Benjamin Feld, Larry Feld, And Judith Feld Vs. Luke Borkowski , 790 N.W.2d 72 ( 2010 )

IN THE SUPREME COURT OF IOWA
No. 07–1333
Filed October 22, 2010
BENJAMIN FELD, LARRY FELD, and JUDITH FELD,
Appellants,
vs.
LUKE BORKOWSKI,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Carroll County, Dale E. Ruigh,
Judge.
Plaintiffs appeal from summary judgment entered by the district court
in an action by one participant in a softball practice against a coparticipant
for injuries sustained when struck by a bat. DECISION OF COURT OF
APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED; CASE
REMANDED FOR TRIAL.
Gregory J. Siemann of Green, Siemann & Greteman, P.L.C., Carroll,
and Dan Connell of Dan Connell, P.C., Storm Lake, for appellants.
Joel T.S. Greer of Cartwright, Druker & Ryden, Marshalltown, for
appellee.
2
CADY, Justice.
This appeal arises from an action by a participant in a softball practice
against a coparticipant for head injuries suffered from a flying bat when the
defendant released his bat while hitting a pitched ball. We primarily
consider the application of the contact-sports exception and the sufficiency
of evidence to support a finding of recklessness. The district court granted
summary judgment for the defendant. We transferred the case to the court
of appeals, who affirmed the decision of the district court. We granted
further review. On our review, we vacate the decision of the court of appeals,
reverse the decision of the district court, and remand for trial.
I. Background Facts and Prior Proceedings.
Benjamin Feld and Luke Borkowski were teammates on an intramural
slow-pitch sixteen-inch softball team, composed of male high school
students, during the summer of 2005. Feld and Borkowski were experienced
players, having played various levels of the game throughout their
childhoods. The team assembled to play games against other teams and to
practice among themselves. Practice primarily consisted of batting practice,
which allowed each player the opportunity to swing at approximately twenty
pitches before the next player rotated into the batter’s position. The team
members who were not batting or pitching played various field positions,
except catcher, and attempted to catch or retrieve the balls.
During a batting practice on June 2, 2005, Feld was playing first base
while Borkowski batted. Home plate and first base were sixty feet apart, the
customary arrangement in slow-pitch softball. Borkowski, a right-handed
hitter, swung at pitch after pitch using an aluminum bat. He was known as
a strong hitter. After about a dozen pitches, Borkowski hit a high fly ball
into foul territory on the third base side of the field. A split second after the
bat made contact with the ball, it left Borkowski’s hands. Most of the team
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watched the fly ball sail over the head of the third baseman as the bat,
almost simultaneously, flew directly down the first baseline, in a horizontal
helicopter motion, toward Feld. Borkowski yelled Feld’s nickname in an
effort to warn him of the flying bat. The warning was ineffective, and the bat
struck Feld in the forehead. Feld suffered a severe injury to his left eye.
Feld and his parents filed a negligence action against Borkowski. The
lawsuit sought damages for medical expenses and other associated damages.
Borkowski denied the claims of negligence in his answer to the petition and
asserted assumption of the risk as an affirmative defense. He also claimed
softball was a contact sport, and no liability could be imposed because his
conduct was not reckless. Following discovery, Borkowski moved for
summary judgment on the grounds liability was limited under the contact-
sports exception and the facts of the incident failed to generate a jury
question that his conduct was reckless.
In resistance to the motion for summary judgment, the Felds first
argued that softball is not a contact sport, as a matter of law, and therefore
did not qualify for the exception to the rule of negligence. In the alternative,
the Felds claimed Borkowski’s actions in releasing the bat constituted
reckless conduct. In support of this argument, the Felds presented expert
testimony from Ed Servais, head baseball coach at Creighton University.
Servais is an experienced college coach and a former baseball player. He
testified he had never seen a right-handed batter hit a ball left of third base
and lose control of a bat by releasing it in the direction of first base.
Further, Servais testified the only way a right-handed batter could hit a first
baseman with a bat in such a manner is if the batter “followed through and
rotated around after striking the foul ball and deliberately threw the bat or
let go of the bat in such a way that it was flung with considerable force
through the air towards the first base position.” Thus, the Felds claimed,
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even if the contact-sports exception to negligence applied, an issue of
material fact existed as to whether Borkowski acted recklessly or
intentionally in losing control of his bat.
The parties disputed the manner in which the bat left Borkowski’s
hands after he hit the pitch. Borkowski maintained the bat slipped from his
sweaty hands on the hot June day, he did not rotate his body completely
around before releasing the bat, and he did not intentionally throw the bat
towards first base. Members of the team, including Borkowski, referred to
the incident as “a freak accident.”
Following a hearing, the district court granted Borkowski’s motion for
summary judgment. The court found softball qualified as a contact sport
because it is an “athletic activit[y] which involve[s] the general risk of
physical injury to the participants,” and liability could only be based on
reckless or intentional conduct. The court concluded Borkowski’s actions
were not outside the normal course of playing softball because any
misconduct would have occurred while swinging at a pitch during softball
practice. Although the court recognized Feld may not have accepted the risk
of being struck by a bat at first base, it concluded the risks were not specific
to the type of injury he received, but instead included all inherent dangers in
the normal course of playing softball. The district court also found the
contact-sports exception barred the claim against Borkowski because the
Felds failed to allege in their petition that Borkowski’s conduct was reckless
or deliberate.
The Felds filed an appeal from the district court’s order granting
summary judgment. They claimed the district court erred in finding softball
to be a contact sport. Additionally, they claimed the summary judgment
facts generated a jury question on whether the conduct of Borkowski was
reckless. Finally, they claimed the contact-sports exception was inapplicable
5
to the particular circumstances of this case because those circumstances
showed Feld did not accept the risk of the particular injury he sustained. In
the end, the Felds believed the case should be tried under a negligence
standard, yet based solely on the argument that softball was not a contact
sport.
We transferred the case to the court of appeals. The court of appeals
affirmed the district court, concluding physical contact is generally inherent
in the game of softball and there was no conclusive evidence of recklessness
sufficient to present an issue of material fact for a fact finder. The Felds
sought, and we granted, further review.
II. Standard of Review.
We review a district court’s ruling on a motion for summary judgment
for correction of errors at law. Sweeney v. City of Bettendorf, 762 N.W.2d
873, 877 (Iowa 2009). Summary judgment is appropriate when the moving
party proves no genuine issue of material fact exists on the record. Berte v.
Bode, 692 N.W.2d 368, 370 (Iowa 2005). If reasonable minds can differ on
how a material fact issue should be resolved, summary judgment should not
be granted. Hills Bank & Trust Co. v. Converse, 772 N.W.2d 764, 771 (Iowa
2009). We make every legitimate inference that can be reasonably deduced
from the evidence in favor of the nonmoving party. Id.
III. Analysis.
A. Contact-Sports Exception. As a general rule, our law recognizes
that every person owes a duty to exercise reasonable care to avoid causing
injuries to others. Thompson v. Kaczinski, 774 N.W.2d 829, 834 (Iowa 2009);
Restatement (Third) of Torts: Liability for Physical and Emotional Harm
§ 7(a), at 77 (2010) [hereinafter Restatement (Third)]. A breach of this duty
will subject the actor to liability if the injury caused by the actor’s conduct
resulted from the risks that made the actor’s conduct negligent.
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Restatement (Third) § 6, at 67; Thompson, 774 N.W.2d at 839. In most all
cases involving physical harm, we have adopted the view that a duty of
reasonable care exists, and it is for the fact finder to consider the specific
facts and circumstances to determine if the actor breached the duty.
Thompson, 774 N.W.2d at 834–35.
