The opinion of the court was delivered by: Justice McMORROW
Docket Nos. 87895, 87910 cons.-Agenda 17-January 2000.
On July 30, 1990, plaintiff John Hills was attacked and beaten while coaching first base for a Little League baseball team. His attackers, Ted Loy, George Loy, Sr., and George Loy, Jr., were, respectively, the manager and assistant coaches for the opposing team, which was sponsored by defendant Bridgeview Little League Association (Bridgeview). The attack occurred during a Little League baseball tournament hosted by defendant Justice Willow Springs Little League (Justice).
After the attack, John Hills and his wife, plaintiff Patricia Hills, sued the Loys in the circuit court of Cook County, seeking damages for John Hills' personal injuries and for Patricia Hills' loss of consortium. Plaintiffs also sued Bridgeview and Justice, alleging that Bridgeview negligently failed to supervise and control the Loys, and that Justice negligently failed to protect John Hills from the attack. The Loys defaulted. *fn1 A jury found against Bridgeview and Justice, apportioning fault pursuant to section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117 (West 1994)) equally between the two. The trial judge did not permit the jury to include the Loys in the apportionment of fault. The appellate court affirmed the judgment of the circuit court. 306 Ill. App. 3d 13. We granted Bridgeview's and Justice's petitions for leave to appeal and consolidated the cases for review.
At trial, John Hills testified that, in the summer of 1990, he was the first base coach on an all-star Little League baseball team sponsored by the Lemont Little League Association. The players on the team were 14-year-olds. In July 1990, the Lemont team entered a Little League baseball tournament sponsored by Justice. To enter the tournament, the Lemont team payed a fee of $125 and posted a surety bond. The entrance fee was paid by the Lemont team's manager, Ray Chadorowski.
On July 30, 1990, as part of the regular tournament schedule, the Lemont team played a game against an all-star Little League team sponsored by Bridgeview. According to Hills, approximately 40 people were in attendance at the game. Hills stated that the Lemont and Bridgeview teams had played each other earlier in the tournament without incident and that, prior to July 30, he had never heard anything negative about the Bridgeview coaches or manager. Hills exchanged "hellos" in the parking lot with the manager of the Bridgeview team, Ted Loy, before the game began. As the teams took the field, Hills sensed no problems with anyone's behavior and had no indication that anything was out of the ordinary.
The playing field on which the July 30 game was held was one of two adjacent baseball fields located in the middle of a residential neighborhood in Willow Springs. The playing field was completely surrounded by a chain link fence approximately six feet high. Behind home plate, the fence rose higher, forming a protective backstop. Behind this backstop was an elevated booth or platform with a small public address system. An announcer sat in this booth during the game.
The areas where the teams sat during the games, the dugouts, were inside the fence that surrounded the field and were themselves protected by chain link fencing. The dugout on the first base side of the field had one opening that was approximately 10 feet from first base. During the game, the Bridgeview team occupied the first base dugout and the Lemont team occupied the dugout near third base. While their respective teams were batting, the first base coaches from each team stood in a designated area between first base and the Bridgeview dugout known as the coach's box and directed the players who safely reached first base to stop or to keep running. Bridgeview's first base coach was Ted Loy's nephew, 16-year-old George Loy, Jr.
Hills testified that, during the first inning, in an attempt to influence the first base umpire's calls, George Loy, Jr., began gesturing and yelling "safe, safe, safe" as the Bridgeview players crossed first base. The Lemont team called time-out. A conference was held among the home plate umpire, Scott Van Wagner, the first base umpire, Ed Jalovec, and the Bridgeview and Justice managers and coaches. During the conference, Van Wagner told the Bridgeview coaches to stop trying to influence the first base umpire's calls. Play resumed.
Hills testified that nothing unusual happened during the second inning. However, during the third or fourth inning, while Hills was in the coach's box at first base, Bridgeview assistant coach George Loy, Sr., began shouting at Hills from the Bridgeview dugout. According to Hills, George Loy, Sr., began yelling such things as "Hey you four eyed M-Fer, I'm going to kick your ass." Hills, who was facing the playing field, turned around and said, "What did you say?" Loy said, "You heard me," and began swearing again. Hills stated that he asked Loy, "For what?" Loy replied, "For what happened earlier in the first inning." Hills said, "You got to be kidding," and told Loy to "Forget about it, leave it go, it's only a kid's game, let it lie." Loy responded, "No way, I'm coming after you." According to Hills, Loy repeated similar statements at least four or five times during the third and fourth innings. Prior to the fifth inning, Hills told Ray Chadorowski and Harry Keeler, Lemont's third base coach, that George Loy, Sr., was yelling and swearing at him. Keeler asked Hills if he wanted to continue coaching first base. Hills said that he did.
