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06/30/95 JOHN SAVINO v. SCOTT ROBERTSON

June 30, 1995

JOHN SAVINO, PLAINTIFF-APPELLANT,
v.
SCOTT ROBERTSON, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable James P. McCourt, Judge Presiding.

Petition for Leave to Appeal Denied January 31, 1996.

The Honorable Justice McCORMICK delivered the opinion of the court: Scariano, P.j., and DiVITO, J., concur.

The opinion of the court was delivered by: Mccormick

JUSTICE McCORMICK delivered the opinion of the court:

Plaintiff John Savino brought a negligence action against defendant Scott Robertson after plaintiff was struck and injured in the eye by a hockey puck shot by defendant. The trial court granted defendant's subsequent motion for summary judgment, but allowed plaintiff to amend the complaint to allege that defendant's conduct was wilful and wanton. Upon another motion by defendant, the trial court granted summary judgment in favor of defendant on the amended complaint. On appeal from both orders, plaintiff raises the following issues for our consideration: (1) whether a plaintiff must plead and prove wilful and wanton conduct in order to recover for injuries incurred during athletic competition; and (2) whether there was a genuine issue of material fact as to whether defendant's conduct was wilful and wanton in injuring plaintiff. We affirm.

Plaintiff and defendant were teammates in an amateur hockey league sponsored by the Northbrook Park District. Plaintiff and defendant also had met in various "pick-up" games prior to playing in the Northbrook league, but they were neither friends nor enemies. On April 20, 1990, plaintiff and defendant were warming up prior to a game. During warm-up, teams skate around and behind their goal on their half of the ice. Plaintiff was on the ice, "to the right of the face off circle in front of the net." Defendant shot a puck that missed the goal and hit plaintiff near the right eye. Plaintiff lost 80% vision in that eye.

On September 11, 1990, plaintiff filed a one-count complaint against defendant alleging that defendant was negligent and failed to exercise ordinary care in shooting the puck. Specifically, plaintiff alleged that defendant (a) failed to warn plaintiff that he was going to shoot the puck toward plaintiff; (b) failed to wait until a goalie was present before shooting the puck; (c) failed to warn others that he was shooting the puck; (d) failed to follow the custom and practice of the Northbrook Men's Summer League which required the presence of a goalie at the net before shooting; and (e) failed to keep an adequate lookout.

Defendant filed his answer to the complaint and, after interrogatories and discovery depositions were taken, defendant moved for summary judgment. (735 ILCS 5/2-1005 (West 1992).) Defendant argued that he was entitled to judgment as a matter of law because plaintiff alleged ordinary negligence. To be entitled to relief for injuries incurred during athletic competition, defendant argued, plaintiff had to plead and prove wilful and wanton conduct or conduct done in reckless disregard for the safety of others. The trial court granted defendant's motion for summary judgment and denied plaintiff leave to amend count I of the complaint. Upon reconsideration, the trial court granted plaintiff leave to file an amended complaint to allege a count II based on wilful and wanton conduct.

Defendant filed his answer to plaintiff's subsequent amended complaint and the parties engaged in discovery as to count II of that complaint. Defendant later filed another motion for summary judgment. Defendant argued that, due to plaintiff's admission that his injury was caused by an accident, plaintiff's case presented no genuine issue of material fact with regard to defendant's alleged wilful and wanton conduct. Defendant further argued that plaintiff could not show that defendant's action was anything more than an ordinary practice shot normally taken during warm-up sessions.

Plaintiff, on the other hand, argued in his response to defendant's motion that ordinary negligence should be the standard applied to his case rather than wilful and wanton conduct, because, since the hockey game had not officially begun, he was not a participant at the time of his injury. Plaintiff attached the affidavit of Thomas Czarnik, a hockey coach at Deerfield High School, to his response. According to Czarnik, it was the custom of amateur hockey leagues to wait until the goalie was present in the net before any practice shots were taken.

Defendant also took Czarnik's deposition. In that deposition, Czarnik described himself as a 15-year acquaintance of plaintiff. He and plaintiff grew up in the same neighborhood and his brother had been plaintiff's schoolmate. Plaintiff's brother Mike also was a friend of one of Czarnik's brothers. Czarnik further stated that he had been a hockey player since childhood and had coached various youth hockey organizations. The Northbrook Hockey League played what was known as "non-check" hockey. Non-check meant noncollision. However, there was still bodily contact in non-check hockey and, in Czarnik's opinion, hockey, regardless of the type, is a contact sport. Czarnik had no knowledge of the rules and usages of the Northbrook Hockey League and had no firsthand knowledge of the incident.

Czarnik also stated that he had seen players in adult hockey leagues take shots at open goals, that is, goals without a goalie present, during the warm-up period and that he had taken shots at open goals. According to Czarnik, the warm-up period was a part of the game of hockey even though the players are not technically playing a game. Czarnik considered plaintiff's injury an accident.

Defendant attached excerpts of Czarnik's deposition in support of his reply to plaintiff's response to the motion for summary judgment. Defendant argued that Czarnik's responses demonstrated that plaintiff could not show, as a matter of law, that defendant's conduct was wilful or wanton. Defendant also contended that Czarnik was not a proper expert to render an opinion in this case, given his lack of familiarity with adult hockey leagues and lack of knowledge of the rules and usages of the Northbrook Summer Men's Hockey League. The trial court granted defendant's motion for summary judgment. Plaintiff now appeals from both orders of the trial court granting summary judgment in favor of defendant.

Our review of the trial court's grant of summary judgment is de novo. ( Superior Investment & Development Corp., Inc. v. Devine (1993), 244 Ill. App. 3d 759, 767, 614 N.E.2d 302, 185 Ill. Dec. 168.) The granting of summary judgment is proper when the pleadings, depositions and affidavits show that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. ( Estate of Henderson v. W.R. Grace Co. (1989), 185 Ill. App. 3d 523, 527, 541 N.E.2d 805, 133 Ill. Dec. 594.) In determining whether summary judgment is proper, the court must construe the evidence in a light ...


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