Karas v. Strevell ( 2008 )

Docket Nos. 104123, 104133 cons.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
ROBERT KARAS, Appellee, v. JOSEPH STREVELL et al.,
Appellants.
Opinion filed February 22, 2008.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman,
and Karmeier concurred in the judgment and opinion.
Justice Kilbride specially concurred, with opinion.
OPINION
Plaintiff, Robert Karas, filed a complaint on behalf of his minor
son, Benjamin Karas, alleging that Benjamin was injured while playing
in an organized ice hockey game when he was bodychecked from
behind by two opposing players. The complaint alleged that the
opposing players’ conduct was willful and wanton, and further alleged
that the opposing players’ team, the governing association of the
officials who refereed the game, and the amateur hockey league to
which the opposing teams belonged, had both negligently, and
willfully and wantonly, caused the injury. In addition, the complaint
alleged a civil conspiracy between the hockey league and officials’
associations to forgo enforcing a rule against bodychecking players
from behind.
Both the player and organizational defendants filed motions to
dismiss pursuant to section 2–615 of the Code of Civil Procedure (735
ILCS 5/2–615 (West 2004)). The circuit court of Du Page County,
relying primarily on the contact sports exception adopted by this court
in Pfister v. Shusta, 167 Ill. 2d 417 (1995), dismissed plaintiff’s
complaint in its entirety.
On appeal, the appellate court reversed in part and affirmed in
part. 369 Ill. App. 3d 884. The court concluded that plaintiff had
successfully pled willful and wanton conduct on the part of the player
defendants, had successfully pled negligence on the part of the
organizational defendants, and had successfully pled a civil conspiracy.
However, the appellate court affirmed the circuit court’s dismissal of
plaintiff’s allegations of willful and wanton conduct against the
organizational defendants.
For the reasons that follow, we reverse that portion of the
appellate court judgment which allowed the claims of willful and
wanton conduct on the part of the player defendants, and negligence
and civil conspiracy on the part of the organizational defendants, to go
forward. We affirm that portion of the appellate court judgment which
dismissed the allegations of willful and wanton conduct against the
organizational defendants. We also remand the cause to the circuit
court with instructions.
BACKGROUND
The following facts are taken from plaintiff’s second amended
complaint. In January of 2004, Benjamin Karas was a member of the
Barrington High School Hockey Club’s junior varsity hockey team.
Russell Zimmerman and Joseph Strevell, the player defendants, were
members of a junior varsity hockey team run by defendant Naperville
Central Redhawk Hockey Association (Redhawk Hockey). Both
teams were members of a hockey league, defendant Amateur Hockey
Association Illinois, Inc. (the Hockey Association), and were
governed by hockey rules which the Hockey Association promulgated.
One of these rules was a prohibition against bodychecking players
from behind.
On January 25, 2004, the Barrington team played the Naperville
team in an organized ice hockey game. The game was refereed by
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officials with defendant Illinois Hockey Officials Association (the
Officials Association). On the back of each player’s jersey the word
“STOP,” had been sewn above or between the player’s number to
reinforce the rule against bodychecking players from behind.
According to plaintiff’s complaint, during the game, the player
defendants struck Benjamin “from behind on his back area causing his
head to strike the boards resulting in serious personal injury, including
neck and head injuries.”
On September 14, 2004, plaintiff filed an eight-count, second
amended complaint in the circuit court of Du Page County. Count I
of the complaint alleged that Benjamin’s injuries were caused by the
player defendants’ willful and wanton conduct. The complaint states:
“10. On January 25, 2004, the Unknown Defendants,
JOSEPH STREVELL and RUSSELL ZIMMERMAN,
showed willful and wanton disregard for the safety of the
Minor Plaintiff, BENJAMIN S. KARAS, in one or more of
the following ways:
a. Struck the Minor Plaintiff from behind when he was in
such a position that they knew or should have known of the
possibility of inflicting serious injury on him;
b. Struck the Minor Plaintiff from behind when he was in
close proximity to the boards [such] that they knew or should
have known of the possibility of inflicting serious injury on
him;
c. Struck the Minor Plaintiff from behind when he was in
such a position and close proximity to the boards that they
knew or should have known of the possibility of inflicting
serious injury on him;
d. ‘Back checked’[1] the Minor Plaintiff at a time when he
was partially bent over and looking down with his head
pointing towards the boards;
1
Plaintiff uses the term “back check” in his complaint when he evidently
means “body check from behind.” To “back-check” is “to skate back
towards one’s own goal covering the rushes of opposing players in a hockey
game.” Webster’s Third New International Dictionary 158 (1993). A “body
check,” on the other hand, is “a blocking of an opponent with the body in ice
hockey and lacrosse.” Webster’s Third New International Dictionary 246
(1993).
