Bevolo, Thomas v. Carter, Alan ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4220
THOMAS BEVOLO,
Plaintiff-Appellant,
v.
ALAN CARTER,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 03 C 447—William D. Stiehl, Judge.
____________
ARGUED JANUARY 4, 2006—DECIDED APRIL 20, 2006
____________
Before CUDAHY, RIPPLE, and KANNE, Circuit Judges.
KANNE, Circuit Judge. In this diversity action, Thomas
Bevolo filed suit against Alan Carter for personal injuries
he sustained during a demonstration at a martial arts
banquet. The district court ordered stricken the affidavit of
Bevolo’s expert, as the expert had not been disclosed prior
to the appropriate deadline. Thereafter, it granted sum-
mary judgment for Carter. Belovo appeals both decisions.
For the reasons set forth below, we affirm.
I. BACKGROUND
On October 23, 2003, Bevolo and his family attended a
martial arts banquet for the Christian Kajukenbo Ministry.
Bevolo, an Illinois resident, was a student of Kajukenbo, a
2 No. 04-4220
Hawaiian form of martial arts. Bevolo had been studying
various forms of martial arts for five years; he had been
studying Kajukenbo since January 2002. At the banquet,
Bevolo was to be promoted to an orange belt. He was
wearing his Gi, a black uniform worn by martial arts
practitioners. Bevolo’s class warmed up and sparred during
the first thirty minutes of the banquet. During this time,
while other classmates sparred with each other, Bevolo
warmed up solo. The warm-up and sparring session was
followed by a promotions ceremony and “[d]inner,
[f]ellowship, and [p]hotos.”
One of the “very special guests” from Missouri (and
featured speaker) that evening was Professor Carter, a
Kajukenbo expert and an 8th degree black belt. Evidently,
Carter has the rare ability to “move people with his mind.”
After dinner, Bevolo was introduced to Carter and asked
Carter to demonstrate this uncanny skill. With a group of
onlookers (including Bevolo’s own family) present and
with cameras in hand, Carter began his demonstration. The
demonstration, however, included the use of Carter’s well-
trained hands as well as his well-trained mind. The mood
in the air was light, and Carter demonstrated various
pressure points on Bevolo, including pulling his hair and
touching his arms. During the demonstration, Carter was
talking with the crowd while Bevolo’s family took pictures.
After performing several maneuvers, including two that put
Bevolo on the ground, Carter hit him in the neck. Carter did
not intend to injure him, but serious damage was done with
that one blow. None of the previous blows or maneuvers had
caused any injury.
One of the stated goals of Kajukenbo is that, “[w]hen
attacked, a student’s instincts will take over and the body
will react to the situation, diffusing it without hesitation.”
Unfortunately for Bevolo, his body did not react to Carter’s
demonstration, nor did it make any attempt to diffuse the
situation. As the old saying goes, “[i]t’s all fun and games
No. 04-4220 3
until someone loses an eye,” or in this case, until someone
injures his neck and has to have a cadaver bone and a
titanium plate surgically inserted.1
II. ANALYSIS
A. Expert Witness Disclosure
The court ordered that Bevolo’s expert witness disclo-
sure be filed on or before November 15, 2003. The dep-
ositions of any of his experts were to be completed by
December 15, 2003. The court also set a discovery deadline
for both parties of March 25, 2004. On June 2, 2004,
pursuant to the parties’ joint motion, the court extended the
discovery deadline to August 8, 2004. In that order, the
court spoke only of the discovery deadline and the dead-
line for filing dispositive motions. There was no mention
of an extension of the expert witness disclosure deadline,
nor was there any mention of an extension of the deadline
for the taking of depositions of Bevolo’s expert witnesses.
At no time did Bevolo complain that the court did not
extend the expert witness disclosure deadline. In fact,
Bevolo did not specifically request an extension of this
deadline at any time. The court and Carter only caught
wind of the existence of Bevolo’s expert when Bevolo filed
the expert’s affidavit on September 21, 2004, which was
attached to his response to Carter’s summary judgment
motion. This was much too late, said the district court, and
the affidavit was ordered stricken. Bevolo now complains to
us this was an abuse of discretion. We are not at all sympa-
thetic to Bevolo’s argument because the expert was not
1
We are not surprised to learn Bevolo incurred more than
$75,000 in damages.