During the fifth inning, George Loy, Sr., again swore at Hills. Hills ignored Loy and did not turn around. During the sixth inning, Hills' team scored several runs and took the lead in the game. Loy continued swearing, but he was now angrier and his voice was louder. Hills stated that, during this time, anyone who was in the Bridgeview dugout would have heard the swearing and shouting. Hills also stated that the first base umpire, who was standing in the field between first and second base, would have been able to hear the swearing. Hills stated that neither the first base umpire nor the Bridgeview manager, Ted Loy, told George Loy, Sr., to stop yelling and swearing. Hills acknowledged, however, that he never complained to Ted Loy, the first base umpire, or the home plate umpire about George Sr.'s behavior. Hills further stated that, despite the shouting and swearing, he was not nervous, he never thought that George Loy, Sr., was going to come out of the dugout and attack him, and that he "didn't really feel threatened at all."
At the end of the sixth inning, Hills bent down to pick up a scorebook that he had set on the ground near first base. Hills testified that, while he was bent over, he was suddenly hit in the back of the head and knocked to the ground on his hands and knees. Unable to see his attackers, Hills was then punched in the face and hit several times in the side and back. Hills struggled to get up and was again hit in the face and side. As Hills got to his feet, he was punched again. Hills stated that, at this point, he saw both George Loy, Sr., and George Loy, Jr., attacking him. George Loy, Jr., then dug his thumb into Hills' eye and tried to rip it out. After Hills was punched again in the body and face, there was a "lull" in the attack.
Hills testified that, during the "lull," he staggered in the direction of the fence that surrounded the playing field. He then saw George Loy, Sr., rushing toward him. Hills tried to protect himself but was unable to prevent Loy from punching him in the face and breaking his nose. George Loy, Sr., then punched Hills a couple more times. After this, there was another "lull" in the attack.
Hills stated that he was in a daze and was feeling his broken nose when he heard someone yell, "Oh, my God, look out, he's got a bat." Hills then saw, out of the corner of his eye, George Loy, Jr., swinging a baseball bat at his knees. Hills said that he was able to sidestep the blow so that the bat struck him on the inner side of the left knee. Hills then fell to the ground. Hills stated that the next thing he remembered was John O'Neill, a parent of one of the Lemont players, telling him to stay down and not to move. Hills could not recall being taken to the hospital or being treated in the emergency room. As a result of the attack, Hills suffered serious injuries and was hospitalized for five days.
Patricia Hills, John Hills' wife, testified that she attended the game between Bridgeview and Lemont with her nephew, Michael Putrow, and her mother, Clare Masterson. Patricia sat in the bleachers near the Lemont team, on the third base side of the playing field. Patricia estimated that approximately 20 people were seated in the Lemont bleachers. Patricia testified that the Lemont team had participated in a tournament sponsored by Justice in 1989 without incident. Patricia further stated that, prior to the game on July 30, 1990, she had not heard anything negative about the Bridgeview manager or coaches and that she had never seen a physical fight between coaches at a Little League baseball game.
According to Patricia, nothing unusual happened during the game until the sixth inning. During the sixth inning, Patricia saw George Loy, Sr., who was yelling, quickly move four to five feet out of the Bridgeview dugout toward her husband, gesture with his hands "in a threatening manner," and then return to the dugout. Patricia stated that she saw George Loy, Sr., come out of the dugout at least four times during the sixth inning. She also saw her husband, who had his back to the Bridgeview dugout, gesture with the back of his hand to indicate "get away from me, or just like leave me alone." Unable to make out what George Loy, Sr., was yelling, Patricia told her nephew, Michael Putrow, to go over to the first base side of the field and find out what Loy was saying to her husband. Patricia stated that, despite the fact that George Loy, Sr., was yelling and gesturing, she did not believe that he was actually going to try and beat her husband.
