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10/26/95 SEAN PFISTER v. TERRY SHUSTA

October 26, 1995

SEAN PFISTER, APPELLEE,
v.
TERRY SHUSTA, APPELLANT.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of McLean County, the Hon. William T. Caisley, Judge, presiding.

The Honorable Justice McMORROW delivered the opinion of the court. Justice Miller, dissenting: Justice Harrison, also dissenting:

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

This appeal presents the question of whether the contact sports exception to liability premised on negligence applies to injuries caused when two college students spontaneously began to kick a crushed soda can in the lobby of a college dormitory. Under the contact sports exception, participants in contact sports may be held liable for injuries to co-participants caused by wilful and wanton or intentional misconduct, but are not liable for injuries caused by ordinary negligence. Oswald v. Township High School District No. 214 (1980), 84 Ill. App. 3d 723, 40 Ill. Dec. 456, 406 N.E.2d 157; Nabozny v. Barnhill (1975), 31 Ill. App. 3d 212, 334 N.E.2d 258.

Sean Pfister (hereinafter plaintiff) and Terry Shusta (hereinafter defendant) were college students at Illinois State University. While waiting in a dormitory lobby for friends, plaintiff, defendant and two other students spontaneously began kicking a crushed aluminum soda can. The four students divided into two teams with two persons on each team, and set up informal goals against the walls of the dormitory lobby. Each team attempted to kick the crushed can into the opposing team's goal. Plaintiff allegedly pushed defendant toward a wall in an attempt to gain control of the can. Defendant responded by allegedly pushing plaintiff, causing plaintiff to fall. While attempting to break his fall, plaintiff put his left hand and forearm through the glass door of a fire extinguisher case on the wall of the dormitory. Plaintiff sustained injuries to his left hand and forearm. The entire episode took 5 to 10 minutes.

Plaintiff filed a complaint against defendant alleging that his injuries were caused by defendant's negligence. In response, defendant filed a motion for summary judgment contending that the activity at issue constituted a contact sport, and therefore he could not be held liable for injuries caused by simple negligent conduct. In support of his summary judgment motion, defendant attached excerpts from the parties' depositions. Plaintiff admitted to can kicking, a degree of team play, and the informal setting of goal areas. Defendant generally agreed with plaintiff's recounting of the activity but likened the activity to hockey and soccer. Defendant based this analogy on his claim that the parties had divided themselves into teams, established goals and had no out-of-bounds area. Defendant also testified in his deposition that the group understood that physical "clubbing" or punching was not permitted.

Finding that the activity at issue fell within the contact sports exception to liability based on the standard of ordinary care applicable to negligence cases, the circuit court of McLean County granted defendant's motion for summary judgment. The circuit court held that the plaintiff failed to state a viable cause of action because he failed to allege wilful and wanton misconduct by defendant. Plaintiff appealed the summary judgment order. The appellate court reversed the circuit court's order in favor of the defendant. (256 Ill. App. 3d 186, 627 N.E.2d 1260, 1994 Ill. App. LEXIS 73, 194 Ill. Dec. 618.) We allowed the defendant's petition for leave to appeal. 145 Ill. 2d R. 315.

Generally, a person owes a duty of ordinary care to guard against injuries to others that may result as a reasonably probable and foreseeable consequence of negligent conduct. ( Widlowski v. Durkee Foods (1990), 138 Ill. 2d 369, 373, 150 Ill. Dec. 164, 562 N.E.2d 967.) However, the Illinois appellate court has established an exception to the standard of ordinary care where injuries are sustained by participants engaging in contact sports. Under this judicially created exception to the standard of ordinary care, voluntary participants in contact sports are not liable for injuries caused by simple negligent conduct; however, they owe each other a duty to refrain from wilful and wanton or intentional misconduct and are liable for injuries caused by wilful and wanton misconduct. See, e.g., Landrum v. Gonzalez (1994), 257 Ill. App. 3d 942, 196 Ill. Dec. 165, 629 N.E.2d 710; Nabozny v. Barnhill (1975), 31 Ill. App. 3d 212, 334 N.E.2d 258.

The appellate court created and adopted the wilful and wanton liability requirement for voluntary participants in sports-related conduct in Nabozny v. Barnhill (1975), 31 Ill. App. 3d 212, 334 N.E.2d 258. In Nabozny, a member of a high school soccer team kicked the opposing team's goalie in the head in violation of a soccer rule intended to protect participants of the game. The court created a narrow exception to the standard of ordinary care in order "to control a new field of personal injury litigation." ( Nabozny, 31 Ill. App. 3d at 215.) In limiting liability for participants in contact sports, the court held that a participant would be liable for injuries caused during a sports game if the participant's conduct was "either deliberate, wilful or with a reckless disregard for the safety of the other player." Nabozny, 31 Ill. App. 3d at 215.

Appellate court decisions have consistently interpreted the limited duty of care for contact sports participants under Nabozny as the duty to refrain from wilful and wanton or intentional misconduct. Since Nabozny, the appellate court has applied the wilful and wanton standard to cases in which participants in both formal and informal sporting activities were injured as a result of the conduct of their co-participants. See Landrum v. Gonzalez (1994), 257 Ill. App. 3d 942, 945, 196 Ill. Dec. 165, 629 N.E.2d 710 (recreational softball); Keller v. Mols (1987), 156 Ill. App. 3d 235, 108 Ill. Dec. 888, 509 N.E.2d 584 (unsupervised game of floor hockey on backyard patio among minors); Ramos v. City of Countryside (1985), 137 Ill. App. 3d 1028, 92 Ill. Dec. 607, 485 N.E.2d 418 (summer recreation program game of "bombardment"); Oswald v. Township High School District No. 214 (1980), 84 Ill. App. 3d 723, 40 Ill. Dec. 456, 406 N.E.2d 157 (high school physical education class basketball).

