Karas v. Strevell ( 2006 )

No. 2--05--1218 filed: 12/29/06
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
ROBERT KARAS, as Father and Next Friend ) Appeal from the Circuit Court
of Benjamin S. Karas, a Minor, ) of Du Page County.
)
Plaintiff-Appellant, )
)
v. ) No. 04--L--164
)
JOSEPH STREVELL, RUSSELL )
ZIMMERMAN, NAPERVILLE CENTRAL )
REDHAWK HOCKEY ASSOCIATION, )
AMATEUR HOCKEY ASSOCIATION OF )
ILLINOIS, INC., and ILLINOIS HOCKEY )
OFFICIALS ASSOCIATION, INC., ) Honorable
) John T. Elsner,
Defendants-Appellees. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE O'MALLEY delivered the opinion of the court:
Plaintiff, Robert Karas (on behalf of his minor son, Benjamin Karas), appeals the trial court's
dismissal, pursuant to section 2--615 of the Code of Civil Procedure (Code) (735 ILCS 5/2--615
(West 2004)), of his complaint, seeking recovery for an injury to his son, against defendants, Joseph
Strevell, Russell Zimmerman, Naperville Central Redhawk Hockey Association (NCRHA), Amateur
Hockey Association of Illinois, Inc. (AHAI), and Illinois Hockey Officials Association, Inc. (IHOA).
Plaintiff filed his second amended complaint against defendants on September 14, 2004, and
we draw the facts of the case from the allegations stated therein. On January 25, 2004, Benjamin
played in an organized hockey contest against NCRHA's junior varsity hockey team, which included
No. 2--05--1218
defendants Strevell and Zimmerman. NCRHA was a member of AHAI, which promulgated and
disseminated hockey contest rules, including a prohibition against checking from behind. At all times
relevant to the complaint, the backs of all game jerseys for players on both teams had sewn above or
between the players' numbers "the warning 'STOP' to reinforce the prohibition" against checking from
behind. During the January 25 contest, Strevell and Zimmerman checked Benjamin from behind while
he was near the boards that formed the wall of the playing rink and while he was partially bent over
and looking down with his head pointing toward the boards. The collision caused Benjamin's head
to strike the boards and resulted in his serious injury.
During the relevant time period, NCRHA was responsible for coaching and teaching its
players to abide by all hockey contest rules. On and before January 25, NCRHA failed to instruct its
players to refrain from checking from behind and failed to discipline or sanction players who were
known to check from behind. AHAI failed to instruct its member teams to prevent its players from
checking opposing players from behind, failed to instruct officials to strictly enforce the prohibition
against checking from behind, and failed to discipline or sanction players and teams known to engage
in checking from behind. AHAI also failed to discipline, sanction, or control IHOA's "known and
repeated" failures to enforce strictly the prohibition against checking from behind. Likewise, IHOA
failed to instruct its member officials to strictly enforce the prohibition against checking from behind
and failed to discipline or sanction officials for their known failure to strictly enforce the prohibition
against checking from behind.
The first count of plaintiff's second amended complaint sought damages against Strevell and
Zimmerman for willful and wanton conduct causing Benjamin's injury. Counts II, IV, and VI sought
damages against NCRHA, AHAI, and IHOA for their negligence in connection with Benjamin's
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injury. Counts III, V, and VII sought damages against NCRHA, AHAI, and IHOA for their willful
and wanton conduct leading to Benjamin's injury. Count VIII of the second amended complaint
alleged a civil conspiracy between AHAI and IHOA that led to Benjamin's injury.
Defendants filed motions to dismiss pursuant to section 2--615 of the Code, and the trial court
dismissed the first count on March 14, 2005, and dismissed counts II through VII on July 1, 2005.
The trial court granted plaintiff leave to replead count VIII to allege civil conspiracy with more
specificity, and plaintiff thereafter filed a third amended complaint, which amended the final count and
listed each of the dismissed counts with a statement that each had been dismissed. The third amended
complaint charged civil conspiracy as follows, in pertinent part:
"12. Prior to January 25, 2004, [AHAI] had made changes to its 'checking from
behind rule' as a result of severe injuries sustained by *** players ***. Materially, the rule
was changed such that the penalty for an infraction of the rule was increased to an ejection
of the violating player and a 3 game suspension.
13. Prior to January 25, 200[4], but after the aforementioned change of the rule,
[IHOA] willfully failed to call the checking from behind penalty during AHAI sanctioned
hockey contests on more than one occasion because [IHOA] *** believed *** that the
resultant penalty as set forth in the modified rule was too harsh.
14. Thereafter, but prior to January 25, 2004, because [IHOA] willfully refused to
call players for violating the checking from behind rule on more than one occasion, [AHAI]
agreed to reduce the penalty *** ostensibly in order to promote [IHOA] to call all violations
of the rule.
***
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16. On and before January 25, 2004, [AHAI and IHOA] *** agreed to not enforce
the aforesaid checking from behind rule during games that occurred under the authority of the
rule of [AHAI]."
On November 7, 2005, the trial court dismissed the final count of plaintiff's complaint.
Plaintiff timely appeals.
A section 2--615 motion to dismiss attacks the legal sufficiency of the complaint. Willmschen
v. Trinity Lakes Improvement Ass'n, 362 Ill. App. 3d 546, 549 (2005). Illinois is a fact-pleading
jurisdiction that requires a plaintiff to present a legally and factually sufficient complaint, and the
plaintiff must allege sufficient facts to state all of the elements of the asserted cause of action. Purmal
v. Robert N. Wadington & Associates, 354 Ill. App. 3d 715, 720 (2004). Thus, "[t]he question to
be decided when ruling on a section 2--615 motion to dismiss is whether the plaintiff has alleged
sufficient facts which, if proved, would entitle the plaintiff to relief." Doe v. Chicago Board of
Education, 339 Ill. App. 3d 848, 853 (2003). "In reviewing the sufficiency of the complaint, the court
must accept as true all well-pleaded facts in the complaint and all reasonable inferences that can be
drawn from those facts." Willmschen, 362 Ill. App. 3d at 549. "However, conclusions of law and
conclusory factual allegations not supported by allegations of specific facts are not deemed admitted."
Purmal, 354 Ill. App. 3d at 720. The sufficiency of a complaint presents a question of law, which
receives de novo review. Doe, 339 Ill. App. 3d at 853. Because all of plaintiff's arguments challenge
only the trial court's conclusions that each of the counts of his complaint was legally insufficient, our
review of all issues in this case is de novo.
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Plaintiff first argues that the trial court erred in dismissing the first count of his complaint,
because he alleged sufficient facts to state a cause of action against Strevell and Zimmerman. We
agree.
There is no separate tort of willful and wanton conduct. Ziarko v. Soo Line R.R. Co., 161
Ill. 2d 267, 274 (1994). Normally, 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.
Pfister v. Shusta, 167 Ill. 2d 417, 420 (1995). A claim sounding in negligence thus arises where a
plaintiff alleges "the existence of a duty owed by the defendant to the plaintiff, a breach of that duty,
and an injury proximately caused by the breach." Ward v. K mart Corp., 136 Ill. 2d 132, 140 (1990).
However, under a judicially created exception to the standard of ordinary care, voluntary participants
in contact sports are not liable for injuries caused by simple negligent conduct. Pfister, 167 Ill. 2d at
420 (reaffirming holdings of previous appellate court cases creating and applying the rule). Instead,
they owe each other a duty to refrain only from willful and wanton or intentional misconduct, and
they are liable for injuries resulting from a breach of that limited duty. Pfister, 167 Ill. 2d at 420-21.1
1
The supreme court rejected another suggested approach that would focus on the scope of
physical contact allowed by the rules and usages in the game, instead adopting the contact sports
exception, which requires willful and wanton conduct in order to sustain liability. The supreme court
reasoned that, even in games where there are rules to govern the permissible degree of physical
contact among participants, "it is difficult to determine what may be an acceptable amount of physical
contact," and " 'rule infractions, deliberate or intentional, are virtually inevitable.' " Pfister, 167 Ill.
2d at 424, quoting Oswald v. Township High School District No. 214, 84 Ill. App. 3d 723, 727
(1980). Thus, the contact sports exception "offer[ed] a practical approach" to the problem. Pfister,
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The label of willful and wanton conduct has developed in Illinois to describe a hybrid between
acts considered negligent and behavior found to be intentionally tortious. Ziarko, 161 Ill. 2d at 275.
Willful and wanton conduct includes acts performed intentionally, but, unlike intentionally tortious
behavior, willful and wanton conduct may also be proven where the acts have been less than
intentional. Ziarko, 161 Ill. 2d at 274. At the other end of the continuum between intentional and
negligent conduct, it has been acknowledged that willful and wanton conduct shares some
characteristics with negligent conduct and that there is a "thin line" between simple negligence and
willful and wanton acts. Ziarko, 161 Ill. 2d at 275, citing Burke v. 12 Rothschild's Liquor Mart, Inc.,
148 Ill. 2d 429, 451 (1992), and Mattyasovszky v. West Towns Bus Co., 61 Ill. 2d 31, 35 (1975).
Thus, willful and wanton conduct " 'is generally considered in that area of fault between ordinary
negligence and actual malice.' " Ziarko, 161 Ill. 2d at 275, quoting Myers v. Krajefska, 8 Ill. 2d 322,
329 (1956). In view of the fact that willful and wanton conduct is a matter of degree, "a hard and
thin line definition [of the term] should not be attempted." Myers, 8 Ill. 2d at 329.
Willful and wanton conduct may be found where an act was done with intent or "with a
conscious disregard or indifference for the consequences when the known safety of other persons was
involved." Myers, 8 Ill. 2d at 329. Put another way, as it is now commonly stated, to plead a cause
of action that requires an allegation of willful and wanton conduct, a plaintiff must allege that the
defendant held either an "intention to harm" or "an utter indifference to or conscious disregard for
[his] welfare" (e.g., Doe v. Chicago Board of Education, 213 Ill. 2d 19, 28 (2004); Adkins v. Sarah
Bush Lincoln Health Center, 129 Ill. 2d 497, 518 (1989)) and that he suffered an injury as a result
of that willful and wanton conduct.
167 Ill. 2d at 425.
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Whether willful and wanton conduct has been committed in any given case requires close
scrutiny of the facts as disclosed by the evidence. O'Brien v. Township High School District 214, 83
Ill. 2d 462, 469 (1980), citing Lynch v. Board of Education, 82 Ill. 2d 415, 430 (1980), quoting
Myers, 8 Ill. 2d at 329. However, in ruling on a section 2--615 motion, a court must first decide as
a matter of law whether a plaintiff has alleged sufficient facts such that a jury question is created
concerning the willful and wanton nature of the defendant's conduct. Doe v. Calumet City, 161 Ill.
2d 374, 390 (1994), overruled on other grounds, In re Chicago Flood Litigation, 176 Ill. 2d 179
(1997). That said, our supreme court has noted that, given the "necessity to closely scrutinize the
facts of each case, [a] plaintiff should be allowed to present evidence in support of his allegations of
willful and wanton misconduct." O'Brien, 83 Ill. 2d at 469. Thus, though a complaint alleging willful
and wanton conduct should be dismissed where it does not state sufficient facts to meet the standard,
given the factual and amorphous nature of the definition of the term, courts should dismiss such
complaints sparingly in order to effect the policy of determining the presence of willfulness and
wantonness based on the evidence and not the pleadings.