As the sixth inning ended, Patricia saw her husband bend down to pick up his scorebook. As he did so, George Loy, Sr., left the Bridgeview dugout and knocked him down. Stunned, Patricia jumped to her feet and started running to the first base side of the field, going around the fence that surrounded the playing area. Patricia stated that it took her 30 seconds to run from the third base bleachers to the first base side of the field. As she was running, Patricia saw George Loy, Sr., punch her husband all over his body.
When she got to the first base side of the field, Patricia stood behind the fence that surrounded the playing field and screamed for help. She saw the first base umpire, who was standing between first and second base, look at her husband and then turn and walk away. She also saw the home plate umpire and the game announcer turn and look toward her, but not respond. Patricia then saw Ted Loy, the Bridgeview manager, come out of the dugout and start beating and kicking her husband. George Loy, Jr., the first base coach for Bridgeview, then joined the attack and tried to gouge out John Hills' eye. The Bridgeview players then emptied the dugout and began milling around the Loys and John Hills.
Patricia stated that, after the attack had been going on for about three minutes, Harry Keeler, the third base coach for Lemont, came over, grabbed hold of George Loy, Sr., and pulled him away from John Hills. While Keeler was holding George Loy, Sr., there was a "lull" in the attack for approximately one minute.
Patricia stated that, during the "lull," she asked her husband if he was okay, but he was disoriented and did not respond. While still trying to get a response from her husband, Patricia noticed George Loy, Jr., sneak behind Keeler and pull Keeler's jacket up over his head, pinning Keeler's arms. George Loy, Sr., now free from Keeler's grasp, ran over to John Hills and punched him in the nose.
Patricia stated that she then saw the home plate umpire, Scott Van Wagner, trying to get the Bridgeview players under control and move them back into their dugout. Patricia estimated that six minutes passed between the time she first screamed for help and the time Van Wagner came down to the first base area. Patricia further stated that she had not heard any announcements over the public address system and did not see the first base umpire intervene in the attack in any way. After George Loy, Sr., punched John Hills five or six more times, someone other than the umpires, Patricia was not sure who, again pulled George Loy, Sr., away. There was then another "lull" in the attack of approximately a minute.
Patricia testified that, during the lull, she was screaming and watching her husband struggle to stay standing. She saw Ted Loy sneaking back into the dugout, avoiding the home plate umpire, and acting "as if he really hadn't done anything." She then saw George Loy, Jr., running toward her husband with a baseball bat. Patricia yelled, "Oh, my God, he's going to kill him now," and then screamed to her husband, "Watch out, he's got a bat." Patricia saw her husband get hit with the bat on the side of the knee and then fall to the ground. George Loy, Jr., then ran away. According to Patricia, John Hills was not beaten after he received the blow to his knee. *fn2 Patricia stated that, after her husband was on the ground, she started running to a concession stand, which was located behind right field, to phone for an ambulance. While she was going to get help, Patricia saw a man who said he lived "right behind the thing" and who said he would run to his house and make the call. As Patricia was returning to her husband, she heard the sirens of emergency vehicles coming to the field. Patricia stated that she was away from her husband for one or two minutes. She also stated that the police station was located within a few blocks of the playing field. No evidence was offered as to who actually phoned for the ambulance and police.
Other witnesses testified to the events surrounding the attack. Michael Putrow, plaintiffs' nephew, was 13 years old in July 1990. Putrow testified that, during the third inning, while he was sitting in the third base bleachers, he saw George Loy, Sr., come out of the dugout, yelling and waving his fist. During the sixth inning, George Loy, Sr., became more irate and came out of the dugout to within three feet of John Hills. Neither Ted Loy nor the umpires told George Loy, Sr., to stop yelling and swearing. At the end of the sixth inning, George Loy, Sr., attacked Hills from behind and began punching and kicking him. Ted Loy and George Loy, Jr., then joined in the attack. According to Putrow, the first base umpire saw the attack begin, turned, and then walked away. Also, according to Putrow, the home plate umpire did not come down to the first base area until after John Hills had been struck with the bat. Putrow stated that he saw his aunt, Patricia Hills, run to phone for an ambulance. According to Putrow, the ambulance and police arrived 20 to 25 minutes later. Putrow also stated that the entire attack, including the "lulls," lasted about 10 minutes.