This court and the legislature have defined wilful and wanton conduct as a course of action which shows actual or deliberate intent to harm or which, if the course of action is not intentional, shows an utter indifference to or conscious disregard for a person's own safety or the safety or property of others. ( Ziarko v. Soo Line R.R. Co. (1994), 161 Ill. 2d 267, 273, 204 Ill. Dec. 178, 641 N.E.2d 402; see, e.g., 745 ILCS 10/1-210 (West 1992); see also Illinois Pattern Jury Instructions, Civil, No. 14.01 (3d ed. 1993).) Wilful and wanton conduct is "a hybrid between acts considered negligent and behavior found to be intentionally tortious. *** Under the facts of one case, willful and wanton misconduct may be only degrees more than ordinary negligence, while under the facts of another case, willful and wanton acts may be only degrees less than intentional wrongdoing." Ziarko, 161 Ill. 2d at 275-76.

Some jurisdictions have explicitly adopted the logic of Nabozny and its progeny and applied the "wilful and wanton" standard, or the comparable local standard, to injuries sustained by participants in a variety of formal and informal sports activities where physical contact among the participants is inherent. See Crawn v. Campo (1994), 136 N.J. 494, 504, 643 A.2d 600, 607 (softball); Knight v. Jewett (1992), 3 Cal. 4th 296, 336, 834 P.2d 696, 722, 11 Cal. Rptr. 2d 2, 28 (informal touch football); Connell v. Payne (Tex. Ct. App. 1991), 814 S.W.2d 486, 488 (polo match); Marchetti v. Kalish (1990), 53 Ohio St. 3d 95, 97, 559 N.E.2d 699, 701 (child's game of kick the can); Dotzler v. Tuttle (1990), 234 Neb. 176, 180, 449 N.W.2d 774, 778 (pick-up game of basketball); Gauvin v. Clark (1989), 404 Mass. 450, 454, 537 N.E.2d 94, 96-97 (college hockey game); Kabella v. Bouschelle (1983), 100 N.M. 461, 463, 672 P.2d 290, 292 (informal tackle football game); Ross v. Clouser (Mo. 1982), 637 S.W.2d 11, 14 (softball); but see Lestina v. West Bend Mutual Insurance Co. (1993), 176 Wis. 2d 901, 501 N.W.2d 28 (negligence standard applied to adult recreational soccer).

The plaintiff asks this court to repudiate the contact sports exception in favor of the reasoning taken by the appellate court in this case. The appellate court abandoned the wilful and wanton standard adopted in the line of cases following Nabozny (see, e.g., Landrum v. Gonzalez (1994), 257 Ill. App. 3d 942, 196 Ill. Dec. 165, 629 N.E.2d 710), and instead applied the following five-part factual inquiry: (1) was the activity at issue a game; (2) was it played in an appropriate area; (3) did the game have rules or usages; (4) did the rules or usages permit the bodily contact which occurred; and (5) did the injury to the plaintiff arise from the contact which was permitted by the rules. (256 Ill. App. 3d at 190-91.) The appellate court based its decision on the Restatement (Second) of Torts as well as upon dicta in this court's decision in Osborne v. Sprowls (1981), 84 Ill. 2d 390, 399, 50 Ill. Dec. 645, 419 N.E.2d 913 ("Clearly, it may be negligent to play in areas inappropriate for such activity"). (See Restatement (Second) of Torts § 50, Comment b (Apparent Consent), at 86; § 496A, Comment c (2) (Assumption of the Risk), at 561; § 892A(1) (Effect of Consent), at 364.) Under the rationale of the appellate court, both intentional and negligent misconduct during participation in a game are immunized from liability if the conduct at issue is permitted by the rules or usages of the game. The appellate court reasoned that such misconduct is immunized because the participants have consented to the physical contact by virtue of their participation in the game. (256 Ill. App. 3d at 188-89.) Under this analysis, the characterization of the activity in question as a contact sport and the concurrent determination of whether the conduct that caused injury was wilful and wanton are irrelevant. The appellate court claimed that the "injection of the wilful and wanton concept into these cases does not add clarity or aid analysis." 256 Ill. App. 3d at 189.

We decline to adopt the approach suggested by the appellate court. It is difficult to understand how the appellate court's five-part inquiry into the rules of can kicking would clarify the determination of liability in this case. The physical contact at issue was the defendant's alleged pushing of the plaintiff which resulted in the plaintiff's fall and the plaintiff's subsequent attempt to break his fall by thrusting his arm through the glass door of a wall-mounted fire extinguisher cabinet. Under the appellate court's approach, if the alleged push was permitted by the rules and usages of can kicking as played by the parties, then there is no liability for the injurious consequences of the defendant's conduct. By participating in the game, the plaintiff would have given his consent to the physical contact permitted by the rules and usages of the game, and thus cannot recover under either the theories of negligence or intentional tort. (See Restatement (Second) of Torts § 892A(1), at 364; § 50, Comment b, at 86 ...


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