Before addressing whether plaintiff's allegations met the above standard, we must first clarify
precisely what plaintiff alleged. All the defendants at various points in their briefs and at oral
argument oversimplify plaintiff's allegations by characterizing the alleged actions as merely
"checking," "checking from behind," or simple rule violations. For example, Zimmerman states that
"plaintiff alleges that [Benjamin] was injured when he was checked from behind during a hockey
game." He points out that actions "within the participants' ordinary expectations, such as 'checking
in hockey,' cannot sustain a cause of action" and that "routine rule violations are common occurrences
during game play." Strevell states, "the trial court found that checking from behind was a recognized
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risk by ice hockey participants" and that "[p]laintiff argued to the trial court that committing a
recognized penalty in a hockey game met the standard for willful and wanton conduct." Likewise,
the remaining defendants argue that it should not "be the public policy of this State to allow contact
sports participants to file individual lawsuits against their opponents simply on a theory that they
suffered injury as a result of a violation of the rules of the sport." However, plaintiff has alleged
more. Plaintiff alleged not only that Strevell and Zimmerman checked Benjamin from behind in
violation of the rules, but also that they did so while he was bent over next to the boards, with his
head pointing toward the boards, and that they did so despite the fact that a "STOP" warning was
displayed on the back of every player's jersey.
Strevell and Zimmerman rely on their mischaracterizations of plaintiff's allegations for one of
their primary arguments in favor of affirmance: allowing plaintiff's complaint to move forward would
expose sports participants to liability in any instance in which their negligent violation of the rules (by
committing a foul or a penalty) causes injury. This argument, which the player defendants recite
repeatedly throughout their briefs, is a distraction from the real issue. Plaintiff does not allege a mere
rules violation, and, indeed, plaintiff agrees that imposing liability for negligent rules violations in
sporting contests would be absurd. Instead, plaintiff alleges that Strevell's and Zimmerman's actions
were not only violations of the rules, but, given Benjamin's vulnerable position and the "STOP"
warnings on players' jerseys, that they went beyond conduct ordinarily accepted during the course
of competition and into willful and wanton conduct. When the player defendants argue that plaintiff's
position would result in liability for negligence during the course of play, they presuppose that
plaintiff has not alleged willful and wanton conduct. Thus, the player defendants' argument overlooks
the essential question here. For that reason, we reject as hyperbolic slippery-slope rhetoric the player
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defendants' protestations that allowing plaintiff's complaint to go forward will allow "every hockey
participant who [is] injured during a game when a penalty [is] committed [to] sue another player for
injuries," and we move to consider whether plaintiff has alleged willful and wanton conduct.
We conclude that the factual allegations above meet the requirements for pleading a cause of
action based on willful and wanton conduct. Plaintiff alleged not only that Strevell and Zimmerman
broke the rules of hockey, but that they broke a rule of such special emphasis that players' jerseys
were altered to reinforce it. Plaintiff also alleged circumstances surrounding Strevell's and
Zimmerman's actions--they allegedly checked Benjamin when he was defenseless and in a position
of acute vulnerability--that evince a conscious disregard for his safety. These allegations taken as true
create an inference that Strevell's and Zimmerman's actions exceeded those acceptable during the
excitement of play and were so reckless that they were likely to cause, and indeed did cause, injury
to another. Therefore, we conclude that the first count of plaintiff's complaint should be reinstated
so that he has an opportunity to prove the truth of the allegations.
That said, the complaint notably does not say where the hockey puck was at the time the
player defendants struck Benjamin. The location of the puck and, perhaps relatedly, what Benjamin
and the player defendants were attempting to do at the moment of impact are all matters yet to be
fleshed out by evidence, and those matters might well be relevant to Strevell's and Zimmerman's states
of mind at the time they struck Benjamin. It is quite possible that, once all the circumstances
surrounding this incident are revealed, the inference of willful and wanton conduct will disappear.
However, on the bare facts pled here, we can, and therefore must, infer willful and wanton conduct.
In reaching our conclusion, we reject several arguments from the player defendants.
Zimmerman argues that Illinois law recognizes a margin of error for conduct occurring during the
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excitement of play, and that, given the physical nature of hockey in particular (see McKichan v. St.
Louis Hockey Club, L.P., 967 S.W.2d 209, 212-13 (Mo. App. 1998)), Zimmerman's and Strevell's
conduct should be considered leniently. Zimmerman contends that, though the player defendants'
conduct might be considered tortious in most other contexts, "such conduct is widely accepted, and,
in fact, encouraged" in the sport of hockey. We note that plaintiff's allegation that the player
defendants' conduct violated the rules belies Zimmerman's assertion that such conduct is openly
"encouraged." However, wording aside, the gravamen of Zimmerman's argument is that, in the
excitement of play, "[i]n order to gain possession of the puck or slow down the progress of
opponents, hockey players routinely hit each other with body checks or slash at each other with their
sticks."
We agree with Zimmerman that Illinois law recognizes an increased margin of error for
conduct undertaken in the excitement of play in a contact sport. For example, in Pfister, four college
students improvised opposing goals against the walls of a dormitory lobby and began a spontaneous
game of kicking an aluminum soda can toward the opposing team's goal. Pfister, 167 Ill. 2d at 419.
During the game, the plaintiff allegedly pushed the defendant toward a wall in an attempt to gain
control of the can, and the defendant allegedly responded by pushing the plaintiff and causing him to
fall. Pfister, 167 Ill. 2d at 419. While attempting to break his fall, the plaintiff put his left hand and
forearm through the glass door of a wall fire extinguisher case and sustained injuries to his hand and
forearm. Pfister, 167 Ill. 2d at 419. The trial court granted the defendant's motion for summary
judgment on the grounds that the activity at issue fell within the contact sports exception to the
ordinary duty of care and that the plaintiff had not alleged willful and wanton conduct. Pfister, 167
Ill. 2d at 420. The supreme court affirmed the trial court, because the plaintiff did not allege, and the
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facts did not establish, either willful and wanton or intentional misconduct by the defendant. Pfister,
167 Ill. 2d at 420.
We also agree with Zimmerman that conduct may violate the rules of competition but
nevertheless be generally accepted by the relevant community, and we agree that, if the conduct is
generally accepted, it should not form the basis for liability. Indeed, if the conduct were generally
accepted, it would fall within the scope of the contact sports exception (i.e., it would amount to
acceptable negligence or would breach no duty at all), which, as discussed more fully below, is
partially based on the idea that participants consent to the risks associated with the competition they
enter. See Pfister, 167 Ill. 2d at 425 ("Participants in team sports *** assume greater risks of injury
than nonparticipants"); Savino v. Robertson, 273 Ill. App. 3d 811, 817 (1995) ("plaintiff knowingly
and voluntarily assume[d] the risks inherent [in playing the game of hockey]").
However, the inference from the factual allegations of the complaint is that the conduct in this
case does not enjoy such wide acceptance. Plaintiff alleged that the relevant organizing bodies went
so far as to display warnings on the players' uniforms in order to forestall checking from behind, and
plaintiff alleged that Strevell and Zimmerman committed their illegal checks under circumstances that
they should have understood to create a substantial risk of harm to the opponent. Thus, while we
agree with Zimmerman that the player defendants should receive extra lenience given the physical
nature of the game of hockey, we conclude that plaintiff has adequately pled Strevell's and
Zimmerman's conduct as being willful and wanton even in the context of a hockey game.
As a side note, we observe that plaintiff objects to Zimmerman's references to the severity of
the risk participants assume when they play hockey (i.e., the victim's state of mind), because he
asserts the proper focus to be on the willfulness and wantonness of the defendant's conduct (i.e., the
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defendant's state of mind). However, willfulness and wantonness must derive their meaning from the
context of the game played. Conduct, such as checking another player, that would almost certainly
be willful and wanton if undertaken during a softball game becomes acceptable if undertaken during
a hockey game, and thus creates no inference of an antecedent appreciation of an unusual risk of
injury for the opponent. Likewise, conduct, such as punching another participant, that would likely
be willful and wanton during the course of play in football would be expected in a boxing match. The
severity of the risk associated with playing a sport not only helps determine the scope of the contact
sports exception (i.e., negligent or acceptable conduct a plaintiff could not use as a basis for liability),
but also gives context to a defendant's actions and thus his or her state of mind in committing
allegedly injurious acts. Put another way, the rougher the game, the larger the contact sports
exception for negligence (and the higher the proverbial bar for conduct to exceed acceptable behavior
and become willful and wanton2), and the weaker the inference that a particular instance of rough play
was a result of a willful and wanton state of mind. Thus, though plaintiff is correct that the focus
is on whether Strevell's and Zimmerman's acts were willful and wanton, the risks associated with
hockey are relevant to that inquiry for their bearing on Strevell's and Zimmerman's states of mind.
In another argument, Strevell asserts that "players possess actual or constructive notice of the
substantial risk of injury from checking from behind, since [hockey has] rules against checking from
2
The corollary proposition to the commonly stated result of application of the contact sports
exception, that a player may not sue based on another player's negligence, is that players agree to hold
other players to a lower duty of care. See Pfister, 167 Ill. 2d at 421 (contact sports exception creates
a "limited duty"). Thus, the duty of care owed varies inversely to the magnitude of the risks inherent
in play. Football players owe one another a generally lower duty of care than do softball players.
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behind." First, as noted above, we reject defendants' characterization of plaintiff's complaint as
alleging only that Benjamin was checked from behind. Second, as noted above, plaintiff alleges
conduct here that fell outside the scope of any notice of risk Benjamin would have appreciated. A
competitor likely should not expect to be struck from behind while bent over with his head in a
precarious position under the circumstances alleged in plaintiff's complaint. Third, we reject Strevell's
position as absurd. Strevell essentially argues that, so long as there is a rule against specified conduct,
participants have notice that the conduct might occur, and, therefore, such conduct cannot form the
basis of liability. Strevell proposes, then, that a player be immunized from tort liability so long as he
breaks the rules of the competition in which he engages. The proper inquiry looks not at whether the
alleged act violated the rules of the sport, but whether it was willful and wanton, regardless of
whether the rules prohibited it.
Strevell argues that three "factually on point" cases dictate dismissal of plaintiff's claim.
However, each of the three cases is readily distinguishable, because each case involves injuries
sustained as a result of conduct normally undertaken in the game at issue and not as a result of
allegedly willful and wanton conduct. In Azzano v. Catholic Bishop, 304 Ill. App. 3d 713 (1999),
the appellate court affirmed the trial court's granting of summary judgment in favor of a defendant
who injured the plaintiff by knocking him to the ground during a game of "killerball," a team contest
resembling a kind of tackle keep-away. In Savino, the appellate court rejected a plaintiff's proposed
distinction between pre-game and in-game activities and held that the plaintiff was required to and
failed to allege willful and wanton conduct where the defendant accidentally hit the plaintiff in the eye
with a puck while firing a warmup shot at a nearby goal. Savino, 273 Ill. App. 3d at 813-17.
Likewise, in Keller v. Mols, 156 Ill. App. 3d 235 (1987), the appellate court affirmed the trial court's
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summary judgment finding that there was no proof of willful and wanton conduct where the
defendant accidentally hit the plaintiff in the eye when he shot a plastic puck during a game of street
hockey. Here, by contrast, plaintiff alleges not that Benjamin was injured as a result of normal game
play, but rather by the player defendants' extraordinary acts of checking him from behind while he was
partially bent over with his head pointed toward the nearby boards.