4 No. 04-4220
“disclosed”2 until some ten months after the appropriate
deadline, and over a month after the close of discovery.
Despite the timeline described above, Bevolo argues he
only missed the deadline by five days. He argues the
deadline was September 16, 2004, and since he never
received the court’s order extending the deadline to this
date, he was justified in missing the hidden deadline by
only a few days. He then relies on a district court case from
New York to argue the expert’s testimony should have been
admitted. The entire argument on this point is misplaced,
however.
On November 23, 2004, the district court granted sum-
mary judgment for Carter and ordered stricken the expert’s
affidavit. The order contains an error and a typo. The court
mistakenly stated Carter had argued to the court that the
expert witness disclosure was due by September 16, 2004.
This is the statement Bevolo now relies on to argue the
deadline was September 16, 2004. However, the underlying
motion filed by Carter stated, “In addition, on or about
September 16, 2003 [not 2004] the plaintiff filed his Rule
26(a)(1) Initial Disclosures and did not identify [the ex-
pert].” The district court simply mischaracterized the
argument Carter had made to the court. Bevolo cannot rely
on the mischaracterization to claim now that the deadline
had somehow been moved without his knowledge. The error
and typo in the district court’s order granting summary
judgment and striking the affidavit do not change the fact
that the deadline for filing the expert witness disclosure
was November 15, 2003. Moreover, Bevolo suffers no prej-
udice by way of the court’s mistake because he did not know
of it.
2
We hesitate to use the word “disclosed” to describe Bevolo’s
actions. It would be more apt to say Bevolo sprung the existence
of the expert on the defense at the last minute.
No. 04-4220 5
Bevolo also argues he did not know he would need an
expert until he read Carter’s motion for summary judgment.
To make such an argument shows a lack of understanding
of the discovery process as well as the purpose of Federal
Rule of Civil Procedure 26(a), which provides for the
disclosure of expert witnesses to the opposing side in a
timely fashion. There is no question Bevolo was not timely
in this case; therefore, it was not an abuse of discretion for
the district court to think so too.
B. Contact Sports Exception to Negligence
We review a district court’s grant of summary judg-
ment de novo. Isbell v. Allstate Ins. Co., 418 F.3d 788, 793
(7th Cir. 2005) (citation omitted). Summary judgment is
appropriate if “ ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to
a judgment as a matter of law.’ ” Id. (quoting Fed. R. Civ. P.
56(c)); Ezell v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005)
(citation omitted); see Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). As a federal court sitting in diversity, we
apply state law “to resolve substantive questions and
federal law to resolve procedural and evidentiary issues.”
Colip v. Clare, 26 F.3d 712, 714 (7th Cir. 1994) (citation
omitted); see 28 U.S.C. § 1332. The parties agree Illinois law
applies to the substantive questions in this case.
Illinois courts have established the “contact sports excep-
tion” to negligence. Under this exception, voluntary partici-
pants in contact sports may be held liable for injuries to co-
participants caused by wilful and wanton or intentional
misconduct, but they are not liable for injuries caused by
ordinary negligence. Nabozny v. Barnhill, 334 N.E.2d 258,
260-61 (Ill. App. Ct. 1975); Oswald v. Twp. High Sch. Dist.
No. 214, 406 N.E.2d 157, 159-60 (Ill. App. Ct. 1980). “[A]
6 No. 04-4220
player is liable for injury in a tort action if his conduct is
such that it is either deliberate, wilful or with a reckless
disregard for the safety of the other player so as to cause
injury to that player . . . .” Nabozny, 334 N.E.2d at 261. The
parties agree the exception has been expanded to include
unorganized, informal, and spontaneous sports activities.
See Pfister v. Shusta, 657 N.E.2d 1013, 1014-15, 1018 (Ill.
App. Ct. 1995) (applying exception to spontaneous game of
kick-the-can in college dormitory); Landrun v. Gonzalez,
629 N.E.2d 710, 715 (Ill. App. Ct. 1994) (applying exception
to informal company softball game).
Bevolo contends he did not expect, nor would a reasonable
person expect, any physical contact when inquiring about
Carter’s ability to move people with his mind. Perhaps this
may be true if the circumstances involved a magic show or
some telekinetic demonstration. But that is not what we
have here. The situation arose during a martial arts event.