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e. Failed to refrain from ‘back checking’ the Minor
Plaintiff in violation of contest rules;
f. Were otherwise reckless.”
Counts II, IV, and VI of the second amended complaint alleged
negligence on the part of Redhawk Hockey, the Hockey Association,
and the Officials Association. Count II alleged that Redhawk Hockey
“failed to instruct its players” to refrain from bodychecking opposing
players from behind; “failed to discipline, sanction or otherwise
control its players” who were known to bodycheck from behind;
“promoted, encouraged or otherwise condoned its players” to
bodycheck from behind; and “failed to supervise the activities of its
players.”
Count IV of the second amended complaint alleged that the
Hockey Association “failed to instruct its authorized member teams
to refrain their players” from bodychecking from behind; “failed to
instruct [the Officials Association] to strictly enforce” the rule against
bodychecking from behind; “failed to discipline, sanction or otherwise
control” both Redhawk Hockey and the Officials Association;
“promoted, encouraged or otherwise condoned” bodychecking from
behind; and “failed to supervise” both Redhawk Hockey and the
Officials Association.
Count VI alleged that the Officials Association “failed to strictly
enforce” the rule against bodychecking from behind; “failed to
discipline, sanction or otherwise control its member officials regarding
their known failures to strictly enforce” the rule against bodychecking
from behind; “promoted, encouraged or otherwise condoned its
member officials to fail to strictly enforce” the rule against
bodychecking from behind; and “failed to supervise the activities of its
member officials.”
Counts III, V, and VII of plaintiff’s second amended complaint
repeated the allegations found in counts II, IV, and VI verbatim.
However, instead of alleging negligence, counts III, V, and VII
alleged, respectively, that Redhawk Hockey, the Hockey Association,
and the Officials Association “showed willful and wanton disregard
for the safety of” Benjamin Karas.
Finally, count VIII of plaintiff’s second amended complaint alleged
that there was a civil conspiracy between the Hockey Association and
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the Officials Association “not to enforce” the rule against
bodychecking from behind, and that this conspiracy caused Benjamin’s
injury.
The player and organizational defendants moved to dismiss
plaintiff’s second amended complaint pursuant to section 2–615 of the
Code of Civil Procedure (735 ILCS 5/2–615 (West 2004)). On March
14, 2005, the circuit court granted the motions filed by the player
defendants and dismissed count I of the second amended complaint.
On July 1, 2005, the circuit court dismissed the remaining counts
of the complaint. In a written order, the circuit court explained the
reasons for the dismissals, including the previous dismissal of count I.
With respect to count I, the court noted the rule, adopted by this court
in Pfister v. Shusta, 167 Ill. 2d 417 (1995), that a plaintiff who is
injured by a coparticipant while engaged in a contact sport may only
recover if the injury was the result of intentional or willful and wanton
conduct. The circuit court concluded that the ice hockey game at issue
was a contact sport, and that plaintiff had failed to plead willful and
wanton conduct on the part of the player defendants.
With respect to counts II, IV, and VI, the negligence counts
directed against Redhawk Hockey, the Hockey Association and the
Officials Association, the court concluded that “no duty of care exists
in Illinois for claims arising out of negligence in high school contact
sports.” Accordingly, the circuit court dismissed these counts.