Strevell also relies on Ward v. Community School District No. 220, 243 Ill. App. 3d 968
(1993), in urging a contrary result. In Ward, the plaintiff was sitting on the sideline watching a flag
football game during a physical education class. The field he was sitting by was situated end-to-end
with another school's football field. Ward, 243 Ill. App. 3d at 970. As he watched the game, a
participant in a game in the adjacent field ran into and severely injured the plaintiff as the participant
was attempting to catch a pass. Ward, 243 Ill. App. 3d at 970. The plaintiff sued the schools and
the school district for willful and wanton conduct in placing the two fields so closely together,
without warning or protecting students from the potential dangers that could result from the field
placement. Ward, 243 Ill. App. 3d at 970-71. The appellate court held that, though the defendants
exposed children to a risk that could be found unreasonable, the alleged conduct was not of the
degree necessary to state a cause of action for willful and wanton conduct. Ward, 243 Ill. App. 3d
at 976.
Ward, like the other cases upon which Strevell relies, is readily distinguishable from the
current case. Here, plaintiff alleges that Strevell and Zimmerman approached him under
circumstances that create an inference that they fully appreciated the risk and possibility of injury to
Benjamin and proceeded to check him from behind while his head was in a vulnerable position. This
is not a case of an entity disregarding an abstract possibility of risk but, rather, of two defendants
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allegedly disregarding an immediate and readily ascertainable risk. The facts here give rise to a much
stronger inference of willfulness and wantonness than do the facts in Ward.
Taking plaintiff's allegations as true and drawing all reasonable inferences therefrom in favor
of plaintiff, we conclude that plaintiff has alleged sufficient facts to support a claim that Strevell's and
Zimmerman's willful and wanton conduct caused Benjamin's injury, and we therefore hold that the
trial court erred in dismissing the first count of plaintiff's second amended complaint.
Plaintiff second argues that the trial court erred in dismissing counts II, IV, and VI of his
second amended complaint, which alleged negligence against NCRHA, AHAI, and IHOA, on the
basis that those organizations did not owe plaintiff a normal duty of reasonable care. The trial court
reached this ruling by relying on the organizational defendants' argument that the contact sports
exception to the general duty rule should apply not only to protect sports participants, but also sports
organizers. Plaintiff again asserts on appeal that the organizational defendants owed him a general
duty of care, and the organizational defendants again rebut this assertion by arguing that the contact
sports exception precludes such a duty. We must therefore examine the rationales underlying the
contact sports exception to determine if it should be extended beyond its currently understood scope.
While we agree with the organizational defendants that the exception extends to organizers, we agree
with plaintiff that the counts of negligence against the organizational defendants should not have been
dismissed on that basis in this case.
The contact sports exception was first announced in Illinois in Nabozny v. Barnhill, 31 Ill.
App. 3d 212 (1975), wherein the court formulated the policy based on the following considerations:
"This court believes that the law should not place unreasonable burdens on the free
and vigorous participation in sports by our youth. However, we also believe that organized,
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athletic competition does not exist in a vacuum. Rather, some of the restraints of civilization
must accompany every athlete [onto] the playing field. ***
***
For these reasons, this court believes that when athletes are engaged in an athletic
competition *** a player is *** charged with a legal duty to every other player on the field
to refrain from conduct proscribed by a safety rule. A reckless disregard for the safety of
other players cannot be excused." Nabozny, 31 Ill. App. 3d at 215.
Since Nabozny, Illinois courts have revisited the contact sports exception several times,
expanding it to include unorganized, informal, and spontaneous sports activities and games. Azzano,
304 Ill. App. 3d at 716-17, citing Pfister, 167 Ill. 2d 417, Landrum v. Gonzalez, 257 Ill. App. 3d 942
(1994), and Keller, 156 Ill. App. 3d 235. The controlling question in determining whether a
participant may maintain a negligence action against his or her opponent for causing an injury is
whether the participants were engaged in a contact sport. Azzano, 304 Ill. App. 3d at 717. If the
participants were engaged in a contact sport, they are liable to each other only for injuries that
occurred as a result of willful or wanton conduct. Pfister, 167 Ill. 2d at 420; see also Zurla v. Hydel,
289 Ill. App. 3d 215, 221 (1997), quoting Thompson v. McNeill, 53 Ohio St. 3d 102, 106, 559
N.E.2d 705, 709 (1990) (rejecting the Illinois formulation of a contact sports exception because
" '[t]he *** distinction does not sufficiently take into account that we are dealing with a spectrum of
duties and risks rather than an either-or distinction' ").
Tangentially, we dispute the notion from Thompson that the Illinois contact sports exception
is not sufficiently flexible to the circumstances presented. As implied above, the Illinois contact sports
exception does allow a court to take into account "a spectrum of duties and risks": though the contact
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sports exception either bars actions for negligence or does not, the scope of protected acceptable or
negligent conduct (as opposed to willful and wanton conduct) depends on the risks associated with
the sport played, and, as discussed below, it applies to risks inherent in play of the relevant game.
Hockey players engage in a rougher sport, and thus owe one another generally lesser duties of care,
than do baseball players. Just as duty varies with the situation presented, so too does the scope of
the contact sports exception.
Though no court has expressly said so, the legal basis for the contact sports exception in
Illinois appears to derive in significant part from the principles supporting the implied assumption of
the risk doctrine. Assumption of risk exists to bar liability for negligent acts where a plaintiff assumes
known risks inherent in a particular activity or situation. Sullivan-Coughlin v. Palos Country Club,
Inc., 349 Ill. App. 3d 553, 560 (2004). In non-strict-liability negligence actions in Illinois, implied
assumption of the risk as a defense is confined to situations where the defendant and the plaintiff have
a contractual or employee-employer relationship. Court v. Grzelinkski, 72 Ill. 2d 141 (1978). This
policy is apparently based on the idea that the "intrinsic merits" of the doctrine do not warrant its
wide application, because it is duplicative of and often confused with contributory negligence or lack
of duty. See Barrett v. Fritz, 42 Ill. 2d 529, 534-37 (1969) (affirming limitations on applying the
doctrine based on criticism of the doctrine). We do not propose to overrule the long-standing
limitation on assumption of the risk under Illinois law; indeed, we are without authority to do so (see
Wreglesworth v. Artco, Inc., 316 Ill. App. 3d 1023, 1030 (2000) ("We are bound by the principle of
stare decisis and must adhere to the decisions of our supreme court")). Rather, we examine the
doctrine as it elucidates the logical bases of the contact sports exception so that we may determine
if the bases for the exception justify its extension to the organizational defendants in this case, or, put
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another way, whether the policy arguments in favor of the contact sports exception justify a holding
that sports coaches and organizers owe no duty to protect players from negligence (or other dangers)
inherent in the relevant sport.3
Several courts applying or extending the contact sports exception have done so based on the
idea that the plaintiff assumed certain risks associated with the activity that led to his or her injury.
For example, in Azzano, the appellate court determined that "killerball" was a contact sport; it noted
that "a certain amount of physical contact was inevitable in the game of killerball and *** the parties
voluntarily assented to the contact by participating." Azzano, 304 Ill. App. 3d at 717. The court also
discussed the policy underpinnings of the contact sports exception as follows:
"It is unlikely that the supreme court [in Pfister] was concerned with promoting free and
vigorous participation in sports or in the development of discipline and self control[, the two
policy rationales cited by the court in Nabozny,] when it applied the contact sports exception
to a spontaneous game of kick the can in a college dormitory lobby. Rather, the supreme
court made it clear that the public policy underlying the contact sports exception today is the
need to strike a balance between protecting participants in sporting activities and the
voluntary nature of participation in games where physical contact is inherent and inevitable.
This balance is achieved by limiting liability where the participant chooses to participate in an
activity in which physical contact and the risk of injury are inherent. Pfister makes it clear that
3
Those below-cited Illinois contact sports cases that do discuss assumption of the risk
apparently assume the existence of or overlook the requirement for a contractual or employment
relationship, or rely on the assumption doctrine, just as we do, to describe the rationale of the contact
sports exception.
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the application of the contact sports exception turns solely on the choices made and the risks
voluntarily assumed by the participants." Azzano, 304 Ill. App. 3d at 718.
Indeed, in Pfister, the supreme court affirmed the contact sports exception by noting that
"[p]articipants in team sports, where physical contact among participants is inherent and virtually
inevitable, assume greater risks of injury than nonparticipants or participants in noncontact sports."
Pfister, 167 Ill. 2d at 425.
In Savino, the appellate court rejected a distinction between pre-game and in-game activities
in applying the contact sports exception. Savino, 273 Ill. App. 3d 811. The court first discussed a
New York case applying assumption of the risk and consent principles to determine liability for an
injury incurred during warm-up activities. Savino, 273 Ill. App. 3d at 816, discussing O'Neill v.
Daniels, 523 N.Y.S.2d 264, 135 A.D.2d 1076 (N.Y. App. Div. 1987). The court then offered a brief
discussion of the effect of the assumption of the risk doctrine under Illinois law (Savino, 273 Ill. App.
3d at 816-17) before holding that the plaintiff "was no less a participant in a team sport merely
because he was engaged in warm-up activities at the time of his injury."
Likewise, in Novak v. Virene, 224 Ill. App. 3d 317, 321 (1991), the appellate court noted that
"[m]any activities in life are fraught with danger, and absent a specific assumption of the risk, one may
obtain damages when injured by another's negligence." However, the court held that downhill skiing
was not a contact sport because, by skiing, "one does not voluntarily submit to bodily contact with
other skiers, and such contact is not inevitable." Novak, 224 Ill. App. 3d at 321.
In another case, Sullivan-Coughlin, the appellate court discussed the implied assumption of
the risk doctrine in connection with a plaintiff golfer's action for negligence where she was struck by
the defendant's errant golf ball. Sullivan-Coughlin, 349 Ill. App. 3d at 560. Though it did not discuss
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the applicability of the contact sports exception, the court held that implied assumption of the risk
was inapplicable there because " 'golf is simply not the type of game in which participants are
inherently, inevitably or customarily struck by the ball.' " Sullivan-Coughlin, 349 Ill. App. 3d at 560,
quoting Zurla, 289 Ill. App. 3d at 221. Zurla, the case upon which Sullivan-Coughlin relied,
examined the contact sports exception before holding that "golf is not properly characterized as a
'contact sport' for purposes of the Nabozny rule." Zurla, 289 Ill. App. 3d at 222. These two cases
in combination, along with the other cases considering the contact sports exception, further support
the idea that courts turn to assumption of the risk principles in defining the reach of the contact sports
exception.
We do note at least one case involving the contact sports exception, Landrum v. Gonzalez,
that at first glance appears to militate against our conclusion that the exception is based on
assumption of the risk principles. Normally, in order to be a complete bar to negligence liability,
assumption of the risk requires the plaintiff's subjective appreciation of the risk he or she is said to
assume. Duffy v. Midlothian Country Club, 135 Ill. App. 3d 429, 433-36 (1985) (without
considering contact sports exception, applying assumption of the risk as a bar to recovery in
negligence for a golf spectator who assumed known risks inherent in a particular activity when he was
hit with an errant golf ball); W. Prosser, Torts §68, at 447 (4th ed. 1971), quoting Cincinnati, N.O.