Clare Masterson, Patricia Hills mother, offered testimony which generally corroborated plaintiffs' testimony. Rebecca DeVerdier, who was 15 years old at the time of the attack and who was sitting in the third base bleachers, also generally corroborated plaintiffs' testimony. DeVerdier stated that she believed the entire attack lasted from 10 to 15 minutes.
Harry Keeler, Lemont's third base coach, also testified at trial. Keeler stated that he did not hear any of the Loys say anything rude or threatening to John Hills prior to the attack. Keeler also stated that John Hills did not approach him during the game and tell him that George Loy, Sr., was shouting and swearing. Keeler was also unaware of anyone complaining to the umpires about George Sr.'s conduct before the attack.
Keeler testified that, when the sixth inning ended, he was walking back to the dugout on the third base side of the field when he heard one of the Lemont players say, "Look at Mr. Hills." Keeler turned around and saw George Loy, Sr., on top of John Hills, "swinging wildly." Keeler told Ray Chadorowski to "keep the kids in the dugout." Keeler then ran over to first base, tackled George Loy, Sr., grabbed him, and dragged him over to the fence that surrounded the field.
Keeler asked George Loy, Sr., what was going on and, after a few moments, asked if he had calmed down. Keeler felt Loy's body relax. Assuming that the attack was over, Keeler released Loy. Keeler stated that someone then hit him on the left side of the head. George Loy, Sr., then turned around, pulled Keeler's jacket over his head, and started punching him. Keeler stated that he somehow managed to get Loy away from him and that things then "calmed down for a second or two." Keeler then saw George Loy, Jr., hit John Hills with a baseball bat.
Keeler estimated that the entire attack on John Hills lasted between three and four minutes. He also estimated that the police arrived five to seven minutes after the attack began. Keeler stated that he did not see the umpires intervene in the attack but that he also "wasn't really paying attention to what they were doing."
Scott Van Wagner testified that he was 23 years old in the summer of 1990 and that he was the volunteer, home plate umpire for the July 30 game. Van Wagner stated that, prior to the attack, he did not notice any threats, yelling or other improper conduct by any of the coaches or players. Also, before the attack, no one complained to him about the conduct of George Loy, Sr.
Van Wager testified that, after the sixth inning ended, he turned around to speak to the announcer behind the home plate backstop. After a few minutes, either the announcer, or someone in the area of the announcer, said there was a fight going on. Van Wagner turned, saw what he believed to be a fight near first base, and ran down to that area. Contradicting Patricia Hills' testimony, Van Wagner stated that he grabbed George Loy, Sr., who was rolling on the ground with John Hills, picked him up, and carried him to the dugout. He also called out to other adults to phone for the police.
As soon as Van Wagner put George Loy, Sr., in the dugout, he turned around and saw George Loy, Jr., standing over John Hills with a baseball bat. Harry Keeler was also standing nearby. Van Wagner stated that he ran after George Loy, Jr., who said, "I'm done," and then threw the bat away. Van Wagner picked up George Loy, Jr., and carried him to the dugout. According to Van Wagner, the police arrived less than five minutes later.
Van Wagner stated that he did not see the first punches thrown at John Hills and did not see whether Ted Loy joined in the first part of the attack. Van Wagner also did not see Keeler grab George Loy, Sr. According to Van Wagner, if Keeler grabbed George Loy, Sr., he would have had to have done so before Van Wagner first turned around.
Larry Laduca corroborated Van Wagner's testimony about restraining George Loy, Jr., after John Hills was struck with the baseball bat. Laduca stated that he managed one of the baseball teams sponsored by the Justice Willow Springs Little League. At the time of the attack, Laduca was watching a Little League game that was taking place on the field adjacent to the Bridgeview and Lemont game. Laduca stated that, as he was watching the other game, he heard one of the "Willow Springs mothers" near the concession stand yelling that there was fight. Laduca ran over to the field on which the Bridgeview and Lemont game was being played and went through a gate in the outfield fence. As he reached the first base area, Laduca saw John Hills lying on the ground. He also saw Van Wagner running after George Loy, Jr., who was holding a baseball bat. Van Wagner told Laduca to "Get to the dugout and don't let anyone out." Laduca went to the dugout and saw members of the Bridgeview team crying and saying that "all they wanted to do was play baseball and we have to go and put up with this." According to Laduca, Van Wagner brought George Loy, Jr., into the Bridgeview dugout. All three Loys were then kept in the dugout until the police arrived.