Bevolo had been coming to this same location for some time
to engage in martial arts training, where physical contact
with other participants was the norm. Carter was a master
and instructor in the martial arts, a role that Bevolo and all
the other attendees were aware. The entire evening was
organized for the members of this particular group. The
attendees were actually engaged in martial arts training
that night, warming up, sparring with each other, and
discussing Carter’s role as master. A reasonable person
would have understood in this context that the particular
form of martial art being taught, including moving people
with their minds, inherently involved physical contact. See
Landrum, 629 N.E.2d at 714-15; cf. Rodrigo v. Koryo
Martial Arts, 122 Cal.Rptr.2d 832, 842 (Ct. App. 2002)
(explaining, in context of analogous provision of California
law, that “[i]nherent in participating in—and learn-
ing—[martial arts] is the risk of injury stemming from
being punched, kicked or otherwise contacted by a fellow
competitor or student,” which includes when a student is
No. 04-4220 7
injured when simply waiting in line and is kicked from
behind).
The way Bevolo tells the story, and his counsel demon-
strated at oral argument, Bevolo was just standing in front
of Carter, arms at his side with no defensive positioning,
when Carter basically attacked him. But this misrepresents
the record. Carter began to physically engage Bevolo.
According to Bevolo’s own testimony, he was forcibly taken
to the ground twice through a series of maneuvers before
the fateful blow to the neck was delivered. Tellingly, Bevolo
did not object at any time prior to that blow. He argues no
reasonable person would dare object to such a dangerous
and intimidating figure’s attacks. But we are unpersuaded.
Bevolo did not yell “Stop it!” or make any attempt to run
away or simply stay on the ground after he was (twice)
taken there. Nor did he otherwise make any attempt
whatsoever to stop the encounter. For example, he did not
look pleadingly at the onlookers, silently asking for someone
to help him. He did not yelp in pain. Even the spectators,
consisting of Bevolo’s own family, were laughing and taking
pictures throughout the demonstration. In the end, it is
Bevolo’s own deposition testimony that makes it crystal
clear he was a willing participant:
Q: What did you tell him, if anything, when he was
[performing the demonstration]?
A: I was going along with it. You know, we were having
fun. And I thought this was at the end of this, or maybe
somewhere in there it would be the mind moving thing.
(emphasis added).
Bevolo’s own deposition testimony shows he had a
complete understanding of the situation as well as his
role as a willing participant. Therefore, the district court
was correct to conclude the contact sports exception to
negligence applied to this situation, and Carter could only
8 No. 04-4220
be liable for Bevolo’s injuries if Carter’s behavior amounted
to wilful and wanton misconduct.
Bevolo next argues Carter’s conduct was reckless, thereby
making Carter liable for his injuries. As we alluded to
earlier, Carter can only be liable if his conduct was “either
deliberate, wilful or with a reckless disregard” for Bevolo’s
safety. See Nabozny, 334 N.E.2d at 260-61; Pfister, 657
N.E.2d at 1016 (defining wilful and wanton as action that
demonstrates actual or deliberate intent to harm or shows
an utter indifference or conscious disregard for someone’s
safety). Surprisingly, Bevolo’s argument is unburdened by
any case law citations or legal analysis. What little argu-
ment there is on the subject focuses solely on Carter’s
alleged recklessness. In effect, Bevolo has waived any
argument concerning whether Carter’s actions were deliber-
ate. In fact, Bevolo conceded as much at oral argument
when he stated Carter’s acts were not intentional.
As to recklessness, once again, Bevolo’s own testimony
is dispositive. The mood was light, the parties were talking,
and all outward appearances reflected that everyone was
having an enjoyable time during the demonstration. Bevolo
explained, “We were in a real good mood. He was talking
with like my sister-in-law, my wife. And, you know, it was
just demonstrating a personality. There wasn’t any over-
tones of evil or anything.” As for the actual blow that caused
the injury, Bevolo stated, “And I don’t think he hit me with
any seriousness about hurting me; just that was one of
those places where it’s sensitive.” There is simply no
evidence Carter was behaving recklessly; he was performing
a martial arts demonstration with a willing participant, as
he had done numerous times before. This type of physical
contact is inherent in martial arts training, and there is no
evidence Carter evinced an utter indifference to or conscious
disregard for Bevolo’s safety.
No. 04-4220 9
III. CONCLUSION
For the reasons set forth above, the decisions of the
district court are AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-20-06