& T.P. Ry. Co. v. Thompson, 236 F. 1, 9 (6th Cir. 1916) (" 'Knowledge of the risk is the watchword
of assumption of [the] risk' "). However, in Landrum, the court held that the question of whether the
contact sports exception applies is to be based on the objectively determined risk associated with the
game played, as opposed to the injured plaintiff's subjective knowledge of the risks of the game.
Landrum, 257 Ill. App. 3d at 947-48, citing Keller, 156 Ill. App. 3d at 237. Though we note the
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inconsistency between Landrum and the seemingly prevalent rationale for the contact sports
exception, we have no doubt that the approach in Landrum is a correct statement of Illinois law,
which, as noted, states that a participant is barred from suing a co-participant not because of
assumption of the risk but instead because no duty of reasonable care exists in contact sports
situations.4
However, despite appearances, in some situations Landrum's statement may be reconcilable
with the concepts behind assumption of the risk principles. Landrum apparently includes within the
contact sports exception both risks the plaintiff subjectively appreciated and risks the plaintiff should
have appreciated (i.e., risks that objectively existed). If the player's subjective expectations are
unreasonable, and thus if the player should have appreciated the risks of the sport, then the doctrine
of assumption of the risk would not apply, but comparative negligence would. See Alvis v. Ribar,
85 Ill. 2d 1 (1981) (adopting comparative negligence scheme in Illinois to replace former contributory
negligence scheme), abrogated by Ill. Rev. Stat. 1991, ch. 110, par. 2--1116 (now 735 ILCS 5/2--
1116 (West 2004)) (adopting partial comparative negligence scheme wherein a plaintiff is barred from
4
That said, we note that the statement in Landrum is based on a passage from Keller in which
the court concluded that the players' descriptions of the game " 'reveal[ed] the adaptation of ordinary
hockey rules for their game and corroborate[d] the common conception of hockey as a contact
sport.' " Landrum, 257 Ill. App. 3d at 948, quoting Keller, 156 Ill. App. 3d at 237. The quoted
passage supports the idea that the players subjectively established and appreciated the relevant risks
based on an adaptation of a commonly understood set of rules, and not the idea that the risks of the
contact sport are to be determined objectively and without regard to the individual players'
expectations.
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recovery if more than 50% at fault, but recovery diminished in proportion to fault if plaintiff is no
more than 50% at fault); D. Lazaroff, Torts & Sports: Participant Liability to Co-Participants for
Injuries Sustained During Competition, 7 U. Miami Ent. & Sports L. Rev. 191, 207 ("If plaintiff does
not appreciate the risk and is unreasonable in not doing so, then comparative fault principles apply");
W. Prosser, Torts §68, at 448 (4th ed. 1971) (the plaintiff's "failure to exercise ordinary care to
discover the danger is not properly a matter of assumption of the risk, but of the defense of
contributory negligence").5 Further, if a plaintiff's conduct in encountering a known risk is
unreasonable, "his conduct is a form of contributory negligence, in which the negligence consists in
making the wrong choice and voluntarily encountering [such] a known unreasonable risk [or
accepting a reasonable risk but failing to exercise proper care against it]." W. Prosser, Torts §68, at
441 (4th ed. 1971). Landrum could be seen as analyzing these instances of a plaintiff's comparative
negligence under the label of the contact sports exception.
That said, we acknowledge two points that make Landrum difficult to reconcile with our
discussion here. First, it is possible that a plaintiff, based on circumstances he or she reasonably had
5
Contributory and comparative negligence are both based on the same idea--that a plaintiff
should not be allowed unfettered recovery when the plaintiff him or herself is at fault. Under the
contributory negligence doctrine, a plaintiff is barred from recovering compensation for his or her
injuries if the plaintiff's negligence contributed to the accident. Alvis, 85 Ill. 2d at 5. Under the
comparative negligence doctrine, a plaintiff's recovery is diminished in proportion to the amount of
negligence attributable to him or her. Alvis, 85 Ill. 2d at 11. As noted, Illinois employs a hybrid of
the two schemes. See 735 ILCS 5/2--1116 (West 2004). We use the two terms without distinction
throughout.
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the opportunity to observe, would not be aware of the objectively physical nature of a game. In such
a situation, absent some other negligence by the plaintiff in agreeing to join the game or failing to
appreciate the risks of the game, or some negligent or willful act or omission by a defendant
misleading the plaintiff regarding the nature of the game, the statement in Landrum that application
of the contact sports exception turns on the objective characteristics of the relevant game cannot be
reconciled with a straightforward application of assumption of the risk principles. Second, the
ultimate effect of a plaintiff's comparative negligence in a case where the plaintiff negligently failed
to appreciate a risk (and thus did not assume the risk) would unlikely per se amount to the same effect
as an assumption of the risk causing the complete bar to a negligence action, because it could not be
presumed that a plaintiff would have assented to a category of risk (or to the defendant's negligence)
had the plaintiff acted reasonably to understand the risks. Instead, the plaintiff's negligence would
be considered under the Illinois partial comparative negligence statute. See 735 ILCS 5/2--1116
(West 2004). In a case where the plaintiff's level of fault is found to be no more than 50%, and thus
the plaintiff is not completely barred from recovery, assumption of the risk principles would diverge
from the holding in Landrum. Accordingly, we recognize that Landrum (and the idea that the contact
sports exception is a "no duty" rule rather than an assumption of the risk rule) cannot fully be
reconciled with our discussion.
Having determined that the contact sports exception finds partial justification in the doctrine
of assumption of the risk, we must examine that doctrine to determine its application to this case.
Common law recognizes three types of assumption of the risk: express assumption of the risk,
primary implied assumption of the risk, and secondary implied assumption of the risk. Duffy v.
Midlothian Country Club, 135 Ill. App. 3d 429, 433-34 (1985). Under express assumption of the
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risk, a plaintiff and a defendant explicitly agree in advance that the defendant owes no legal duty to
the plaintiff and that the plaintiff therefore cannot recover for injuries caused either by risks inherent
in the situation or by dangers created by the defendant's negligence. Duffy, 135 Ill. App. 3d at 433.
Primary implied assumption of the risk, which is the type of risk assumption at issue here, exists when
a plaintiff assumes known risks inherent in a particular activity or situation and thus assumes risks
created not by the defendant but by the situation itself. Sullivan-Coughlin, 349 Ill. App. 3d at 560.
Secondary implied assumption of the risk occurs where a plaintiff knowingly encounters a particular
risk created by a defendant's negligence (Duffy, 135 Ill. App. 3d at 433-34), and thus both the plaintiff
and the defendant share responsibility for the plaintiff's injury.
Because the risks assumed with primary implied assumption of the risk are those created not
by the defendant but rather by the nature of the activity, it has been stated that primary implied
assumption of the risk is not a true negligence defense because no action for negligence is ever
alleged. Duffy, 135 Ill. App. 3d at 433.
This statement highlights the interplay in the sports context between the concepts referred to
above of assumption of the risk and duty. See Knight v. Jewett, 3 Cal. 4th 296, 308, 834 P.2d 696,
703, 11 Cal. Rptr. 2d 2, 9 (1992) ("those instances in which the assumption of risk doctrine embodies
a legal conclusion that there is 'no duty' on the part of the defendant to protect the plaintiff from a
particular risk--the category of assumption of risk that the legal commentators generally refer to as
'primary assumption of risk' "); Ordway v. Superior Court, 198 Cal. App. 3d 98, 104, 243 Cal. Rptr.
536, 539 (1988) (implied assumption of risk is "only another way of stating that the defendant's duty
of care has been reduced in proportion to the hazards attendant to the event"); O'Neill v. Daniels, 523
N.Y.S.2d 264, 265, 135 A.D.2d 1076, 1077 (N.Y. App. Div. 1987) (duty of care owed to a plaintiff
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must be evaluated by considering the risks the plaintiff assumed and how those assumed risks
qualified the defendants' duty to him); W. Prosser, Torts §68, at 440 (4th ed. 1971) (the primary
implied assumption of the risk doctrine results in the "defendant *** simply [being] relieved of the
duty which would otherwise exist"). Assumption of the risk may be viewed as consent to absolve a
defendant of negligence or as consent to hold a defendant to a lower duty of care, such that actions
that would normally be considered negligent would no longer be so considered. Thus, the doctrine
either absolves negligence or changes the standard of care. See F. James, Jr., Assumption of Risk:
Unhappy Reincarnation, 78 Yale L. J. 185, 190 (1968) (assumption of the risk "is simply a confusing
way of stating certain no duty rules or, where there has been a breach of duty toward plaintiff, simply
one kind of contributory negligence");6 see also Restatement (Second) of Torts §496A, Comment c
(1965) (assumption of the risk relieves defendant of duty to plaintiff). (Significantly, as it affects our
policy discussion here, the contact sports exception is also viewed as doing either or both. See
Pfister, 167 Ill. 2d at 425-26 (trial court "properly applied the contact sports exception bar to liability
for injuries caused by *** negligence"); Pfister, 167 Ill. 2d at 421 (contact sports exception creates
a limited duty for sports participants).) As stated above, this overlap in assumption of the risk
between "no duty" principles and contributory negligence is part of the reason that implied
assumption of the risk is not employed under Illinois law absent a contractual or employment
relationship. Barrett, 42 Ill. 2d at 534 (assumption of the risk is not a useful tool, because it is
6
Professor James first advanced the distinction between primary and secondary assumption
of the risk in advocating the abolition of the doctrine of assumption of the risk as a separate defense.
J. Diamond, L. Levine, & M. Madden, Understanding Torts, §15.04, at 272 n.70, 73 (2nd ed. 2000),
citing F. James, Jr., Assumption of Risk, 61 Yale L. J. 141 (1952).
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overlapped by the ideas of consent, lack of duty, and contributory negligence). However, we note
that the two concepts--lack of duty and assumption of the risk vitiating negligence--are not entirely
equal. Indeed, the difference in phrasing can be significant because terming assumption of the risk
an absolution for negligence frames the doctrine as a defense to be asserted and proven by a
defendant, while terming it as changing the standard of care removes the defendant's duty as a matter
of law and relieves the burden of establishing the assumption defense. Also, as demonstrated in
Landrum, a "no duty" rule relies on the objective nature of the sport played, while an assumption of
the risk rule would rely on the plaintiff's subjective knowledge of the sport played.
We further note that assumption of the risk in this context would not overlap with
contributory negligence as it would in most other cases. The generally stated explanation for this
overlap is as follows. See E. Kionka, Implied Assumption of the Risk: Does It Survive Comparative
Fault?, 1982 S. Ill. L. J. 371, 382-86 (1982) (relied on throughout this paragraph). Implied
assumption of the risk can be divided into reasonable and unreasonable assumption of the risk. Any
unreasonable assumption of the risk would obviously equate to comparative or contributory fault by
the plaintiff. "Reasonable" assumption of the risk, which by definition does not involve the plaintiff's
fault, is essentially an illusory concept. In order to be said to assume a risk, a plaintiff must be aware
of the risk and show a willingness to accept it voluntarily. The concept is similar to that of consent
in intentional torts. See also W. Prosser, Torts §68, at 440 (4th ed. 1971) ("The situation [with
express assumption of the risk] is then the same as where the plaintiff consents to the infliction of
what would otherwise be an intentional tort, except that the consent is to run the risk of unintended
injury"); W. Prosser, Torts §68, at 445 (4th ed. 1971) ("the basis of the defense is not contract but
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consent"). The issue of whether a plaintiff has consented to a risk has been dealt with by Professor
Kionka, who offers the following illustration:
"[A]ssume that plaintiff is badly hurt and in need of immediate medical attention. Defendant
offers him a ride in his car, saying 'My brakes are in terrible condition [due to the defendant's
negligence in maintaining the brakes], and may go out any time.' Plaintiff nevertheless accepts
the ride, the brakes fail en route, and plaintiff is seriously injured." E. Kionka, Implied
Assumption of the Risk: Does It Survive Comparative Fault?, 1982 S. Ill. L. J. at 383 (1982).