The court also dismissed counts III, V, and VI for failing to allege
willful and wanton conduct on the part of the organizational
defendants. The court noted, however, that in counts III and V
plaintiff alleged that Redhawk Hockey and the Hockey Association
had “promoted, encouraged or otherwise condoned players” to
bodycheck from behind. The circuit court observed that actively
encouraging a player to violate the rules went beyond mere
negligence, but also found that, as pled, plaintiff’s allegations of active
encouragement were conclusory and did not state a cause of action.
The court then granted plaintiff leave to amend counts III and V to
allege facts, if supported by reasonable inquiry under Supreme Court
Rule 137, that Redhawk Hockey and the Hockey Association had
actively encouraged players to violate the rule against bodychecking
from behind. Thereafter, plaintiff did not amend counts III and V and
counsel for plaintiff subsequently stated to the circuit court, “[W]e
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have no facts that would–that we could plead right now, pursuant to
[Supreme Court Rule] 137, that would establish that any of these
organizations encouraged actively–in other words, that they instructed
the players to violate this rule [against bodychecking from behind].”
In its order of July 1, 2005, the circuit court also dismissed count
VIII, the count alleging civil conspiracy, but granted leave to plaintiff
to replead the count with more specificity. Plaintiff subsequently filed
a third amended complaint that amended count VIII and listed each of
the previously dismissed counts. As repled, count VIII again alleged
that the Hockey Association and the Officials Association “agreed not
to enforce the *** checking from behind rule during games that
occurred under the authority of the rule of the [Hockey Association].”
On November 7, 2005, the circuit court granted the Hockey
Association and Officials Association’s section 2–615 motion to
dismiss count VIII. Regarding this count, the court noted that the
principal issue was whether the failure to strictly call the penalty of
checking from behind was a concerted action for an unlawful purpose.
The circuit court stated that it “couldn’t find any authority” which
held that the failure to strictly call a penalty amounted to an unlawful
purpose in a conspiracy claim. Accordingly, the court dismissed count
VIII and entered a final judgment as to all counts.
On appeal, the appellate court reversed the trial court’s dismissal
of counts I, II, IV, VI, and VIII and affirmed the trial court’s dismissal
of counts III, V, and VII. 369 Ill. App. 3d 884. With respect to the
player defendants, the appellate court held that plaintiff had adequately
pled willful and wanton conduct and, in particular, a “conscious
disregard for [plaintiff’s] safety”:
“Plaintiff alleged not only that Strevell and Zimmerman broke
the rules of hockey, but that they broke a rule of such special
emphasis that players’ jerseys were altered to reinforce it.
Plaintiff also alleged circumstances surrounding Strevell’s and
Zimmerman’s actions–they allegedly checked Benjamin when
he was defenseless and in a position of acute vulnerability–that
evince a conscious disregard for his safety. These allegations
taken as true create an inference that Strevell’s and
Zimmerman’s actions exceeded those acceptable during the
excitement of play and were so reckless that they were likely
to cause, and indeed did cause, injury to another. Therefore,
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we conclude that the first count of plaintiff’s complaint should
be reinstated so that he has an opportunity to prove the truth
of the allegations.” 369 Ill. App. 3d at 891-92.
With respect to the organizational defendants, the appellate court
affirmed the circuit court’s dismissal of counts III, V, and VII, the
counts alleging willful and wanton conduct, but reversed the dismissal
of counts II, IV, and VI, the counts alleging negligence, and reversed
the dismissal of count VIII, the count alleging civil conspiracy.
Regarding the negligence counts, the appellate court concluded
that the contact sports exception may apply, as a general matter, to
nonparticipant defendants, but that the exception did not apply in this
case. The court stated:
“While the contact sports exception may insulate the
organizational defendants from liability based on negligently
caused injuries sustained as a result of rough play, the injury
here, as discussed above, is alleged to have been the result of
willful and wanton conduct. As such, it falls beyond the scope
of protection the contact sports exception affords. Because we
hold above that plaintiff successfully pled Strevell’s and
Zimmerman’s willful and wanton conduct, we hold that the
contact sports exception does not protect the organizational
defendants for their negligence leading to the allegedly willful
and wanton conduct.” 369 Ill. App. 3d at 916.