While the duty to exercise reasonable care accompanies each
individual in most all activities of life, some activities or circumstances have
been excepted from the reasonable-care duty in favor of the imposition of a
less stringent duty of care for participants in the activity to protect others
from injury. See id. (recognizing occasions when countervailing principles
and policies justify displacement or modification of the general duty to
exercise reasonable care). One such activity that has been identified as an
exception is contact sports. Prior to our decision in Thompson to follow the
analytical framework of the Restatement (Third) of Torts for claims of
negligence involving physical harm, we followed other states in excepting
participants in contact sports from constraining their actions under the
conventional duty to act as a reasonable person. See Leonard ex rel. Meyer
v. Behrens, 601 N.W.2d 76, 81 (Iowa 1999). 1 In finding the game of paintball
1The Restatement (Third) provides the general duty to exercise reasonable care may
be modified or displaced “when an articulated countervailing principle or policy” justifies a
special rule of liability. Restatement (Third) § 7, at 77. Although we adopted the contact-
sports exception prior to Thompson, our decision in Leonard fits within a special rule for
liability in the sports context found in the Restatement (Third) of Torts. See Leonard, 601
N.W.2d at 79–80 (striking a balance between competing interests, including the need to
preserve “vigorous and active participation in contact sports without fear of liability for
merely negligent bodily contact,” and the need to diminish public-policy concerns over the
flood of litigation that would result under a negligence standard against the interest in
protecting those who participate in those events). Thus, Leonard followed the Thompson
framework, and our adoption of the Restatement (Third) in Thompson did not undermine our
prior adoption of the contact-sports exception in Leonard. In fact, the Restatement (Third)
specifically recognizes that the contact-sports exception is an example of a recognized
exception to the reasonable-care standard under its approach. Restatement (Third) § 7 cmt.
a, at 78. Importantly, the Restatement (Third) does not focus on how courts should identify
occasions when a different duty replaces the reasonable-care standard. Instead, it
expresses the notion that a reasonable-care duty applies in each case unless a special duty,
7
to be a contact sport in Leonard, we imposed a duty for participants in the
sport to merely refrain from reckless or intentional conduct. Id. at 81 (“We
therefore hold that paintball is a contact sport for which a participant’s
liability is determined under a recklessness standard.”); see also Pfister v.
Shusta, 657 N.E.2d 1013, 1013 (Ill. 1995) (holding contact-sports exception
imposes “the duty to refrain from willful and wanton or intentional
misconduct”); Restatement (Third) § 7 cmt. a, at 78 (recognizing “some
courts have modified the general duty of reasonable care for those engaging
in competitive sports to a more limited duty to refrain from recklessly
dangerous conduct”). This standard recognizes that known risks associated
with a contact sport are assumed by participants in the sport, and it is
inapposite to the competitiveness of contact sports to impose a duty on
participants to protect coparticipants from such known and accepted risks
through the exercise of reasonable care. 2 See Leonard, 601 N.W.2d at 79 &
n.3 (noting assumption of the risk in its primary sense is a defense to
negligence). The standard also recognizes that athletes who step onto the
playing field to compete are not completely free from legal responsibility for
their conduct that creates a risk of injury, but are restrained under a
substantially lower duty of care. See Nabozny v. Barnhill, 334 N.E.2d 258,
260–61 (Ill. App. Ct. 1975).
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like the contact-sports exception, is specifically recognized. Id. § 7, at 77. The Restatement
(Third) primarily sought to eliminate specific arguments that no duty of care exists under a
particular set of circumstances. Id. § 7 cmt. a, at 77.
2The assumption-of-the-risk underpinning of the contact-sports exception does not
mean that a participant in a contact sport is barred from recovery due to his own
contributory negligence. The assumption-of-the-risk doctrine, in that respect, has been
abolished in Iowa. See Coker v. Abell-Howe Co., 491 N.W.2d 143, 148 (Iowa 1992). Rather,
assumption of the risk in this context merely reflects the evolution of the policy basis for
this modified duty rule. This rule does not bar plaintiffs in contact sports from recovery
altogether, but instead recognizes that the various risks associated with contact sports
justify a modified duty of care.
8
In examining the extent or scope of the contact-sports exception, we
recognize a sport involving contact between participants or contact with
instruments or objects used by participants provides knowledge and
understanding to the participants of the inherent risks of harm that can be
created. This applies not only by the conduct that occurs within the rules
and objectives of the sport, but also by conduct from participants who fail to
properly execute an activity contemplated by the sport. See Leonard, 601
N.W.2d at 79 (recognizing that participants in athletic events voluntarily
endure “risks normally associated with the activity”). As we observed in
Leonard, the violation of a sport’s rules creates a risk of injury to
participants that would not necessarily exist without the infraction, such as
when players run into punters in football, midfielders are high-sticked in
lacrosse, basketball players are fouled, batters are hit by pitched balls in
baseball, and hockey players are tripped. Id. at 80. Yet, such contact is
nevertheless inherent in each game because no participant can play the
game error free. Thus, players accept risks of harm inherent in a sport both
derived from activities that are executed as contemplated by the sport and
activities that are improperly executed. For example, a base runner in
softball can be struck and injured by a ball hit by a batter or can be struck
and injured by a wild throw from a fielder. In both instances, the risk of
harm from contact is inherent in the game, even though the batter is
credited with a hit and the fielder is charged with an error. These known
risks, under the contact-sports exception, support a duty of care less
stringent than reasonable care.
In contrast, conduct by participants done with reckless disregard for
the safety of others or with an intent to harm others beyond the rules and
objectives of the sport creates risks that are not inherent in the sport. See
id. at 79–80. Such risks do not inhere in the sport because conduct
9
involving recklessness or intent to harm presents risks substantially greater
than risks of negligent conduct. See Restatement (Second) of Torts § 500, at
587 (1965) [hereinafter Restatement (Second)] (risk involved in reckless
conduct is “substantially greater” than risk involved in negligent conduct). 3
For example, the risk of harm to a base runner in softball is much greater
when a fielder throws a ball intended to hit the base runner than when a
fielder throws a ball to another fielder, intending for the other fielder to
complete the play by tagging or forcing the base runner out, but instead
misfires and hits the runner with the ball. Thus, the recklessness standard
captures conduct that imposes risks of harm to participants that are not a
normal part of the sport. See Leonard, 601 N.W.2d at 79–80 (“[I]njuries
inflicted intentionally or as the result of reckless disregard for safety are not
assumed.”).
The parties to this case do not challenge the viability of the contact-
sports exception in Iowa, but only challenge its application to the sport of
softball. Our obligation on appeal is to decide the case within the framework
of the issues raised by the parties. Worthington v. Kenkel, 684 N.W.2d 228,
234 (Iowa 2004). Consequently, we do no more and no less. 4
3The American Law Institute published a revised definition of “recklessness” in its
most current Restatement. Restatement (Third) § 2, at 16–17. The drafters acknowledge
that the current standard of recklessness is “somewhat more restrictive” than the
Restatement (Second) standard. Id. cmt. c, at 19. Primarily, the standard provided in the
Restatement (Third) differs from the Restatement (Second) by focusing on the obviousness of
the danger presented by the conduct. Id. We do not address the issue of adopting the
substance of the Restatement (Third) standard for recklessness in this case.
4We recognize our obligation to construe the law in resolving legal issues presented
on appeal independent of any construction advocated by the parties. The arguments of the
parties do not constrain us in our obligation to search for and apply controlling law to
resolve legal issues. See Rants v. Vilsack, 684 N.W.2d 193, 211–12 (Iowa 2004) (applying
controlling law to reach a result not advocated by either party). However, in the absence of
the most cogent circumstances, we do not create issues or unnecessarily overturn existing
law sua sponte when the parties have not advocated for such a change. See, e.g., Pierce v.
Pierce, 287 N.W.2d 879, 882 (Iowa 1980) (recognizing subject matter jurisdiction issues will
be considered sua sponte because an appeal pursuant to improper jurisdiction is contrary
to governing rules of procedure); Sisson v. Janssen, 244 Iowa 123, 130–31, 56 N.W.2d 30,
10
The threshold inquiry is whether the activity or sport engaged in by
the parties was an activity or game covered by the contact-sports exception.
This analysis does not focus on whether the participants were engaged in a
formally organized or coached sport, but instead centers on whether the
activity inherently involves the risk of injurious contact to participants. See
Leonard, 601 N.W.2d at 80–81 (applying the recklessness standard to an
informal game of paintball and rejecting formality and organization as
threshold qualifications). Not all sports inherently involve contact capable of
injury. Yet, even the description of a particular sport as a contact sport can
vary depending upon the purpose for which a sport is classified as a contact
activity. See 34 C.F.R. § 106.41(b) (2009) (defining contact sports for
purposes of gender discrimination on school sports teams and excluding
softball as a contact sport). Notwithstanding, the purpose of deciding
whether an activity is a contact sport is to determine if the risk of harm of
injurious contact was known and understood as a part of the sport. If the
risk of injury is a part of the sport, then the participants must only refrain
from reckless or intentional conduct causing injury.