Ed Jalovec, the first base umpire, testified via videotape evidence deposition. Jalovec stated that he could not recall if he had been paid to umpire the July 30 game or if he had volunteered. In contradiction to plaintiffs' witnesses, Jalovec stated that he did not see the beginning of the attack on John Hills, and that the attack was over quickly. Jalovec stated that he was facing the playing field as the inning of the attack was ending. After the last out was made, Jalovec turned toward the first base foul line. At that time, according to Jalovec, John Hills was already on the ground and the Bridgeview coaches and manager were in the Bridgeview dugout. Hills' wife and another coach from Lemont then came running over to Hills. Jalovec stated that he did not see anyone strike Hills with a bat and that he saw no further attacks on Hills after he turned toward first base.
Joseph Kalafut testified that he was the announcer and scorekeeper at the July 30 game and that he was a member of Justice's governing board. Kalafut explained that the Justice Willow Springs Little League is a nonprofit corporation with a volunteer board of 8 to 10 persons. Justice owned the playing field on which the game was held, as well as a concession stand and a second, smaller baseball field adjacent to the first.
Kalafut explained that Justice held a baseball tournament at the end of July to give some of the children additional playing experience since their regular baseball season ended in the beginning of July. The tournament also generated revenue for Justice, with money being made through the sale of concessions of food such as hot dogs and soda pop. The tournament was run by the Justice board members and parent volunteers. The $125 entrance fee charged to the teams was used to pay for trophies that each team received, for food that the players and umpires were given after the games, and possibly for the services of the umpires. Any profit left over from the entrance fee was "nominal." During a tournament, Justice would have both paid and volunteer umpires. In 1990, paid umpires received $5 to $10 a game. No admission fee was charged to people who came to watch the games.
Kalafut stated that, at the July 30 game, he was seated on the elevated announcer's platform behind the fence in back of home plate. At some point during the game, between innings, Kalafut was talking to the home plate umpire when he noticed two men near first base "engaged in a struggle of some sort." Kalafut told the umpire that he thought there was "a problem going on down there." Kalafut left the booth and immediately went down to the first base area. According to Kalafut, when he got to the first base area, John Hills was on the ground and the attack was over. Kalafut stated that he did not make any announcement to stop the fighting when he first became aware of it because he did not believe it was a "positive thing" to announce that there was a fight in front of the children and adult spectators.
Bridgeview board members Ronald Mizwicki and Gregory Klein testified regarding the Bridgeview organization and its relation to the Loys. Mizwicki stated that Bridgeview was an unincorporated, nonprofit association whose goals were to teach its players good sportsmanship and how to play Little League baseball. The Bridgeview governing board consisted of a president, a vice-president, a secretary, a treasurer and an equipment manager. The board and team managers were volunteers. In 1990, Mizwicki was the acting president of Bridgeview. Mizwicki stated that he appointed Ted Loy to be the manager of the team that attended the July 30 game after Loy volunteered to take the position. Mizwicki also stated that, prior to appointing Ted Loy manager, he had never heard anything negative about him. Loy had managed for Bridgeview in the past without incident and, as far as Mizwicki knew, he had a good reputation in the community. Volunteer managers were difficult to find and, when Ted Loy volunteered to manage the 1990 team, Mizwicki accepted.
Mizwicki acknowledged that Ted Loy represented Bridgeview at the July 30 game, as none of the board members were in attendance. However, Ted Loy, and other team managers, did not run Bridgeview or set its policies. Mizwicki stated that Ted Loy selected George Loy, Sr., and George Loy, Jr., as his assistant coaches and that he had the authority to do so under Bridgeview's rules. Mizwicki further stated that Bridgeview managers were expected to conduct themselves properly at all games and that they were expected to supervise and control the conduct of their players and coaches during games.
Gregory Klein generally corroborated Mizwicki's testimony. Klein stated that, when the Bridgeview board learned of Ted Loy's attack on John Hills, the board barred him from the Little League. Because George Loy, Sr., and George Loy, Jr., were not members ...