In that case, the plaintiff was not negligent--accepting the ride was his only reasonable
alternative--but neither did he "manifest consent that defendant be excused from his potential
negligence liability" (E. Kionka, Implied Assumption of the Risk: Does It Survive Comparative
Fault?, 1982 S. Ill. L. J. at 383 (1982)) by acquiescing in the risk of the defendant's faulty brakes.7
His undertaking the risk in such a case is not voluntary but, rather, is compelled by circumstances,
and thus, without intentional and voluntary exposure to a risk, consent to forgo suit cannot be implied
and assumption of the risk should not apply. Therefore, under the above discussion, because
reasonable assumption of the risk is illusory in most circumstances, only unreasonable assumption of
the risk remains, and that concept is subsumed into contributory and comparative negligence.
However, the situation here belies a sweeping generalization based on the discussion above.
In the situation presented here, by contrast, by participating in contact sports, a plaintiff does manifest
his or her voluntary consent to allow other players' negligence--such conduct is inherent in the game.
7
The "lack of actual consent" argument should apply with equal force to unreasonable
assumption of the risk, but because such negligent risk assumption will always be fully subsumed into
contributory negligence, the consent argument adds nothing to the discussion here.
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Also, while there are likely situations, such as a situation involving a clearly overmatched plaintiff,
in which a plaintiff may give such implied (or express) consent negligently, granting the consent under
normal circumstances would be entirely reasonable, as even the courts of this state have indicated that
sports participation is to be encouraged. See Nabozny, 31 Ill. App. 3d at 215.
Because assumption of the risk in the contact sports context is analytically distinct from a "no
duty" rule and is not subsumed into a comparative fault rule, the reasons for restricting the application
of the assumption of the risk rule do not apply. Given that, there may be policy considerations that
support extending the assumption of the risk to this context. The rule, apparently espoused in
Landrum, that the proper analytical approach is simply to assume that there is no duty owed among
contact sports co-participants, provides certainty for those participants on the issue of when their
otherwise negligent conduct will be acceptable, instead of particularizing the question based on each
individual plaintiff's assumption of the risks of the game (or associated negligence). Thus, the "no
duty" approach encourages vigorous participation in sport and provides certainty in the law. Further,
if an assumption of the risk policy were to be adopted, a plaintiff who reasonably assesses the risks
of an activity and nonetheless assumes them would be barred from asserting a negligence claim, while
a plaintiff who unreasonably fails to assess the risks of an activity will be barred from asserting the
same claim only if the plaintiff's percentage of fault (including the fault in failing to assess the risks
of the activity) is greater than 50%. See 735 ILCS 5/2--1116 (West 2004) (a plaintiff is barred from
recovering damages where the plaintiff is more than 50% at fault, and, if the plaintiff's percentage
fault is less than or equal to 50%, the plaintiff's recovery is diminished in proportion to his or her
percentage fault). Thus, the doctrine of assumption of the risk in this context may inequitably and
counterintuitively reward unreasonable plaintiffs. However, a plaintiff who consciously assumes the
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risks of participating in a contact sport also consciously assents not to require a duty of care from co-
participants and thus willingly relinquishes a legal right. Put another way, an implied consent to a risk
in this context is no less a consent than an express consent. Equitable or not, an unreasonable plaintiff
who does not relinquish his or her legal rights in a similar manner would have to be proven to have
acted unreasonably before the plaintiff's assertion of liability would be precluded or the plaintiff's
recovery reduced.
On the other hand, analyzing the contact sports exception under assumption of the risk
principles defines a plaintiff's legal rights in terms of his or her own actions--i.e., it does not allow a
plaintiff to forgo a negligence cause of action unwittingly. Or, as stated by Professor Prosser, "What,
in [a case where the plaintiff is not at fault but understands a particular risk], changes 'duty' to 'no
duty;' and if it is not to be called assumption of risk, what better name can be found? And should not
the burden be upon the defendant to establish the change in the situation?" W. Prosser, Torts §68,
at 455-56 (4th ed. 1971).8
Knight, discussed below, addressed this policy choice and decided in favor of the "no duty"
approach, for three basic reasons. See Knight, 3 Cal. 4th at 311-13, 834 P.2d at 705-06, 11 Cal.
Rptr. 2d at 11-12. First, the California Supreme Court noted that the idea of implied consent would
apply as much to an unreasonable plaintiff as to a reasonable one, but California law provided that
an unreasonable plaintiff undertaking a risk is not completely barred from recovery. Knight, 3 Cal.
8
Again, the counterargument to this point, that a reasonable plaintiff would not truly consent
(and therefore not truly assume the risk), does not apply in the contact sports context, where the
plaintiff is reasonable and his conduct implies not merely acquiescence but actual voluntary reasonable
participation in a risk and thus actual consent to forgo suit based on the risk.
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4th at 311, 834 P.2d at 705, 11 Cal. Rptr. 2d at 11. Of course, if assumption of the risk were seen
to refer to instances of implied consent, it would diverge from a plaintiff's contributory negligence
and, in the case of an unreasonable plaintiff who assumes a risk, either concept would act as a defense
against the negligent plaintiff's claim. Second, the California Supreme Court argued that "[i]t may
be accurate to suggest that [a participant] 'consents to' or 'agrees to assume' the risks inherent in the
activity or sport itself," but "it is thoroughly unrealistic to suggest that *** an individual consents to
*** a breach of duty by others that increases the risks inevitably posed by the activity or sport itself."
Knight, 3 Cal. 4th at 311, 834 P.2d at 705, 11 Cal. Rptr. 2d at 11. This statement overstates the
reach of the implied consent, which would apply only to those risks inevitably posed by the sport
itself, not to conduct that increases the risks posed beyond that threshold. Third, Knight argues that
a subjective assumption of the risk approach would cause "drastic disparities in the manner in which
the law would treat defendants who engaged in precisely the same conduct, based on the often
unknown, subjective expectations of the particular plaintiff." Knight, 3 Cal. 4th at 313, 834 P.2d at
706, 11 Cal. Rptr. 2d at 12. This, as noted, is a valid argument against the implied consent,
assumption of the risk approach.
All of that said, as noted above, Illinois law is clear in stating that implied assumption of the
risk does not apply outside of contractual or employment relationships, and thus the question has
been decided in favor of the "no duty" approach, with the principles of assumption of the risk
supplying part of the rationale for lowering the applicable duty of care. We do not propose to alter
that approach here; indeed, the "no duty" approach is consistent with the principles, other than
assumption of the risk, discussed below that support the contact sports exception. We provide the
above discussion only to help contour our analysis.
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We note that Nabozny was decided in 1975, and, six years later, our supreme court
abandoned the doctrine of contributory negligence in favor of a comparative negligence scheme.
Alvis, 85 Ill. 2d 1. The decision in Alvis was later abrogated by statute, and, under current Illinois
law, a plaintiff is barred from recovering damages where the plaintiff is more than 50% at fault, and,
if the plaintiff's percentage fault is less than or equal to 50%, the plaintiff's recovery is diminished in
proportion to his or her percentage fault. 735 ILCS 5/2--1116(c) (West 2004). The fault to be
considered under this partial comparative negligence scheme includes fault relating to assumption of
the risk (i.e., the overlap between contributory negligence and assumption of the risk discussed
above). 735 ILCS 5/2--1116(b) (West 2004). After the change in law, there may be some question
as to the viability of the contact sports exception insofar as it is based upon assumption of the risk
principles.
The comparative fault scheme in Illinois, however, has been held to have no effect on express
assumption of the risk or implied primary assumption of the risk, even though it has been held to
overrule implied secondary assumption of the risk. Savino, 273 Ill. App. 3d at 816-17. Two
rationales have been offered for this holding. First, it has been said that "[i]mplied secondary
assumption of risk is a form of fault resulting from unreasonable conduct by plaintiff." Wheeler v.
Roselawn Memory Gardens, 188 Ill. App. 3d 193, 202 (1989). Indeed, as noted above, implied
assumption of the risk, as a direct corollary to express assumption of the risk, must indicate that the
plaintiff agrees not only to undertake the risk (i.e., acquiesces to the risk) but also that the plaintiff
consents to the risk (and thus consents to forgo the right to sue based on injury from the risk). In
most fact situations, a plaintiff who reasonably undertakes a risk does so not fully voluntarily, but
because the risk offers the most viable alternative. Thus, there is no consent to the tort, and the
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assumption of the risk is not complete. Of course, a plaintiff who unreasonably undertakes a risk is
contributorily negligent. Therefore, an implied assumption of the risk almost always denotes an
unreasonable choice by the plaintiff. But this fault concept is not a reason to distinguish primary from
secondary implied risk assumption, because a plaintiff does not necessarily act reasonably in
undertaking an express or primary implied assumption of a risk.
The second expressed rationale for the holding that the adoption of comparative negligence
principles does not affect express or primary implied assumption of the risk but does affect secondary
implied assumption of the risk is that "the secondary doctrine places greater burdens on plaintiff
without his express consent." Duffy, 135 Ill. App. 3d at 434. However, again, that statement is no
less true of primary implied assumption of the risk.
The reason the principles of assumption of the risk should survive enactment of a partial
comparative negligence scheme is, as discussed above, the idea that assumption of the risk, especially
in the context presented here, may exist independently of any fault by the plaintiff, and a plaintiff, even
when not at fault, should be held to the terms of his or her express or implied consent to certain risks.
See W. Prosser, Torts §68, at 441 (4th ed. 1971) ("Obviously [contributory negligence and
assumption of the risk] may coexist when the plaintiff makes an unreasonable choice to incur the risk;
but either may exist without the other"). This holds true regardless of the type of assumption of the
risk at issue.
Further, we note that in 1995, in Pfister, our supreme court affirmed and applied the contact
sports exception and in fact examined the exception in light of risk assumption principles, after Illinois
adopted the above-described partial comparative negligence scheme. Pfister, 167 Ill. 2d 417.
Therefore, because the supreme court implicitly viewed the contact sports exception as surviving
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Illinois' adoption of partial comparative fault and partially relied on risk assumption principles to do
so, we are confident in taking the same approach. Wreglesworth, 316 Ill. App. 3d at 1030 ("We are
bound by the principle of stare decisis and must adhere to the decisions of our supreme court").
Based on the above discussion of applications of the contact sports exception, it appears that
the exception is premised on the idea that participants in contact sporting games assume and consent
to risks associated with the physical nature of those games. Also based on the above discussion, we
conclude that the principles underlying assumption of the risk--primarily, that the plaintiff has
consented to a risk--apply with equal force as protection for co-participants and as protection for
organizers based on the conduct of co-participants. A plaintiff no less assumes the risk of a co-
participant's negligent conduct if the conduct is brought about by some antecedent negligence from
another party. Put another way, a coach's or organizer's negligence leading to a player's negligence
does not increase the risks inherent in the game, which, as recognized by Illinois law, include
negligent play. As such, we agree with the organizational defendants that the consent granted by each
participant is not specific to the similarly situated participants, but instead to the risks associated with
the game, regardless of whether the risks stem from co-participants or some other source. Thus, to
the extent that the contact sports exception is based on assumption of the risk, the policy
considerations underlying that doctrine lead us toward expanding the exception to organizers and
coaches.