B. Softball as a Contact Sport. With this background in mind, we
turn to answer the issue presented by the arguments of the parties. In the
sport of softball, the risk of injury to participants includes the risk of contact
between a participant and a bat swung by a batter, as well as other risks of
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34 (1952) (noting the issue of “unclean hands” may be raised sua sponte by the court, even
though no party advocates it due to the strong public interest in equitable proceedings). See
also Varnum v. Brien, 763 N.W.2d 862, 884 n.9 (Iowa 2009) (questioning sua sponte the
viability of the threshold test used to dispose of equal protection claims, but refusing to
abandon the test until parties in a future case could present the full arguments since the
plaintiffs nevertheless satisfied the threshold test and suffered no prejudice by its
application). In this case, we are restrained to apply the controlling law as advocated by the
parties, and we do not consider or forecast whether or not that controlling law should be
abandoned or changed in favor of a duty of reasonable care or modified by a standard
staking out some middle ground.
11
contact from other actions by participants that are part of the game. Batting
and swinging a bat are normal and expected activities of the game, and
participants familiar with the sport know and understand that a risk of
harm is presented to other participants by the activity. In particular, a bat
can be released from the hands of a batter during a swing. This scenario
presents a risk of harm from injurious contact between the bat and other
participants on or around the playing field.
Nevertheless, the Felds argue that liability should not be limited to
recklessness or intentional conduct by generally labeling a sport as a contact
sport. Instead, they argue the particular contact involved in causing the
injury in each case must be analyzed to determine if the specific incident
involved contact that should have been anticipated. The Felds assert this
analysis is consistent with the underlying assumption-of-the-risk premise of
the contact-sports exception. Thus, they argue softball may be a contact
sport for a player like a catcher, but not for an individual playing first base
when a right-handed hitter hits a ball left of the third baseline. More
specifically, the Felds argue no first baseman could have anticipated harm
from a bat under the circumstances of the case.
In Leonard, we examined the nature, objectives, rules, and traditions
of the particular sport or game to determine if paintball was a contact sport
so as to exempt participants from liability for injury to coparticipants
predicated on negligence. 601 N.W.2d at 81. We did not dissect the game to
determine if certain parts should be subjected to the exception, but looked at
the game itself. This approach is consistent with the purpose of maintaining
the desired spirited competition in sports; the law cannot expect competitors
in a contact sport to play under multiple standards of care, just as it cannot
expect competitors in a contact sport to apply standards of reasonableness
12
when engaged in conduct that only presents a risk of harm inherent in the
sport.
Thus, we conclude softball for purposes of tort liability is a contact
sport, and this conclusion is sufficient to transform liability for an injury
sustained by a participant while engaged in the sport from a standard of
negligence to a standard of recklessness. Clearly, batting is normal activity
in the sport of softball and creates a risk of harm to participants in a
number of ways, including a risk that the bat will be released during the
swing in some way and will become an instrument of harm to participants in
some way. Other jurisdictions that have examined liability in the context of
softball have similarly concluded that softball presents inherent risks that
qualify the sport for the recklessness standard. See, e.g., Landrum v.
Gonzalez, 629 N.E.2d 710, 715 (Ill. App. Ct. 1994); Picou v. Hartford Ins. Co.,
558 So. 2d 787, 790 (La. Ct. App. 1990); Crawn v. Campo, 643 A.2d 600,
608 (N.J. 1994); O’Neill v. Daniels, 523 N.Y.S.2d 264, 264–65 (N.Y. App. Div.
1987). As such, the contact-sports exception applies in this case, and
Borkowski can only be liable for the injurious contact with Feld if his actions
were intentional or reckless.
C. Reckless Conduct. The district court concluded the Felds failed
to claim in their petition that Borkowski was reckless, and the undisputed
facts presented in the course of the summary judgment proceedings did not
support a finding of recklessness as a matter of law. It found Feld accepted
the risk of harm presented by a batter who negligently released a bat from
his hands while swinging at a pitch, even though it would be unforeseeable
that a first baseman would be in the zone of danger for contact with a bat by
a right-handed hitter who had swung and hit the pitch with the bat.
We commence our review of this portion of the district court decision
by recognizing that our inquiry is to determine whether the Felds presented
13
facts sufficient to support a jury question on the issue of whether
Borkowski’s actions in releasing the bat during the swing was reckless. We
begin by noting it is not fatal to the Felds’ lawsuit that he only asserted a
claim for negligence in his petition rather than asserting a claim for both
negligence and recklessness. Borkowski raised the contact-sports exception
as a defense. The contact-sports exception was also the basis for
Borkowski’s motion for summary judgment, and the Felds resisted the
summary judgment by arguing Borkowski’s conduct amounted to
recklessness. The Felds’ resistance to the motion for summary judgment
placed the issue of recklessness squarely in play, predicated on the
understanding that it supported an actionable claim for liability based on
recklessness. 5 See Rieff v. Evans, 630 N.W.2d 278, 292 (Iowa 2001) (“[W]e
do not require a petition to allege a specific legal theory.”); see also Smith v.
Smith, 513 N.W.2d 728, 730 (Iowa 1994) (“A petition gives ‘fair notice’ if it
informs the defendant of the incident giving rise to the claim and of the
claim’s general nature.”). Thus, the question is whether the Felds produced
sufficient evidence of recklessness to withstand summary judgment.
We find the affidavit from Ed Servais, the long-time baseball coach,
supported a jury question on recklessness. The facts are undisputed that
Borkowski swung at a pitch and struck the bottom portion of the softball
with the bat. The contact between the bat and ball resulted in a high foul
ball outside the third baseline. The path of the ball after it was hit revealed
5The contact-sports exception is not an affirmative defense to a claim for negligence
so as to require the defendant to plead and prove the defense. It is a doctrine that limits
liability by modifying the standard of care. Leonard, 601 N.W.2d at 81. Once an activity is
determined to be a contact sport, a plaintiff must plead and prove a claim for recklessness.
See 57A Am. Jur. 2d Negligence § 274, at 339 (2004) (“Once an actor’s conduct is
determined to be reckless, his or her liability for harm resulting from that behavior is
determined by the same rules that determine the liability of a negligent actor; to state a
claim upon which relief may be granted, the plaintiff must still prove facts demonstrating
the existence of the basic elements of duty, breach, proximate cause, and damages.”).
14
Borkowski swung too early to hit the pitch into the playing field. Up to the
point of the bat’s contact with the pitch, nothing occurred out of the ordinary
to support a claim of recklessness. However, Borkowski’s actions that
followed during the split second after he struck the ball were far from
normal. In his experience as a player and coach, Servais had never seen or
even heard of a first baseman being hit by a bat released from the hands of a
right-handed hitter who had hit the pitched ball to the left side of the third
baseline. Moreover, Servais attempted to duplicate such an occurrence
without success, which led him to the conclusion that Borkowski must have
deliberately released the bat in a very abnormal, contorted act of
recklessness.
Importantly, the affidavit of Servais supports a reasonable conclusion
that Borkowski did not continue to swing the bat in a normal manner after
he hit the ball. The rare abnormality of the bat’s flight pattern after the ball
was struck at least supports an inference of recklessness. An act performed
by a participant in a sport that produces a radically different result from the
normal and expected result of the act, even when performed negligently,
gives rise to an inference that the result was purposeful.
A party resisting summary judgment is entitled to “every legitimate
inference that can reasonably be deduced from the evidence.” Cent. Nat’l
Ins. Co. v. Ins. Co. of N. Am., 522 N.W.2d 39, 42 (Iowa 1994). Here, the
Servais affidavit gives rise to a reasonable inference of recklessness.
Considering all the facts presented in the summary judgment proceedings, a
jury could conclude Borkowski, knowing he had swung ahead of the pitch
and that his body was out of position to make solid contact with the ball,
continued his swing in a very unorthodox manner and released the bat in
momentary frustration and anger. This inference is sufficient to support a
jury question on recklessness. See Leonard, 601 N.W.2d at 80 (“[I]n order to
15
prove recklessness as the basis for a duty, a plaintiff must show that the
actor has intentionally done an act of an unreasonable character in
disregard of a known risk or a risk so obvious that the actor must be taken
to have been aware of it and so great as to make it highly probable that harm
would follow.”); accord Restatement (Second) § 500, at 587.
IV. Conclusion.
We conclude the district court erred in granting summary judgment.
