff's teammates complained to the referees after this play. On another play, Tony struck one of plaintiff's teammates and knocked him to the ground. Plaintiff's teammate then screamed at Tony, Tony shoved the teammate, the teammate shoved back, and then Tony threw a wild swing which missed. At this point, the referees and other players grabbed and separated the men. On another play, plaintiff was dragged to the ground by Tony after catching a pass. Several penalties were called against Tony, but he was not thrown out of the game. In the second half of the game, six similar incidents took place, including pushing, shoving, elbowing, tackling, and placing a forearm shiver.

Plaintiff's injuries occurred on the first play in overtime. A pass was thrown to plaintiff but went over his head. The ball then hit the ground and rolled, the whistle blew, and plaintiff stopped at the sideline. At this point, Tony hit the plaintiff directly from behind, threw him to the ground, and landed directly on top of him with the full force of his body weight. One of plaintiff's teammates described Tony's actions as coming up with his fists and arms into the plaintiff after the play was over, even though there was no contact other than hands for tagging purposes. The teammate said it was not a tag at all, but was basically a hit, a tackle, and a blatant cheap shot. From this tackle, plaintiff sustained a serious shoulder injury which required surgery.

Plaintiff filed a complaint alleging that the defendant's agents, the referees, wilfully and wantonly caused plaintiff's injuries either by failing to prevent Tony from committing acts of violence by failing to enforce the rules and regulations of the game, or by failing to expel Tony from the game by reason of violations of rules and regulations of the game.

Defendant's motion for summary judgment was denied, and a jury trial on the complaint began on August 25, 1992. Defendant's motion for a directed verdict was denied, and the trial was declared a mistrial on September 2, 1992, because of a deadlocked jury. The second trial began on January 6, 1993, and defendant's motion for a directed verdict was again denied. On January 8, 1993, the jury found for the plaintiff and awarded damages of $100,000 against the defendant. The jury also affirmatively answered two special interrogatories, agreeing that the referees were agents of the defendant and that the defendant had committed wilful and wanton conduct during the game in which plaintiff was injured. The trial court denied the defendant's post-trial motion for judgment notwithstanding the verdict (judgment n.o.v.), from which defendant now appeals.


Examining the defendant's first contention, we conclude that the defendant did not have a duty to prevent the intentional misconduct by a third party which harmed the plaintiff. The determination of whether a duty exists is a question of law for this court to decide. ( Bialek v. Moraine Valley Community Center College School District 524 (1994), 267 Ill. App. 3d 857, 860, 642 N.E.2d 825, 204 Ill. Dec. 924; Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387, 111 Ill. Dec. 944.) In determining whether a duty exists, a court must consider whether a relationship existed between the parties which imposed a legal obligation upon one party for the other's benefit. ( Kurtz v. Wright Garage Corp. (1994), 262 Ill. App. 3d 1103, 1107, 635 N.E.2d 897, 200 Ill. Dec. 558; Rowe v. State Bank (1988), 125 Ill. 2d 203, 215, 531 N.E.2d 1358, 126 Ill. Dec. 519.) For a particular case, a court must weigh the foreseeability and likelihood of injury against the burden to defendant of imposing a duty and the consequences of imposing this burden. ( Kurtz, 262 Ill. App. 3d at 1107; Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 47, 566 N.E.2d 1365, 153 Ill. Dec. 259.) A plaintiff cannot recover for either ordinary negligence or wilful and wanton misconduct unless the defendant has breached a duty owed to the plaintiff. ( Bialek, 267 Ill. App. 3d at 860; Helms v. Chicago Park District (1994), 258 Ill. App. 3d 675, 679, 630 N.E.2d 1016, 196 Ill. Dec. 851.) When there is no duty owed to the plaintiff, the defendant is entitled to judgment. Helms, 258 Ill. App. 3d at 679.

Illinois courts have generally upheld the common law principle that municipalities are not liable in tort and owe no duty to individual members of the general public for failure to prevent the tortious or unlawful acts of others. ( Thames v. Board of Education (1994), 269 Ill. App. 3d 210, 206 Ill. Dec. 440, 645 N.E.2d 445.) In general, one has no duty to control the conduct of another to prevent him from causing harm to a third party. ( Ventura v. Picicci (1992), 227 Ill. App. 3d 865, 867, 592 N.E.2d 368, 169 Ill. Dec. 881; Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 503, 520 N.E.2d 37, 117 Ill. Dec. 47; Restatement (Second) of Torts § 315 (1965).) One exception to this rule occurs when the defendant and wrongdoer have a "special relationship" as described in sections 316 through 319 of the Restatement: parent-minor child, master-servant, possessor of land-licensee, and a person who takes charge of another with dangerous propensities. ( Ventura, 227 Ill. App. 3d at 867; Johnson, 119 Ill. 2d at 503.) An exception to the rule also occurs when the defendant and the injured party have a "special relationship": common carrier and passenger, innkeeper and guest, business invitor and invitee, and voluntary custodian and protectee. ( Hernandez v. Rapid Bus Co. (1994), 267 Ill. App. 3d 519, 524, 641 N.E.2d 886, 204 Ill. Dec. 456; B.C. v. J.C. Penney Co. (1990), 205 Ill. App. 3d 5, 9, 562 N.E.2d 533, 150 Ill. Dec. 3; Restatement (Second) of Torts§§ 314A, 315, Comment (1965).) The foreseeability of intentional misconduct by a third party does not itself create any duty without a special relationship. B.C., 205 Ill. App. 3d at 10; Rowe, 125 Ill. 2d at 216.

A possible special relationship to apply in the instant case would be the "dangerous propensities" provision of ...

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