Our approach on this issue is hardly novel in tort law, and, indeed, other jurisdictions
considering the issues posed here have reached similar legal conclusions.9 The seminal case on the
9
As may be expected, there are also jurisdictions that have not followed our approach. We
highlight here only cases that help illustrate our approach and note that our discussion of the law of
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issue of sports participation liability is Knight, 3 Cal. 4th 296, 834 P.2d 696, 11 Cal. Rptr. 2d 2.
There, the plaintiff was injured during the course of an informal touch football game amongst friends
when the defendant, whom the plaintiff had cautioned for what she perceived to be his overly rough
play, accidentally knocked over the plaintiff and stepped on her hand. Knight, 3 Cal. 4th at 300, 834
P.2d at 697, 11 Cal. Rptr. 2d at 3. The California Supreme Court first determined the reach of the
doctrine of assumption of the risk in light of the state's adoption of comparative fault principles in
place of contributory fault principles, and it concluded that primary assumption of the risk survived
that change in the law. Knight, 3 Cal. 4th at 303-15, 834 P.2d at 699-708, 11 Cal. Rptr. 2d at 5-14.
It equated the primary assumption of the risk doctrine to a "no duty" rule, and it criticized the
subjective assumption of the risk (implied consent) approach described above in favor of the "no
duty" approach, also described above. See Knight, 3 Cal. 4th at 311-13, 834 P.2d at 705-06, 11 Cal.
Rptr. 2d at 11-12 . Based on this discussion, the California Supreme Court noted that "[a]lthough
defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in
the sport itself, it is well established that defendants generally do have a duty to use due care not to
increase the risks to a participant over and above those inherent in the sport." Knight, 3 Cal. 4th at
315-16, 834 P.2d at 708, 11 Cal. Rptr. 2d at 14. But the careless conduct of others is often treated
as an inherent risk of a sport. Knight, 3 Cal. 4th at 316, 834 P.2d at 708, 11 Cal. Rptr. 2d at 14.
Thus, the court in Knight adopted the rule that a participant in an "active sport breaches a legal duty
of care to other participants *** only if the participant intentionally injures another player or engages
in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the
sport." Knight, 3 Cal. 4th at 320, 834 P.2d at 711, 11 Cal. Rptr. 2d at 17. Accordingly, the court
other jurisdictions is not meant to be exhaustive.
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concluded that the plaintiff's action was barred by the primary assumption of the risk doctrine.
Knight, 3 Cal. 4th at 320, 834 P.2d at 712, 11 Cal. Rptr. 2d at 18. (We note above that assumption
of the risk and lack of duty are interrelated but distinct concepts, and we do not repeat that discussion
here.)
The holding in Knight was applied in a coaching supervision case in Balthazor v. Little League
Baseball, Inc., 62 Cal. App. 4th 47, 72 Cal. Rptr. 2d 337 (1998). There, a little league baseball player
sued his league after he was injured by a pitch that hit him in the face. Balthazor, 62 Cal. App. 4th
at 49, 72 Cal. Rptr. 2d at 338. The California Appellate Court first turned to Knight for its discussion
of primary assumption of the risk as it relates to the duty owed to sports participants. Balthazor, 62
Cal. App. 4th at 49-50, 72 Cal. Rptr. 2d at 339. The court then noted that, according to established
case law, "instructors 'have a duty to use due care not to increase the risks to a participant over and
above those inherent in the sport.' " Balthazor, 62 Cal. App. 4th at 50, 72 Cal. Rptr. 2d at 339.
Based on that rule, the court rejected the plaintiff's arguments that the league should be held liable
for allowing the game to continue when the sun began to set (and thus visibility was poor) and
allowing a pitcher with erratic control of his pitches to remain in the game, because each of those
risks was inherent in the game played. Balthazor, 62 Cal. App. 4th at 51-52, 72 Cal. Rptr. 2d at 340-
41 .
Our decision here, that, so long as the player defendants' conduct was negligent or acceptable,
the organizational defendants are protected by the Illinois contact sports exception, is consistent both
with the assumption of the risk rationale employed in Knight and also with its oft-quoted statement
that the duty of care in contact sports is to avoid "increas[ing] the risks to a participant over and
above those inherent in the sport." So long as Strevell's and Zimmerman's conduct was negligent or
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acceptable, it was inherent in the sport, and any negligence by the organizer-defendants leading to
such negligent/acceptable conduct thus could not have increased the risks to Benjamin over and
above those inherent in the sport.
More courts from other states rely on Knight (or similar reasoning) in defining the scope of
sports liability in their respective jurisdictions. In Kelly v. McCarrick, 155 Md. App. 82, 841 A.2d
869 (2004), the Court of Special Appeals of Maryland considered a case in which a plaintiff was
injured while trying to tag a sliding member of the opposing team during a softball game. Among the
grounds for the plaintiff's suit was that the plaintiff was injured as a result her coaches' failure to
instruct her on how to avoid injury. Kelly, 155 Md. App. at 87, 841 A.2d at 873. The Kelly court
examined the doctrine of assumption of the risk and determined that it applied to negligent coaching
situations. Kelly, 155 Md. App. at 101-15, 841 A.2d at 875-88. It also cited, and apparently relied
on, the California rule that a coach should be liable only where he or she increases the inherent danger
of a sport. Kelly, 155 Md. App. at 104, 841 A.2d at 889, citing Kahn v. East Side Union High
School District, 31 Cal. 4th 990, 75 P.3d 30, 4 Cal. Rptr. 3d 103 (2003). Thus, it held that the
plaintiff assumed the risk of injury as a result of a slide play, and she could not recover. Kelly, 155
Md. App. at 115, 841 A.2d 892-93.
In Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 807 A.2d 1274 (2002),
the plaintiff sued several organizers of a recreational softball tournament game in which she was
struck in the head with an errantly thrown softball. The New Hampshire Supreme Court began its
analysis by discussing the origins of the doctrine of primary assumption of the risk before determining
that the doctrine, which it termed a "no duty" rule, applied. Allen,148 N.H. at 415-16, 807 A.2d at
1282-83. Based on this doctrine, the court "conclude[d] that when [the plaintiff] voluntarily played
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softball--a reasonable activity that she knew involved obvious risks--the [organizer] defendants had
no duty to protect her against injury caused by those risks." Allen, 148 N.H. at 416, 807 A.2d at
1283. The Allen court went on to state that, when "extraordinary risks" were alleged, a negligence
standard of care should apply instead of the "no duty" rule. Allen, 148 N.H. at 416-18, 807 A.2d at
1283-84. Thus, under Allen, a participant or organizer who creates only "normal or ordinary" risks
does not breach a standard of care. Allen, 148 N.H. at 417-18, 807 A.2d at 1284. The holding in
Allen mirrors our reasoning here and also our holding that organizers should not be liable for
negligence leading to risks inherent in the game played but should be liable for negligence leading to
noninherent risks (or for willful and wanton conduct in either event).
Plaintiff argues that the organizational defendants' alleged conduct--the failure to supervise
and to prevent the injury--is a different risk than the misconduct attributed to Strevell and Zimmerman
and therefore the contact sports exception cannot extend to protect the organizational defendants.
We disagree. Plaintiff has alleged that the organizational defendants' allegedly tortious conduct was
different, but the relevant risk to Benjamin--his being injured by a check from behind--remains the
same. In other words, Benjamin consented to his co-players' and the organizers' negligence leading
to risks inherent in the game of hockey in his league. See W. Prosser, Torts §68, at 445 (4th ed.
1971) ("the basis of [assumption of the risk] is not contract but consent"). Implicit in Benjamin's
assumption of the risks associated with hockey was his consent to forgo negligence actions based on
risks inherent in the game. Thus, based on assumption of the risk principles, it stands to reason that
the contact sports exception should be extended to protect the organizers and coaches from liability
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for negligence leading to player conduct that cannot otherwise form a basis for liability due to the
contact sports exception.10
Aside from our discussion of assumption of the risk principles, our consideration of the other
contact sports exception policy goals announced in Nabozny and Pfister leads us toward the same
result. As stated in those cases, the other policy considerations underlying the contact sports
exception are that sports injuries due to negligence are inevitable and that " '[i]f every time a negligent
foul resulted in injury, and liability was imposed, [sports] as we know [them] would not be played.' "
Pfister, 167 Ill. 2d at 427, quoting Pfister v. Shusta, 256 Ill. App. 3d 186, 192 (1994) (Green, J.,
dissenting). Also, "the law should not place unreasonable burdens on *** free and vigorous
participation in sports," even if "some of the restraints of civilization must accompany every athlete
on to the playing field." Nabozny, 31 Ill. App. 3d at 215. Applying those considerations here, we
note that organized sports would suffer a chilling effect similar to the one Pfister and Nabozny sought
to avoid if organizers and coaches were to be held liable for the same inevitable negligent conduct.
In order to avoid liability, organizers would be forced either to change the fundamental nature of the
10
This is consistent with Professor Prosser's example in which person A leaves his passenger
in an automobile on the highway at night and then person B drives into the car from behind. W.
Prosser, Torts §68, at 445 (4th ed. 1971). In that example, the passenger consents only to A's
negligence, not B's, if B was negligent. W. Prosser, Torts §68, at 445 (4th ed. 1971). In other
words, the passenger assumes the risk of a nonnegligent driver hitting the car by virtue of A's actions,
but does not assume the risk of a negligent driver doing so, because that is an unforeseen interceding
cause. However, just as Benjamin here, the passenger does assume the risk of any antecedent
negligence causing (and thus subsumed into) A's negligence, because she consented to A's negligence.
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games they organize or to withdraw completely from overseeing the games. In the first situation, the
law would burden the free and vigorous participation in sports to such a degree as to change the
nature of the sports. In the second situation, the law would forestall organized and coached sports
competition altogether. Neither result is desirable, and extending the contact sports exception to
protect organizers and coaches from liability stemming from the same negligence the exception
already protects would serve the interests of the exception.
Of course, the above policy goals press against the countervailing policy goal of safety, as
referenced in the above quote from Nabozny. See generally T. Fitzgerald, The "Inherent Risk"
Doctrine, Amateur Coaching Negligence, and the Goal of Loss Avoidance, 99 Nw. U. L. Rev. 889
(2005) (arguing for liability for coaching negligence based on safety concerns and relative societal
costs). However, though participant safety is a valid and prominent concern, it would scarcely be
advanced by imposing a duty upon coaches and organizers in the manner sought here. Even if the
organizational defendants were to be held liable for the player defendants' negligence, the very danger
plaintiff seeks to reduce--the negligence of co-participants--would nevertheless continue. Holding
coaches and organizers liable for their own negligence leading to negligent conduct by players may
cause more conscientious coaching, but, as acknowledged by the case law, negligent play is an
unavoidable, intrinsic characteristic of contact sports and therefore could not be avoided entirely even
with exemplary coaching. Further, as noted above, a likely consequence of allowing negligence
liability to extend to organizers and coaches for their negligent conduct leading to negligent play
would be that those people would withdraw from organizing and coaching games. When participants
would then endeavor to engage in the activities without organization or coaching, they would lack
the skill and regard for safety that coaches and organizers would otherwise instill, thus rendering
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contact sports even more dangerous. As such, based on all of the considerations stated, we conclude
that, under Illinois law, the contact sports exception does extend to coaches and organizers for their
negligence leading to risks that are otherwise inherent in the relevant sport.