We vacate the decision of the court of appeals, reverse the judgment of the
district court, and remand for further proceedings.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT REVERSED; CASE REMANDED FOR TRIAL.
All justices concur except Wiggins, J., who concurs specially, and
Appel, J., who concurs specially with Wiggins, J., joining divisions I and
III(A) and Hecht, J., joining in its entirety.
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#07–1333, Feld v. Borkowski
WIGGINS, Justice (concurring specially).
I concur in the result by joining in divisions I and III(A) of Justice
Appel’s special concurrence. The majority opinion clings to the contact-
sports exception on the grounds neither party urges its abandonment. As
Justice Appel rightly points out in division I of his special concurrence, the
question of the continued viability of the contact-sports exception is clearly
before us. Moreover, we cannot let the parties’ narrow framing of an issue
preclude us from applying the proper analysis to an issue. In past cases
where the parties did not raise the applicability of the Restatement (Third) of
Torts: Liability for Physical and Emotional Harm, we have applied the
Restatement (Third) when necessary to properly analyze the issues before the
court. Brokaw v. Winfield-Mt. Union Cmty. Sch. Dist., 788 N.W.2d 386, 391
(Iowa 2010); Royal Indem. Co. v. Factory Mut. Ins. Co., 786 N.W.2d 839, 849
(Iowa 2010); Van Fossen v. MidAmerican Energy Co., 777 N.W.2d 689, 696–
98 (Iowa 2009); Thompson v. Kaczinski, 774 N.W.2d 829, 834–40 (Iowa
2009).
The procedural posture of this case makes it even more important for
us to address the issue under the Restatement (Third). The majority opinion
reverses the district court’s order granting Borkowski’s motion for summary
judgment and remands the case for a trial on the merits. We have recently
adopted section seven of the Restatement (Third) as the proper duty analysis
in a negligence case. Thompson, 774 N.W.2d at 834–36. Therefore, the duty
analysis under section seven of the Restatement (Third) is the controlling law
on remand. The Restatement (Third) leaves the question open as to whether
the court should instruct on a more limited duty when competitive sports are
involved. Restatement (Third) of Torts: Liability for Physical and Emotional
Harm § 7 cmt. a, at 77–78 (2010). The majority does not reach this issue,
17
finding the parties failed to preserve and raise it. As I previously noted, I
disagree and say we should reach this issue now.
By not reaching this issue, the majority leaves the district court and
the parties with a terrible dilemma. The court has an obligation to cover all
the legal principles involved in a case when it instructs the jury. Greninger
v. City of Des Moines, 264 N.W.2d 615, 617 (Iowa 1978). Accordingly, the
court must consider section seven of the Restatement (Third) when it writes
its instructions. The Felds will probably urge the court to hold the contact-
sports exception does not have a sound foundation in today’s sports world
and that it has no viability under a Restatement (Third) analysis. Therefore,
they will urge the court to instruct the jury as it would in any other
negligence action. On the other hand, Borkowski will probably urge the
court to keep the contact-sports exception and request the court to instruct
the jury using a recklessness standard. At that time, the district court will
have to decide if the contact-sports exception is still viable under a
Restatement (Third) analysis. No matter how the court rules, we will
probably see another appeal where we must decide if the contact-sports
exception is still viable under a Restatement (Third) analysis.
In writing this concurrence, I feel compelled to ask the majority a
couple of questions. Why should we leave the question unanswered when
the district court will be confronted with it on remand? Why are we creating
a potential appeal on this issue under the Restatement (Third) when we can
answer the question now? It seems to me, for us not to address the issue
creates extra expense for the parties and the court. Accordingly, I would
address the issue head on and give the contact-sports exception a proper
burial.
18
#07–1333, Feld v. Borkowski
APPEL, Justice (concurring in part and dissenting in part).
This case raises two substantive issues. The first substantive issue is
whether there is a special limited-duty rule for contact sports under Iowa law
that applies to the game of softball. If so, a second question arises, namely,
whether the contact-sports exception should prevent liability based on
negligence under the facts and circumstances of this case.
For the reasons stated below, I would reject application of the contact-
sports exception to softball. In the alternative, I would hold that there is a
factual question regarding whether the conduct in this case was outside the
scope of the ordinary risks of softball and, therefore, subject to liability
based on negligence.
I. Matters Properly Before the Court.
In the proceedings below, the plaintiff framed the argument narrowly
as to whether the game of softball falls within the contact-sports exception.
In making this argument, the plaintiff clearly and indisputably has
maintained the case should be tried as an ordinary negligence claim. The
plaintiff, however, did not argue that the contact-sports exception should be
eliminated altogether. The question thus arises whether it is proper for the
court to address the larger question in this appeal.
The question of when an issue not argued by the parties should be
decided by the court involves a number of considerations. Although
sometimes discussed in a conclusory fashion as involving “issue
preservation” or “waiver,” the field is, in fact, considerably more nuanced.
On the one hand, the judicial process is normally driven by the
parties. They bring their cases to the court and ask the court to decide the
issues they present. Judges are not advocates who reach out to decide
questions the parties themselves either deem unimportant or, for whatever
19
reasons, fail to raise. The job of the court is to decide concrete cases the
parties bring to it.
On the other hand, judges should not allow the parties’ framing of the
issues to usurp the judicial function. The courts, and not the parties, are
responsible for the coherent development of law. This is particularly true
when courts are performing their common law function. A judicially-driven
decision may produce a more accurate statement of law. Amanda Frost, The
Limits of Advocacy, 59 Duke L.J. 447, 452 (2009) [hereinafter Frost]. The
courts are not some kind of private arbitration service working for the parties
and no one else. Id. at 474.
It is the tension between these two roles of deciding cases and
developing the law that must be resolved in this case when we consider
whether to address the ongoing validity of the contact-sports exception when
the parties have declined to expressly address it in their briefs. See
generally Chad M. Oldfather, Defining Judicial Inactivism: Models of
Adjudication and the Duty to Decide, 94 Geo. L.J. 121, 164–75 (2005)
(discussing the scope of a court’s adjudicative duty).
The United States Supreme Court has addressed this kind of question
by distinguishing between a claim and an argument. As noted by Sarah
Cravens, the Supreme Court has made it clear that once a claim is properly
presented, a party is not limited to arguments presented below. Sarah M. R.
Cravens, Involved Appellate Judging, 88 Marq. L. Rev. 251, 259 (2004)
[hereinafter Cravens]; see also Lebron v. Nat’l R.R. Passenger Corp., 513 U.S.
374, 378–83, 115 S. Ct. 961, 965–66, 130 L. Ed. 2d 902, 909–13 (1995).
Further, the Court has emphasized that it “is not limited to the particular
legal theories advanced by the parties, but rather retains the independent
power to identify and apply the proper construction of governing law.”
Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99, 111 S. Ct. 1711, 1718,
20
114 L. Ed. 2d 152, 166 (1991). Whether to exercise this independent power
is said to be a question of prudence. U.S. Nat’l Bank of Or. v. Indep. Ins.
Agents of Am., Inc., 508 U.S. 439, 446–47, 113 S. Ct. 2173, 2178, 124 L. Ed.
2d 402, 412–13 (1993).
The Supreme Court has been willing to employ this flexible,
discretionary approach to determining whether it should decide an issue not
argued by the parties in several important cases. For example, in Erie
Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938),
the United States Supreme Court overruled Swift v. Tyson, 41 U.S. 1, 10 L.
Ed. 865 (1842), even though neither party argued that it should be
overturned. Frost, 59 Duke L.J. at 450. In Washington v. Davis, 426 U.S.
229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976), the Supreme Court held that
the constitution prohibited only intentional discrimination although both
parties indicated that it barred disparate racial impact. Id. In Dickerson v.
United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000), the
Supreme Court considered the question of whether a statute governing the
admission of confessions displaced Miranda even though the question was
not raised by the parties. Id.
The leading commentator on Supreme Court practice has stated that
the decision to confront a question not raised by the petition for certiorari
“ ‘is not circumscribed by any particular formula’ ” and “ ‘reflects the Court’s
discretionary authority to dispose of cases in what it determines to be the
most sensible and reasonable way.’ ” Id. at 463 (quoting Robert L. Stern et
al., Supreme Court Practice 346 (7th ed. 1993)). While the Supreme Court
has stated that it “ordinarily” does not consider questions outside the
certiorari petition, the practice is “prudential,” not jurisdictional. See Yee v.
City of Escondido, 503 U.S. 519, 535, 112 S. Ct. 1522, 1532–33, 118 L. Ed.
2d 153, 170 (1992); Blonder-Tongue Labs. v. Univ. of Ill. Found., 402 U.S.
21
313, 320 n.6, 91 S. Ct. 1434, 1439 n.6, 28 L. Ed. 2d 788, 794–95 n.6 (1971)
(stating that the rule “does not limit our power to decide important questions
not raised by the parties.”). On occasion, the Supreme Court orders
supplemental briefing by the parties or amici. Cravens, 88 Marq. L. Rev. at
268.
High courts in other states have, from time to time, been willing to
consider arguments not raised by the parties. Every law student studies the
famous case of MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916). In
that case, the plaintiff sought to sue an automobile manufacturer for an
allegedly defective vehicle. MacPherson, 111 N.E. at 1051. Under existing
law, however, the doctrine of privity barred the plaintiff from bringing a claim
against the manufacturer, with whom the plaintiff had no direct contact,
unless the plaintiff could show that the automobile was “inherently
dangerous.” Id. As a result, the plaintiff argued that an automobile was
“inherently dangerous.” Id.
Justice Cardozo did not address the narrow argument made by the
plaintiff. Instead, after canvassing the applicable law, Cardozo held that the
larger doctrine which required privity of contract for a purchaser to bring a
claim against a manufacturer was no longer good law. Id. at 1053.
According to Cardozo, “We have put aside the notion that the duty to
safeguard life and limb, when the consequence of negligence may be
foreseen, grows out of contract and nothing else.” Id.
Although Iowa courts are not governed by the “case or controversy”
restrictions in Article III of the United States Constitution, we have held that
a plaintiff may not raise a new theory of liability after trial. See, e.g., Field v.
Palmer, 592 N.W.2d 347, 351 n.1 (Iowa 1999); Shill v. Careage Corp., 353
N.W.2d 416, 420 (Iowa 1984); Gosha v. Woller, 288 N.W.2d 329, 331 (Iowa
1980). Our cases, however, are generally not inconsistent with the approach
22
of the United States Supreme Court distinguishing between a claim, which
must be raised below and argued in briefs on appeal, and an argument in
support of a preserved claim.
Indeed, we have been willing to relax ordinary rules of issue
preservation based on notions of judicial economy and efficiency. For
example, we may decide evidentiary questions not presented to the district
court where we reverse a decision of the district court but the record reveals
an alternate ground for admission of the evidence. DeVoss v. State, 648
N.W.2d 56, 60–63 (Iowa 2002).
We have also stated that we will address issues that are “incident” to a
determination of other issues properly presented. Presbytery of Se. Iowa v.
Harris, 226 N.W.2d 232, 234 (Iowa 1975). In this case, it seems to me, the
issues here are so intertwined—namely, whether the contact-sports
exception should be embraced and whether a contact-sports exception
should apply in softball, that there is no insurmountable obstacle to our
consideration of the larger issue.
In summary, we are not confronted with a case where the issue—
whether the plaintiff may proceed with a cause of action based on
negligence—was not raised or ruled upon by the district court. The case
thus does not fall within the hardcore area where arguments on appeal
should rarely, if ever, be entertained. Nor is this a case where the factual
record developed below is inadequate, thereby preventing meaningful
appellate review.
On the other hand, there are some good reasons to consider the larger
question. This case is a classic example of intertwined issues. It is one
thing to decline to address an issue not raised where orderly development of
the law is not affected, but it is quite another thing to refuse to consider the
23
policy underpinnings of a doctrine while at the same time extending it into
new and uncharted territory.
Because the parties chose to present only the narrow argument that
the contact-sports exception should not be extended to softball, the majority
sees itself as locked into the contact-sports doctrine and has no choice but
to extend it outside the context previously established by Iowa case law even
though there is a substantial question regarding its ongoing validity. I
regard this approach as ceding the court’s fundamental authority to develop
the law to the parties. See Frost, 59 Duke L.J. at 472 (arguing that litigants
should not wrest away from courts the interpretation of law). Yet, while
refusing to consider the validity of the underlying doctrine, the court at the
same time considers the question of whether the contact-sports doctrine is
consistent with the Restatement (Third) of Torts: Liability for Physical and
Emotional Harm, an issue that, like the question of the continued validity of
the contact-sports exception, was not briefed by the parties.
Further, because public policy is at the heart of the contact-sports
exception, this case presents the kind of dispute that even Professor
Eisenberg, who generally endorses the adversary or participatory model of
adjudication, believes justifies the relaxation of the ordinary rules. See
generally Melvin Aron Eisenberg, Participation, Responsiveness, and the
Consultative Process: An Essay for Lon Fuller, 92 Harv. L. Rev. 410 (1978).
Indeed, under the Restatement (Third) of Torts, the contact-sports exception,
as a special rule to ordinary negligence, can only be adopted if there are
compelling public policies in support of the special rule. Further, in
common law cases, courts must make decisions on grounds of policy
because of their implications for future cases. Craven, 88 Marq. L. Rev. at
255.
24
In any event, if there is a reluctance to address the broader question
because of the failure of the parties to make this argument, we should order
the parties to file supplemental briefs to address the issue rather than
render an opinion based on what may prove to be a fatally flawed premise.
There is no reason not to order supplemental briefs in order to ensure that
this court “gets it right” now rather than wait for an additional case to come
along. Supplemental briefing would also promote fairness to the parties by
ensuring that they have an opportunity to weigh in on the larger issue. See
Adam A. Milani & Michael R. Smith, Playing God: A Critical Look at Sua
Sponte Decisions by Appellate Courts, 69 Tenn. L. Rev. 245, 287 (2002)
(advocating that when courts use discretion to decide issues not raised by
parties, supplemental briefing should be requested to avoid abuse of
discretion).
I would have ordered the parties to present supplemental briefing on
the larger issues presented in this case. Since such briefing has not been
ordered, the case must be decided as is in a less than optimum posture.
Nonetheless, I am convinced that there is ample reason not to extend the
contact-sports exception to this case for the reasons expressed below.
Before discussing my views on the merits, it is important to note what
this case means. The continued validity of the contact-sports exception and
its viability and scope under the Restatement (Third) of Torts are not
addressed by a majority of the members of the court and therefore remain
open questions. The court may have reached a result on this appeal, but it
has left the law in this area murky and uncertain.
II. The Contact-Sports Exception.
A. Development of the Contact-Sports Exception. Prior to 1975,
plaintiffs were generally allowed to recover in sports injury cases based on a
showing of ordinary negligence. See Crawn v. Campo, 630 A.2d 368, 370–71
25
(N.J. Super. Ct. App. Div. 1993). The first noteworthy case to depart from
the traditional application of negligence law to sports-injury cases was the
Illinois case of Nabozny v. Barnhill, 334 N.E.2d 258 (Ill. App. Ct. 1975). In
Nabozny, the court introduced an innovation into the law, namely, that the
ordinary rules of negligence do not generally apply in the context of contact
sports, including soccer. Nabozny, 334 N.E.2d at 260–61. Instead, sports
injuries are only actionable if they are the result of reckless or intentional
conduct. Id. The Nabozny court offered several policy reasons for this
deviation. The court cited the need “to control a new field of personal injury
litigation.” Id. at 261. The Nabozny court also asserted “that the law should
not place unreasonable burdens on the free and vigorous participation in
sports by our youth.” Id. at 260.
Since Nabozny, the question of whether to alter the application of
traditional negligence in sports-injury cases has not been decided in many
jurisdictions. See generally Matthew G. Cole, No Blood No Foul: The
Standard of Care in Texas Owed by Participants to One Another in Athletic
Contests, 59 Baylor L. Rev. 435, 443–57 (2007) (cataloguing status of the
contact-sports exception in all fifty states). In those that have, a majority of
courts have departed from traditional precedents and developed a common
law innovation that has been labeled as the “contact-sports exception” to
ordinary rules of tort liability. See, e.g., Knight v. Jewett, 834 P.2d 696, 711
(Cal. 1992); Jaworski v. Kiernan, 696 A.2d 332, 337 (Conn. 1997); Pfister v.
Shusta, 657 N.E.2d 1013, 1017–18 (Ill. 1995).