In reaching this conclusion, we reject an opposing formulation that would hold coaches and
organizers liable in negligence even for injury caused by another player's negligence where a
defendant coach increased the risk of the negligent conduct. See Foronda v. Hawaii International
Boxing Club, 96 Haw. 51, 70, 25 P.3d 826, 845 (2001) (relying on rule from Knight, but concluding,
without noting its departure, that liability was precluded because "coaching and supervision during
the fatal accident did not *** create a new risk or exacerbate an inherent risk"); Benitez v. New York
City Board of Education, 73 N.Y.2d 650, 658, 543 N.Y.S.2d 29, 33, 641 N.E.2d 29, 33 (1989)
("Players who voluntarily join in extracurricular interscholastic sports assume the risks to which their
roles expose them but not risks which are 'unreasonably increased or concealed' "). While it may be
argued that such coaching negligence constitutes a latent risk incapable of being appreciated by
opposing players, the risk of negligent play is no less latent if it comes about solely as a result of an
opposing player's lack of skill. Further, as discussed above, a plaintiff is assumed to expect the full
continuum of negligence from co-participants, and, whether or not the amount of negligence is
increased within the acceptable range, it still falls within the range of expected negligence. It would
be strange to hold a coach liable for a player's negligence after reasoning that the plaintiff's risk
assumption precludes recovery against the negligent player for the same negligence. Finally, as just
stated, holding coaches liable for such negligence would defeat the policy goals (outside of risk
assumption principles) the contact sports exception was created to uphold.
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The organizational defendants are protected by the contact sports exception to the same
extent that the player defendants are protected--that is, they are protected from liability for negligence
associated with risks inherent in the sport.
That said, as noted below, we disagree with the organizational defendants' argument that
Benjamin assumed the risk of being checked from behind in the manner plaintiff alleges, because
Strevell's and Zimmerman's conduct here is alleged to have been willful and wanton and thus beyond
the risks inherent in the game. The organizational defendants' argument presupposes the insufficiency
of count I of plaintiff's second amended complaint.
For clarity, we note that we hold that the contact sports exception precludes liability only for
negligence associated with an injury caused by a risk associated with engaging in a contact sport--i.e.,
a risk inherent in the sport. It does not insulate defendants from negligence liability for injuries arising
from circumstances that are outside the context of physical play and are not inherent in the play of
the game. Put another way, a plaintiff cannot circumvent the contact sports exception by alleging
simple negligence against the organizers of the sport leading to injury as a result of the manner in
which the game was played, but a plaintiff can succeed on a claim of simple negligence leading to
injury as a result of, e.g., field design (Ward, 243 Ill. App. 3d 968 (holding that school district could
be liable for negligently locating two playing fields almost immediately adjacent to one another)). Of
course, a coach's negligence directly leading to injury (as opposed to here, where it is alleged to be
an antecedent cause of more direct acts by Strevell and Zimmerman) may fall outside the protection
of the contact sports exception where it creates a risk not inherent in the game. The exception also
does not protect third parties (such as the organizational defendants here) from claims that their
negligence caused a participant to engage in willful and wanton conduct that led to an injury, because
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willful and wanton conduct falls outside the scope of the risks assumed by contact sports participants,
beyond the rationale for the contact sports exception stated in Nabozny, and thus outside the scope
of the contact sports exception. That said, we note that a plaintiff's subjective assumption of the risk
of circumstances not inherent in the play of the game, such as the negligent design of the field, would
preclude liability to the extent that it constituted contributory or comparative negligence, even if the
bar to recovery could not be labeled as either the "contact sports exception" or assumption of the risk.
See T. B. Fitzgerald, The "Inherent Risk" Doctrine, Amateur Coaching Negligence, and the Goal of
Loss Avoidance, 99 Nw. U. L. Rev. 889, 903-04 (2005) (players "do not implicitly assume the risks
associated with defective athletic equipment [] although they may assume such risks under secondary
implied assumption of risk []").
Applying the above rule to the current case, we conclude that the risk here--being checked
from behind in the manner plaintiff alleges--may be proven to be one that is not normally associated
with hockey play in this league. While the contact sports exception may insulate the organizational
defendants from liability based on negligently caused injuries sustained as a result of rough play, the
injury here, as discussed above, is alleged to have been the result of willful and wanton conduct. As
such, it falls beyond the scope of protection the contact sports exception affords. Because we hold
above that plaintiff successfully pled Strevell's and Zimmerman's willful and wanton conduct, we hold
that the contact sports exception does not protect the organizational defendants for their negligence
leading to the allegedly willful and wanton conduct. However, we note again for clarity that, based
on our discussion above, if plaintiff fails on remand to prove Strevell's and Zimmerman's willful and
wanton conduct (and thus fails to prove that Benjamin's injury was a result of a risk not inherent in
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the game), then the contact sports exception applies to insulate the organizational defendants from
negligence liability for any injury caused by Strevell's and Zimmerman's negligence.
A fair reading of plaintiff's complaint leads us to conclude that he alleged that the
organizational defendants' negligence caused Strevell's and Zimmerman's allegedly willful and wanton
conduct. Though plaintiff does not explicitly say in his complaint that the negligence alleged against
the organizational defendants caused willful and wanton conduct by the player defendants, he does
state in each of the three counts against the organizational defendants that "[a]s a proximate result
of one or more of the *** negligent acts and/or omissions *** [, Benjamin] has suffered *** injuries."
Taking this allegation in conjunction with plaintiff's theory of the case--that Strevell's and
Zimmerman's conduct was willful and wanton--we read plaintiff's complaint as alleging that the
organizational defendants' negligence proximately caused Benjamin's injury by causing the players'
allegedly willful and wanton conduct.
The organizational defendants premise their entire argument in support of dismissing counts
II, IV, and VI of the second amended complaint on the contact sports exception. Therefore, we do
not consider other possible obstacles to the organizational defendants' liability. However, we note
that, though game organizers' refuge in the contact sports exception is limited as described above,
their liability in these situations may be curtailed by the requirements of proximate causation in cases
involving injuries caused by the intervening acts of third parties. The term "proximate cause"
describes two distinct requirements: cause in fact and legal cause. Abrams v. City of Chicago, 211
Ill. 2d 251, 258 (2004). A defendant's conduct is a cause in fact of the plaintiff's injury if that conduct
is a material element and substantial factor in bringing about the injury. Abrams, 211 Ill. 2d at 258.
By contrast, a defendant's conduct is the legal cause of the plaintiff's injury where " 'the injury is of
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a type that a reasonable person would see as a likely result of his or her conduct.' " (Emphasis in
original.) Abrams, 211 Ill. 2d at 258, quoting First Springfield Bank & Trust v. Galman, 188 Ill. 2d
252, 260 (1999). In a case where the plaintiff's injuries result not from the defendant's negligence
directly but from the subsequent, independent act of a third person, then the test is " 'whether the first
wrongdoer *** might have anticipated the intervening efficient cause as a natural and probable result
of the first party's own negligence.' " Abrams, 211 Ill. 2d at 259, quoting Galman, 188 Ill. 2d at 257.
This principle offers further protection to those in the organizational defendants' situation. The
organizational defendants might have argued that, even if they negligently failed to enforce the rules
against checking from behind, such negligence led directly only to players' negligent checking from
behind, as opposed to players' willfully and wantonly checking from behind, and the additional
malfeasance that lifted the act into willful and wanton behavior came independently from the players.
Because the organizational defendants do not raise this issue, we do not consider its application to
this case. However, we do note that issues of proximate causation and intervening willful and wanton
or intentional acts may become relevant as this litigation progresses.
Plaintiff relies on three Illinois cases in arguing that organizers owe to players a duty that
defeats the contact sports exception. See Godee v. Illinois Youth Soccer Ass'n, 327 Ill. App. 3d 695
(2002); Loosier v. Youth Baseball & Softball, Inc., 142 Ill. App. 3d 313 (1986); Lynch v. Board of
Education of Collinsville Community Unit District No. 10, 82 Ill. 2d 415 (1980). We disagree with
plaintiff's reading of all three cases. In Godee, the plaintiff sued two youth soccer coaches and two
youth soccer organizations for injuries she sustained when she slipped and fell in a drainage ditch by
a school's field as she walked to the parking lot following her son's practice soccer game. Godee, 327
Ill. App. 3d 695. Likewise, in Loosier, a minor plaintiff sued a baseball organization for failing to
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supervise him in order to prevent injuries he sustained when he was struck by a truck while trying to
cross an interstate highway. Loosier, 142 Ill. App. 3d 313. Neither of these cases involves an injury
a participant sustained as a proximate result of a failure to supervise participation in a contact sport.
In Lynch, our supreme court considered a case in which a plaintiff student was injured during
a female "powder-puff" tackle football game that the court held to be a school activity. Lynch, 82
Ill. 2d 415. The supreme court affirmed a verdict finding the defendant school district liable for
failing to provide protective equipment to the participants. However, as the organizational
defendants point out, liability in that case was premised not on a general duty of care but instead on
a statute providing that teachers and educational employees stood " 'in the relation of parents and
guardians' " to the children in all school activities. Lynch, 82 Ill. 2d at 424, quoting Ill. Rev. Stat.
1973, ch. 122, par. 24--24.
Thus, plaintiff's cases do not sway us from our above-stated conclusion regarding the
application of the contact sports exception to sports coaches and organizers. However, because
plaintiff may be able to establish that the organizational defendants' negligence led to willful and
wanton play causing Benjamin's injury, we reverse the trial court's dismissal of counts II, IV, and VI
of plaintiff's second amended complaint.
Plaintiff's third appellate argument is that the trial court erred in dismissing counts III, V, and
VII of the second amended complaint for failing to allege willful and wanton conduct by NCRHA,
AHAI, and IHOA. The relevant standards for stating a claim premised on willful and wanton conduct
are discussed above. Plaintiff admittedly repeated his allegations from the negligence counts against
the organizational defendants in attempting to plead willful and wanton conduct, but plaintiff asserts
that he has alleged facts sufficient to meet both standards. We disagree. Plaintiff's essential
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contention regarding all three organizational defendants is that they failed to enforce hockey safety
rules sufficiently, and that this failure led to, and perhaps encouraged, Strevell's and Zimmerman's
allegedly improper conduct, which caused Benjamin's injury. While we do not dispute plaintiff's
assertion that omissions or failures to act can constitute willful and wanton conduct (see, e.g., Carter
v. New Trier East High School, 272 Ill. App. 3d 551 (1995)), we hold that the omissions and failures
alleged here, even if proven, would not amount to willful and wanton conduct. Plaintiff attempts to
characterize the organizational defendants' actions as "encouragement" of acts in violation of the
safety rules, and plaintiff then argues that "it can hardly be said that an organization's promotion or
encouragement of an action in violation of a safety rule" is not willful and wanton. However, the
alleged encouragement comes only from IHOA's failure to strictly enforce the relevant hockey rules
and the other organizations' failure to compel IHOA to strictly enforce the rules. We reject plaintiff's
characterization and consider only the factual allegations of the complaint. Even taking those
allegations as true, they raise no inference that the organizational defendants' failure to act was
undertaken with an intention to harm or an utter indifference or conscious disregard for Benjamin's
welfare. Accordingly, we affirm the trial court's dismissal of counts III, V, and VII of plaintiff's
second amended complaint.