The courts adopting the contact-sports exception have often cited the
policy concerns of Nabozny, namely, that immunity for negligent conduct is
essential to ensure vigorous competition and to impede the filing of lawsuits
over sports injuries. Knight, 834 P.2d at 710; Jaworski, 696 A.2d at 337;
Pfister, 657 N.E.2d at 1018. Further, the cases suggest that application of
26
the ordinary standard of care could alter the way in which the game is
played and require integral parts of sports to be abandoned. Knight, 834
P.2d at 710.
The doctrine employed to avoid these untoward consequences is
usually assumption of risk. It is claimed the normal expectations of
participants in contact sports include the potential for injuries, participants
assume the risk of injuries, and therefore there should be no negligence
liability for such injuries. See Jaworski, 696 A.2d at 336–37; Pfister, 657
N.E.2d at 1017–18.
While most courts that have considered the matter have adopted the
contact-sports exception, a minority have rejected it. A leading minority case
is Lestina v. West Bend Mutual Insurance Co., 501 N.W.2d 28 (Wis. 1993),
superseded by statute, Wis. Stat. § 895.525(4m) (1995), as recognized in
Noffke ex rel. Swenson v. Bakke, 748 N.W.2d 195 (Wis. Ct. App. 2008). In
Lestina, the Wisconsin Supreme Court considered whether to apply an
ordinary negligence standard in an action arising out of injuries suffered in a
soccer game. Lestina, 501 N.W.2d at 29. In rejecting the contact-sports
exception, the Lestina court emphasized that the proponents of the contact-
sports exception failed to realize negligence is a flexible standard that is
adaptable to a wide range of conduct. Id. at 33. According to the Lestina
court:
The very fact that an injury is sustained during the course
of a game in which the participants voluntarily engaged and in
which the likelihood of bodily contact and injury could
reasonably be foreseen materially affects the manner in which
each player’s conduct is to be evaluated under the negligence
standard.
Id. As a result, the Lestina court found that the negligence doctrine was
sufficiently flexible to permit “vigorous competition” and to give adequate
27
consideration to other factors cited in support of the contact-sports
exception. Id.
The New Hampshire Supreme Court in Allen v. Dover Co-Recreational
Softball League, 807 A.2d 1274 (N.H. 2002), came to a similar conclusion. In
Allen, the court considered whether the plaintiff could recover under a
negligence theory for injuries resulting from an errantly thrown softball.
Allen, 807 A.2d at 1283. Citing Lestina, the court rejected the reckless
standard of the contact-sports exception. Id. at 1284. The court noted that
in ordinary negligence cases, “a participant . . . ‘who creates only risks that
are normal or ordinary to the sport acts as a reasonable person of ordinary
prudence under the circumstances.’ ” Id. at 1284 (quoting Crawn, 630 A.2d
at 373). A participant acts in an unreasonable manner only when the
participant increases or creates a risk outside the range of risks that flow
from participation in the sport. Id. at 1285.
Another case that rejects the contact-sports exception is Auckenthaler
v. Grundmeyer, 877 P.2d 1039 (Nev. 1994). In this case, the Nevada
Supreme Court considered whether a horse rider could bring a negligence
claim to recover for injuries sustained from a kick from another rider’s horse.
Auckenthaler, 877 P.2d at 1040. As in Lestina, the Auckenthaler court
emphasized the flexibility of the negligence standard. Id. at 1043. The court
also, however, noted that the contact-sports exception was “merely another
way of recognizing implied assumption of risk through the back door or by
way of duty/risk principles.” Id. at 1044. The Auckenthaler court noted that
Nevada’s comparative fault statute abolished assumption of risk and left no
room for the special rule. Id. Finally, the Auckenthaler court observed that
the claims regarding the flood of litigation and the chilling effect upon
participation in recreational activities “seem overstated.” Id. The court
 28
found very few cases where plaintiffs had recovered based upon ordinary
negligence in sporting contexts. Id.
B. Application of the Contact-Sports Exception to Softball. There
are several cases that consider whether softball should be considered a
contact sport for the purposes of any exception to ordinary negligence law.
In the majority of cases, courts have held that softball was a contact sport,
albeit in highly conclusory language. See Blancher v. Metro. Dade County,
436 So. 2d 1077, 1079 (Fla. Dist. Ct. App. 1983); Landrum v. Gonzalez, 629
N.E.2d 710, 714–15 (Ill. App. Ct. 1994). Softball, however, was not found to
be a contact sport in Cahill v. Carella, 648 A.2d 169 (Conn. Super. Ct. 1994).
In Cahill, the court noted that while some contact will occasionally and
accidentally occur in recreational softball games, softball is not a contact
sport. Cahill, 648 A.2d at 174.
C. Scope of the Contact-Sports Exception. Some of the cases
dealing with the contact-sports exception contain broad, unqualified
statements that recovery for injuries suffered in the course of contact sports
requires a showing of recklessness. However, in a number of cases that
have adopted the contact-sports exception, there have been some clearly
drawn limitations on the doctrine.
Limitations to the contact-sports exception finds support in a relatively
early case regarding assumption of risk. As stated by Chief Justice Cardozo,
a party who engages in a sporting activity “accepts the dangers that inhere
in it so far as they are obvious and necessary.” Murphy v. Steeplechase
Amusement Co., 166 N.E. 173, 174 (N.Y. 1929) (emphasis added). The
limitation of assumption of risk to “obvious and necessary” risks has been
carried forward in sports cases. For instance, in the frequently cited case of
Turcotte v. Fell, 502 N.E.2d 964 (N.Y. 1986), the court noted that the contact-
sport exception applies only to risks “that are known, apparent or reasonably
29
foreseeable.” Turcotte, 502 N.E.2d at 967. And, as the California Supreme
Court has repeatedly emphasized: “[D]efendants generally do not have a duty
to protect the plaintiff from the risks inherent in the sport, or to eliminate
risk from the sport . . . . [T]hey generally do have a duty [however] not to
increase the risk of harm beyond what is inherent in the sport.” Kahn v. E.
Side Union High Sch. Dist., 75 P.3d 30, 38 (Cal. 2003).
D. Developments in Tort Law Following Adoption of the Contact-
Sports Exception. Since the advent of the contact-sports exception, there
have been significant developments in tort law. One such development is the
adoption of the Restatement (Third) of Torts. The Restatement (Third) of
Torts provides that “[a]n actor ordinarily has a duty to exercise reasonable
care when the actor’s conduct creates a risk of physical harm.” Restatement
(Third) of Torts: Liab. for Physical and Emotional Harm § 7(a), at 77 (2010).
The Restatement (Third) of Torts, moreover, has an overarching philosophy,
namely, that the duty of care owed by one to another in matters involving
personal safety is ordinarily the generally-applicable negligence standard
and that the question of whether that generally-applicable standard has
been breached is a factual question for the jury. See id. at § 6 cmt. f, at 69,
§ 7 cmt. a, at 77–78. The Restatement (Third) of Torts eschews special
judge-made rules that apply in narrow situations as incoherent and
inconsistent with the overarching architecture of our modern tort law. See
also Yount v. Johnson, 915 P.2d 341, 342 (N.M. Ct. App. 1996) (noting the
law has “moved forcefully towards a public policy that defines duty under a
universal standard of ordinary care, a standard which holds all citizens
accountable for the reasonableness of their actions [and] away from
judicially declared immunity or protectionism, whether of a special class,
group, or activity”).
30
That said, section 7 of the Restatement (Third) of Torts does reserve
special duty rules for “exceptional cases.” Restatement (Third) of Torts: Liab.
for Physical and Emotional Harm § 7(b) (2010). Section 7(b) provides, “In
exceptional cases . . . a court may decide that the defendant has no duty or
that the ordinary duty of reasonable care requires modification.” Id. And,
while implied assumption of risk is disapproved in section 2 of the
Restatement (Third) of Torts: Apportionment of Liability, comment j
expressly declines to take a position on the application of limited duty in
sports cases. Restatement (Third) of Torts: Apportionment of Liability § 2,
cmts. i, j, at 21–22 (2000).
E. Iowa Case Law Regarding the Contact-Sports Exception. This
court in a per curiam opinion in Leonard ex rel. Meyer v. Behrens, 601
N.W.2d 76, 80–81 (Iowa 1999), embraced without discussion the contact-
sports exception in the context of a game of paintball. In Behrens, the very
purpose of the sport, paintball, involved shooting other participants with
projectiles. Behrens, 601 N.W.2d at 77–78. Because of the contact inherent
in the activity, the court determined that a special rule of liability requiring
recklessness was applicable. Id. at 80–81.