Plaintiff's fourth appellate argument is that the trial court erred in dismissing count VIII of the
third amended complaint for failing to state a claim of civil conspiracy between AHAI and IHOA.
Civil conspiracy consists of (1) an agreement between two or more persons (2) for the purpose of
accomplishing by some concerted action either an unlawful purpose or a lawful purpose by unlawful
means, and (3) some tortious or illegal act by a party to the agreement in furtherance of the
agreement. Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 62-63 (1994). The function of a conspiracy
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claim is to extend liability in tort beyond the active wrongdoer to those who have merely planned,
assisted, or encouraged the wrongdoer's acts. Adcock, 164 Ill. 2d at 62.
AHAI and IHOA challenge all three elements here. AHAI and IHOA argue that plaintiff
failed to allege facts suggesting that AHAI and IHOA entered into an agreement not to call penalties
for checking from behind, because plaintiff's third amended complaint actually alleges that AHAI
engaged in conduct designed to encourage IHOA to call checking from behind violations. Indeed,
paragraph 12 of the third amended complaint alleges that AHAI changed its rules to increase the
penalty for checking from behind. AHAI and IHOA also note that plaintiff's allegations are "dispelled
by plaintiff's own allegation *** that each *** jersey had sewn on the back the warning 'STOP'."
However, each of their arguments points to a potential factual issue, and the presence of a factual
issue militates against dismissing count VIII before discovery.
AHAI and IHOA also argue that plaintiff has not sufficiently alleged an agreement between
AHAI and IHOA, because he alleged only AHAI's knowledge of IHOA's failure to call checking from
behind penalties, and "knowledge of the fraudulent or illegal actions of another is *** not enough to
show a conspiracy." McClure v. Owens Corning Fiberglass Corp., 188 Ill. 2d 102, 134 (1999).
However, plaintiff alleges not only that AHAI was aware of IHOA's failure to call the penalties, but
also that the two organizations "agreed to not enforce the aforesaid checking from behind rule during
games that occurred under the authority of the rule of *** AHAI." Taking this factual allegation as
true, we hold that plaintiff has adequately alleged an agreement between AHAI and IHOA.
AHAI and IHOA next challenge the sufficiency of plaintiff's allegations to support the second
element of a conspiracy claim: that AHAI and IHOA held an unlawful purpose or a lawful purpose
to be accomplished by unlawful means. AHAI and IHOA argue that IHOA's decision on whether to
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enforce rules during a hockey game is not unlawful. As discussed above, plaintiff has successfully
alleged that IHOA may be liable in tort for the allegedly willful and wanton injurious conduct
resulting from its negligence in failing to enforce the relevant hockey safety rules. Therefore, to the
extent that plaintiff is able to prove that liability, he will be able to prove that the purpose of the
agreement he alleges between AHAI and IHOA was tortious, i.e., unlawful. Moreover, "[o]nce a
defendant knowingly agrees with another to commit an unlawful act or a lawful act in an unlawful
manner, that defendant may be held liable for any tortious act committed in furtherance of the
conspiracy, whether such tortious act is intentional or negligent." (Emphasis added.) Adcock, 164
Ill. 2d at 64.
Again, at this point, we note that AHAI and IHOA have not raised any argument regarding
proximate causation--AHAI and IHOA do not argue that they did not or could not foresee, at the
time of their alleged agreement, that Strevell's and Zimmerman's allegedly willful and wanton acts
would come about as a result of AHAI and IHOA's alleged agreement. Such an argument would
bear on the illegality of the alleged agreement. AHAI and IHOA could argue that, if the intervening
willful and wanton acts were not foreseeable at the time of their agreement, their agreement not to
enforce a rule was not, by itself, an agreement to commit a tortious act, because a failure to enforce
a rule, even if negligent, is not necessarily tortious in this context. If plaintiff fails to demonstrate this
proximate causation as this case moves forward, then the conspiracy charge will necessarily fail.
Finally, AHAI and IHOA argue that plaintiff has not alleged an overt tortious act on the part
of AHAI or IHOA, because "[p]laintiff was allegedly checked from behind by his fellow hockey
players and *** [that was] not the act of either AHAI or IHOA." However, the relevant potentially
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tortious act under the conspiracy count is not Strevell's and Zimmerman's checking of Benjamin, but
IHOA's potentially negligent failure to enforce the applicable hockey safety rules.
For the reasons given, we reverse the judgment of the circuit court of Du Page County as to
counts I, II, IV, and VI of plaintiff's second amended complaint, and we reverse the dismissal of count
VIII of the third amended complaint. We affirm the dismissal of counts III, V, and VII of plaintiff's
second amended complaint. We remand the cause.
Reversed and remanded.
HUTCHINSON, J., concurs.
JUSTICE KAPALA, concurring in part and dissenting in part:
I concur with the majority's decisions to reverse the trial court's dismissal of count I of
plaintiff's second amended complaint and to affirm the trial court's dismissal of counts III, V, and VII
of plaintiff's second amended complaint. However, I cannot agree that plaintiff has alleged the facts
necessary to support his claims of negligence against the NCRHA, the AHAI, and the IHOA, or that
plaintiff has properly pleaded a cause of action for civil conspiracy. Therefore, I respectfully dissent
from the majority's decision to reverse the trial court's dismissal of counts II, IV, and VI of plaintiff's
second amended complaint and count VIII of plaintiff's third amended complaint. I will first address
plaintiff's claims of negligence against the organizational defendants (counts II, IV and VI) and then
proceed to confront the insufficiency of plaintiff's civil conspiracy claim against the AHAI and the
IHOA.
I agree with the majority's conclusion that the contact sports exception applies to sports
organizations and that, as a result, these organizations have no legal duty to eliminate risks inherent
in the sport itself, such as other players' negligent conduct. I also agree with the majority that sports
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organizers have a duty not to increase the risks to a participant over and above those inherent in the
sport and that this includes a duty not to cause willful and wanton conduct of the players towards one
another. However, none of plaintiff's claims of negligence against the organizational defendants
alleges facts sufficient to show any connection between the alleged actions and omissions of the
organizational defendants and the alleged willful and wanton conduct of Strevell and Zimmerman.
In counts II, IV, and VI of his second amended complaint, plaintiff alleges that the
organizational defendants were negligent in various ways, including failing to supervise, instruct, and
discipline players, officials, and teams in regard to checking from behind, and by promoting,
encouraging, and condoning checking from behind. However, plaintiff alleges only that the
organizational defendants caused Benjamin's injuries. Plaintiff does not allege facts showing how the
actions of the organizational defendants caused Strevell's and Zimmerman's alleged reckless disregard
for Benjamin's safety. In fact, plaintiff does not allege that the actions of the organizational
defendants had any effect on the players, but only that their actions caused Benjamin's injuries.
The majority suggests that "a fair reading of plaintiff's complaint leads us to conclude that he
alleged that the organizational defendants' negligence caused Strevell's and Zimmerman's allegedly
willful and wanton conduct." Slip op. at 43. I disagree. Although pleadings must be liberally
construed in the light most favorable to the plaintiff, the failure to plead facts cannot be aided by any
principle of liberal construction. Doe v. Chicago Board of Education, 213 Ill. 2d 19, 28 (2004).
Plaintiff does not plead any facts to show how the organizational defendants' failure to promote the
rule against checking from behind caused the actions of Strevell and Zimmerman. Even aside from
the organizational defendants' specific effect on Strevell and Zimmerman, plaintiff never alleges any
facts generally showing how the organizational defendants increased the risk of the players' reckless
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disregard for the safety of other players above and beyond violating the rules of the game. Plaintiff's
complaint at most suggests that the organizational defendants facilitated an environment that would
cause players to break the rule against checking from behind. As the majority points out, another
player's breach of the rules of the game is an inherent risk that sports organizations have no duty to
prevent. Therefore, in order to be negligent, the sports organization must do something more than
facilitate an inherent risk in the game. Plaintiff alleges no facts to show how the organizational
defendants' actions caused Strevell and Zimmerman to act with reckless disregard for Benjamin's
safety, and thus there is no factual link in the complaint between the organizational defendants' actions
and Strevell's and Zimmerman's willful and wanton conduct that would support a claim of negligence
on the part of the organizational defendants. Consequently, in my view, the trial court correctly
dismissed counts II, IV, and VI of plaintiff's second amended complaint.
For similar reasons, the trial court also correctly dismissed count VIII of plaintiff's third
amended complaint, in which he alleged that the AHAI and the IHOA engaged in a civil conspiracy.
Although I agree with the majority that plaintiff has alleged that the AHAI and the IHOA made an
agreement, I do not agree that plaintiff alleged facts showing that the AHAI and the IHOA made
their agreement for the purpose of accomplishing an unlawful act or a lawful act by unlawful means,
or that the AHAI and the IHOA committed a tortious act in furtherance of that agreement.
The majority concludes that plaintiff has successfully alleged that the AHAI and the IHOAs'
agreement not to enforce the rule had an unlawful purpose, because plaintiff has successfully alleged
that the IHOA's failure to enforce the rule was negligent. Initially, I question whether an agreement
to commit a negligent act satisfies the requirement that a defendant knowingly and voluntarily
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participate in a common scheme to accomplish an unlawful purpose or a lawful purpose by unlawful
means (Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 64 (1994)).
"Since one cannot agree, expressly or tacitly, to commit a wrong about which he or
she has no knowledge, in order for civil conspiracy to arise, the parties must be aware of harm
or wrongful conduct at beginning of combination or agreement. Thus, civil conspiracy is an
intentional tort requiring a specific intent to accomplish the contemplated wrong and, because
negligence is, by definition, not an intentional wrong, the parties cannot engage in civil
conspiracy to be negligent." 16 Am Jur. 2d Conspiracy §51 (1998).
See also Lenahan v. University of Chicago, 348 Ill. App. 3d 155, 165 (2004).
However, even assuming that plaintiff could show that agreeing to commit a negligent act
satisfies the requirement that co-conspirators knowingly participated in a common scheme to commit
an unlawful act, plaintiff has not alleged a tortious act in furtherance of the scheme. First, plaintiff
never alleges that, following the agreement with the AHAI, the IHOA carried out the agreement by
failing to enforce the rule against checking from behind in any AHAI games. However, even liberally
inferring from the complaint that as a result of the agreement the IHOA failed to enforce the rule, as
discussed above I do not agree that plaintiff alleged facts to show that the IHOA's failure to enforce
the rule was negligent
Because we have concluded that a sports
organization does not breach its duty to a player when its conduct causes an injury that occurs as a
result of another player breaking the rules, but only when it causes harm resulting from another
player's willful and wanton conduct, an organization's failure to enforce the rules, in itself, does not
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constitute negligence on the part of the organization. Plaintiff has failed to allege facts to connect
the IHOA's failure to enforce the rule with Strevell's and Zimmerman's willful and wanton conduct,
and thus has not alleged negligent conduct on the part of the IHOA. Therefore, plaintiff has not
alleged a tortious act in furtherance of the alleged agreement and has not pleaded all the elements of
civil conspiracy. As a result, I believe that plaintiff's claim of civil conspiracy was properly dismissed.
For the foregoing reasons, I respectfully dissent from the judgment of the majority reversing
the trial court's dismissal of counts II, IV, and VI of plaintiff's second amended complaint and count
VIII of plaintiff's third amended complaint.
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