The court cited Dudley v. William Penn College, 219 N.W.2d 484 (Iowa
1974), in support. Behrens, 601 N.W.2d at 79. Dudley, however, involved a
failure to supervise claim against a coach and college brought by a player
who was hit by a foul ball while sitting in an unprotected dugout. Dudley,
219 N.W.2d at 486. In Dudley, the court affirmed a directed verdict for lack
of causal connection, noting, in passing, “Most injuries in athletic contests
result from the rough and tumble of the game itself.” Id. at 486.
Next, the Behrens court briefly cited but did not analyze sports cases.
Behrens, 601 N.W.2d at 79–81. It relied upon the language in Jaworski for
the twin propositions that if negligence were the standard in coparticipant-
31
athletic-injury cases, vigorous play would be affected and there would be a
flood of litigation. Id. at 80. And so, the social policies of promoting vigorous
competition and avoiding lawsuits in the sport of paintball demanded that,
as a matter of law, unreasonable conduct proximately causing serious eye
injuries was immune from liability. Id. at 81.
III. Application of Principles.
A. Analysis of the Underpinnings of the Contact-Sports
Exception. This court adopted the Restatement (Third) of Torts in
Thompson. Thompson v. Kaczinski, 774 N.W.2d 829, 835 (Iowa 2009). While
the Restatement (Third) of Torts applies a duty of care, it does allow for
specific public policy exceptions to the generally-applicable standard of care.
Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 7(b)
(2010). Generally speaking, the public policy supporting an exception must
be compelling. Id. Otherwise, our tort law will be a minefield of formalistic
and incoherent doctrine. Like the per curiam decision in Behrens, the
majority does not adequately discuss the policy basis for such an exception
for contact sports. I am fearful that under the approach of the majority, the
ground work has been laid for a series of judge-made exceptions, which if
unabated could create a hodgepodge of our tort law. As I see it, because of
the lack of strong policy reasons, the adoption of a reduced standard of care
in contact sports is simply another way of recognizing implied assumption of
risk through the back door of duty principles. Auckenthaler, 877 P.2d at
1044. The public policy rationale behind the contact-sports exception has
no sound basis for a number of reasons.
First, the contact-sports cases generally do not adequately take into
consideration the flexibility of negligence as a cause of action. In order for a
defendant to be found negligent, the defendant’s acts or omissions must be
found to be unreasonable under all the facts and circumstances of the
32
particular case. As emphasized in Lestina and Allen, a key fact and
circumstance of a sports-injury case is the competitive environment in which
it occurs. Allen, 807 A.2d at 1285; Lestina, 501 N.W.2d at 33. In applying
ordinary negligence standards, the fact that a defendant was engaged in a
competitive sport that involved direct physical contact would be a critical
and often an outcome-determining factor on the issue of negligence.
Conduct that would be a tort on Eighth and Main is perfectly acceptable on
the football field. Thus, even the sports cases applying the negligence
standard generally would be consistent with the observation in Dudley,
namely, that “[m]ost injuries in athletic contests result from the rough and
tumble of the game itself.” Dudley, 219 N.W.2d at 486.
As a result, sports injuries that occur in the ordinary course of a
contact sport would not give rise to negligence claims. As noted in Allen, it
would be part of the ordinary course of reasonable play for a player to throw
a ball in an errant direction in a softball game. Allen, 807 A.2d at 1286.
Such an act, absent aggravating factors that increase the ordinary risk of the
game, would not amount to negligence. Id.; see also McGee v. Bd. of Educ.,
226 N.Y.S.2d 329, 331–32 (App. Div. 1962) (“Players . . . must accept the
risks to which their roles expose them. Of course, this is not to say that
actionable negligence can never be committed on a playing field.
Considering the skill of the players, the rules and nature of the particular
game, and risks which normally attend it, a participant’s conduct may
amount to such careless disregard for the safety of others as to create risks
not fairly assumed.”). Only when a defendant acts unreasonably in light of
the goals and purposes of the game, including vigorous competition, would a
cause of action arise. See 4 Fowler V. Harper et al., The Law of Torts § 21.5,
at 239–40 & n.17 (2d ed. 1986) (criticizing the contact-sport exception on
33
ground that, properly understood, ordinary negligence provides the
appropriate framework for sports cases).
Second, the contact-sports exception does not adequately take into
consideration our comparative-fault framework. In Iowa, comparative fault
has abolished assumption of risk, one of the main underpinnings of the
contact-sports exception. Iowa Code § 668.1(1) (2005). The legislature has
not crafted an exception for contact sports. In many cases, assumption of
risk provides the analytical framework for special rules for sports
participants. In Iowa, a special duty rule cannot be fashioned based on this
type of assumption of risk. The majority seems to anticipate what the
legislature should have done, or perhaps will do, namely, craft an exception
to comparative fault, rather than rely upon what the current law provides.
Third, I question whether “the sky is falling” approach of the contact-
sports cases bears any reasonable relationship to reality. For example, in
Jaworski, the Connecticut Supreme Court declared:
If simple negligence were adopted as the standard of care, every
punter with whom contact is made, every midfielder high
sticked, every basketball player fouled, every batter struck by a
pitch, and every hockey player tripped would have the
ingredients for a lawsuit if injury resulted.
Jaworski, 696 A.2d at 338. Such quotable language has been cited slinky-
style in a string of case law that includes Behrens, but has no factual basis.
For example, prior to 1975, before the development of the contact-
sports exception, there is no evidence that sports competition was being
suppressed by negligence law. The players in the historic Army-Navy games,
or those who participated in state basketball tournaments in that golden era,
would be stunned to learn that the members of this court sitting in our
conference room thirty-five years later have concluded that their
participation in these events was less vigorous because of their concern
34
about the prevailing tort law. Furthermore, it would be preposterous to
believe that after the Lestina decision of the Wisconsin Supreme Court in
1993, Iowa athletic teams who traveled to Wisconsin for away games played
differently than they did at home, or in Wisconsin in the years prior to the
decision. Similarly, in jurisdictions like Nevada and Arizona, where sports
teams have achieved national prominence, there is no evidence that vigorous
competition has been impacted by appellate court decisions that have
explicitly rejected the contact-sports exception. Further, no one seriously
claims that athletic competition over recent decades is less vigorous in the
many states where there is no authority one way or the other on the contact-
sports exception.
After over four decades of experimentation with the special rule in
some states, no special rule in other states, and uncertainty in many states,
one would think the states as laboratories of democracy would have
produced some evidence to support the speculation of courts regarding
“vigorous competition.” The lack of evidence over this prolonged period of
time is a powerful indicator that the vigorous competition policy rationale of
the contact-sports exception has no basis in fact.
In any event, one might wonder, in today’s world, whether vigorous
competition needs the “breathing room” provided by a recklessness
standard. As noted in one leading sports law text, “the evidence is
accumulating that, on every level of competition, participants need to be
restrained and not emboldened.” See Ray Yasser et al., Sports Law: Cases
and Materials 720 (4th ed. 2000). To the extent tort rules would affect
behavior in the context of athletics, the elimination of the contact-sports
exception would promote a sense of restraint, a sense that the game has to
be played within the rules, a sense of respect for the bodily integrity and
person of the opposing player. There is a word that encompasses these
35
traits—sportsmanship. I am old-fashioned enough to want our tort system
to give this traditional value contemporary life.
Fourth, the bogeyman of an “avalanche of lawsuits,” that reliable and
hoary chestnut that is relied upon whenever there is potential liability, has
no more validity in the sports context than in most contexts in which it is
applied. The majority of cases upon which it relies cite no evidence of an
avalanche of lawsuits in states that have rejected or have not yet embraced
the contact-sports exception. Indeed, in Iowa, there was no reported case
involving coparticipants in sports until the court considered the exotic sport
of paintball in Behrens in 1999. In short, not one case involving
coparticipants in football, basketball, baseball, softball, or soccer came to
this court for resolution prior to 1999. There was no threatened “avalanche
of litigation” in Iowa, then or since.
Indeed, the leading case with the inflated rhetoric about the potential
“avalanche of litigation” comes from the Connecticut Supreme Court in
Jaworski. Mark M. Rembish, Liability for Personal Injuries Sustained in
Sporting Events After Jaworski v. Kiernan, 18 Quinnipiac L. Rev. 307, 337–
38 (1998). Yet in the fifty-five-year period from 1941, when the Connecticut
Supreme Court held that negligence was the standard in sports cases, until
1997, when Jaworski announced its contact-sports exception, the reported
cases in Connecticut involving coparticipants in sports cases amounted to
the grand total of two! Id. at 338.
In any event, even if there were a semblance of reality to the myth of a
litigation avalanche, adoption of the contact-sports exception is just as likely
to increase litigation as it is to diminish it. Here is the argument: advocates
of the contact-sports exception believe that it will encourage robust and
vigorous play; the more robust and vigorous the play, the more injuries are
likely to occur; and the more injuries that occur, the more litigation results.
36
See Thomas F. Miller, Torts and Sports: Has Michigan Joined the Wrong Team
with Ritchie-Gamester, 48 Wayne L. Rev. 113, 131 (2002). I do not claim to
have empirical evidence to support this line of reasoning, but it is just as
likely to be correct as any opposite conclusion.
I further question the underlying premise of the “avalanche of
litigation” theory. First, it reaches too far. If the “avalanche of litigation”
theory were a driving principle of tort law, it would have more application in
the world of airplanes and automobiles than competitive sports. Second, it
is just wrong. The tort system exists to compensate persons who are injured
by the unreasonable conduct of others.
It may be, I suppose, that there is an unarticulated reason behind the
“avalanche of litigation” theory, namely, a mistrust of juries to do the right
thing. Yet, we trust juries to do the fact finding in complicated matters
ranging from medical malpractice to business tort cases. If juries can
handle these types of cases, they can surely be trusted with cases arising
from competitive sports injuries.
Fifth, assuming that the application of ordinary negligence would have
some mild deterrent effect on play and produce a few additional lawsuits,
this would not be an untoward development. The cases that embrace the
contact-sports exception generally note that there must be a balance
between the interests of promoting vigorous participation in sports and the
safety of participants. See Ross v. Clouser, 637 S.W.2d 11, 14 (Mo. 1982).
In the last three or four decades, there is one empirical fact that the majority
ignores and no knowledgeable person challenges—there has been an
epidemic of sports injuries among children. See Griffin Toronjo Pivateau,
Tackling the Competitive Sports Doctrine: A New Proposal for Sports Injuries in
Texas, 9 Tex. Rev. Ent. & Sports L. 85, 88 nn.8–9 (2007) (citing statistics
from the U.S. Consumer Products Safety Commission and the National
37
Center for Injury Prevention and Control showing substantial increase in
sports injuries in recent years).
The increase in injuries in contact sports has had a number of adverse
effects. For those injured due to unreasonable conduct, the adverse effects
are self-evident. Further, however, the increasingly dangerous nature of
competitive sports has tendencies to deter participation by those who might
be willing to play but who do not wish to be exposed to the risk of injuries
from unreasonable conduct. For those who wish to promote broadly the
values of athletics across the culture, the contact-sports exception may be
self-defeating. If it is true that application of the negligence doctrine would
modestly deter unreasonable conduct, the time has come to tip the balance
in the direction of safety and potentially broader participation.
For the above reasons, I question whether the contact-sports exception
has a sound foundation in fact or law in today’s sports world.
B. Softball as a Contact Sport. Because of my concerns regarding
the validity of the contact-sports exception generally, I have no interest in
seeing it expanded outside the limited context of Behrens, which emphasizes
that the very purpose of the sport is to strike an opposing player. Behrens,
601 N.W.2d at 77–78. As a result, I would conclude that softball is outside
the scope of Behrens and is not a contact sport for purposes of the rule. The
primary purpose of softball does not involve clashing bodies like that of
football or rugby. There is no doubt that, on relatively rare occasions, a
participant in a softball game may be injured by an errant throw of a ball or
a bat. Hitting participants with balls and bats, however, is not the purpose
of the sport. There is, of course, incidental contact, but there is occasional
incidental contact in golf (thrown clubs and misdirected shots), ping-pong
(flying mallets and spinning balls to the eye), and the racing of toads
(participants bumping into one another as they urge their champions to
38
victory). There are ordinarily no immunities for injuries arising from these
types of incidental contact, and I would not apply them to the game of
softball.
Aside from my policy concerns, I also have technical concerns with
developing some kind of imprecise and irrelevant category of “contact” vs.
“noncontact” sport. It is a meaningless exercise. This is the kind of
pointless labeling that we recently rejected in Koenig. See generally Koenig v.
Koenig, 766 N.W.2d 635, 643–45 (Iowa 2009) (abolishing the distinction
between invitees and licensees in premises liability). Instead of some kind of
grand categorization of sports, the better approach, even if one were to
embrace the immunity rule sought by the majority, is not to divide sports
into categories, but instead look at the fundamental nature of any
competitive sport and determine whether the injury was the result of an
inherent risk of the game, i.e., a risk that is part and parcel of the activity
and necessary if the game is to be played at all. If the answer is yes, then a
special duty rule might apply. If the answer is no, then ordinary negligence
applies.
It makes no sense at all to adopt the blunt and imprecise
categorization approach that has the potential of being both overbroad and
underinclusive. I, of course, doubt that the court would be willing to extend
the contact-sports exception to sports like golf, table tennis, and the racing
of toads, but this is an argument against the rule in the first place.
Further, not all “softball” is the same. An informal game of softball
involving children and adults may operate by one set of rules and generate
gentle expectations, while a highly competitive game involving adults played
for high stakes may involve more risk of physical contact. In this case, there
is no elaboration in the record other than the game was a slow-pitch softball
game involving seventeen year olds playing in an organized league. These
39
facts alone, in my view, are not sufficient to declare that this softball game
was a “contact sport.”
In any event, if forced to make a choice in a bipolar world, I would
conclude that softball is not a contact sport. Unlike football or paintball, for
example, the very purpose of the game does not involve the collision of
bodies or projectiles. I do not believe the nature of the game of softball will
be dramatically changed by a rule imposing liability for negligence under all
the facts and circumstances. I would, therefore, not apply any special
immunity to the game.
C. Scope of the Contact-Sports Exception. Even if the court
decides to embrace the contact-sports exception and even if softball is
declared by verbal bludgeon to be a contact sport, it is clear even from the
case law upon which the majority relies that this is not the end of the
matter. The immunities of any special rule that the majority adopts plainly
do not extend to every occasion when a participant is injured.
In my view, under the better-reasoned contact-sports cases, a person
who commits acts or omissions that create risks that are outside the
ordinary risks inherent in a game are subject to liability sounding in
negligence. Such acts or omissions “increase the risk of harm beyond what
is inherent in the sport.” Kahn, 75 P.3d at 38. The proper standard of
liability in these situations is ordinary negligence, not recklessness. See Phi
Delta Theta Co. v. Moore, 10 S.W.3d 658, 662–63 (Tex. 1999) (Enoch, J.,
dissenting).
Here, the plaintiff is entitled to assert that the throwing of the bat by
this right-handed hitter behind his back all the way down to the first
baseman with its resultant injuries was not an inherent and inevitable part
of the game but was outside the risks associated with the activity. An expert
testified that in thirty years of coaching softball, he had never seen this kind
40
of incident. As a result, there is a factual question regarding whether the
acts of the defendant fell outside the scope of the contact-sports exception
and therefore triable as an ordinary negligence action.
IV. Conclusion.
In light of the underlying weakness in the contact-sports rationale, I
would not permit it to drift outside its moorings. As a result, I would not
extend the contact-sports exception to an amateur game of softball. At a
minimum, whether the contact-sports exception applies involves a careful
consideration of the facts and circumstances.
Even assuming the contact-sports exception applies to the game
involved in this case, the rule does not immunize negligent conduct that is
outside the inherent risk of the activity. In this case, at a minimum, the
plaintiff is entitled to argue that the conduct involved—the throwing of a bat
by a right-handed batter who twirls around and throws the bat with
sufficient force to strike the first baseman, what was indisputably an
extraordinary and unheard of event—presents a danger that was outside the
inherent risk of the game and, as a result, subjects the actor to liability
based on ordinary negligence.
Wiggins, J., joins divisions I and III(A) of this special concurrence and
Hecht, J., joins this special concurrence in its entirety.