Accordingly, the appellate court reversed the trial court’s dismissal of
the negligence counts against the organizational defendants. 369 Ill.
App. 3d at 915-16.
Regarding the willful and wanton counts against the three
organizational defendants, however, the appellate court affirmed the
trial court’s dismissal, stating:
“Plaintiff’s essential contention regarding all three
organizational defendants is that they failed to enforce hockey
safety rules sufficiently, and that this failure led to, and
perhaps encouraged, Strevell’s and Zimmerman’s allegedly
improper conduct, which caused Benjamin’s injury. While we
do not dispute plaintiff’s assertion that omissions or failures to
act can constitute willful and wanton conduct [citation], we
hold that the omissions and failures alleged here, even if
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proven, would not amount to willful and wanton conduct.”
369 Ill. App. 3d at 918.
Finally, the appellate court reversed the circuit court’s dismissal of
count VIII, the count alleging a civil conspiracy between the Hockey
Association and the Officials Associations to forgo enforcing the
prohibition against bodychecking from behind. Key to this holding was
the appellate court’s determination that plaintiff had successfully pled
that the Hockey Association and the Officials Association had an
unlawful purpose:
“As discussed above, plaintiff has successfully alleged that [the
Officials Association] may be liable in tort for the allegedly
willful and wanton injurious conduct resulting from its
negligence in failing to enforce the relevant hockey safety
rules. Therefore, to the extent that plaintiff is able to prove
that liability, he will be able to prove that the purpose of the
agreement he alleges between [the Hockey Association] and
[the Officials Association] was tortious, i.e., unlawful.” 369
Ill. App. 3d at 920.
Justice Kapala dissented in part. Although Justice Kapala agreed
that the claims against the player defendants should go forward, he
disagreed with the majority’s decision to allow the claims of
negligence and civil conspiracy against the organizational defendants
to proceed. 369 Ill. App. 3d at 921-24 (Kapala, J., concurring in part
and dissenting in part).
We granted the player and organizational defendants’ petitions for
leave to appeal and consolidated the cases for review. Plaintiff has
cross-appealed the appellate court’s judgment affirming the dismissal
of the counts of willful and wanton conduct against the organizational
defendants.
We have granted leave to USA Hockey, Inc., and the Illinois
Association of Defense Counsel to file amicus curiae briefs. The
Illinois Trial Lawyers Association also sought leave to file an amicus
curiae brief that urges the affirmance of the appellate court and
contends, inter alia, that this court should abandon fact pleading in
favor of notice pleading. Defendants have filed a joint motion to strike
the brief, contending that the fact-pleading doctrine is not at issue.
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“This court has repeatedly rejected attempts by amicus to raise
issues not raised by the parties to the appeal.” Burger v. Luther
General Hospital, 198 Ill. 2d 21, 62 (2001), citing Frye v.
Medicare-Glaser Corp., 153 Ill. 2d 26, 30 (1992); Archer Daniels
Midland Co. v. Industrial Comm’n, 138 Ill. 2d 107, 117 (1990).
“ ‘[A]n amicus takes the case as he finds it, with the issues framed by
the parties.’ ” Burger, 198 Ill. 2d at 62, quoting People v. P.H., 145
Ill. 2d 209, 234 (1991). No party to this case has argued for the
elimination of fact pleading. Accordingly, defendants’ motion to strike
is granted with respect to that portion of the amicus brief which urges
this court to abandon fact pleading. The remainder of the brief is
allowed.
ANALYSIS
A motion to dismiss brought under section 2–615 of the Code of
Civil Procedure tests the legal sufficiency of the complaint. On review,
the question is “whether the allegations of the complaint, when
construed in the light most favorable to the plaintiff, are sufficient to
establish a cause of action upon which relief may be granted.” Vitro
v. Mihelcic, 209 Ill. 2d 76, 81 (2004); Jarvis v. South Oak Dodge,
Inc., 201 Ill. 2d 81, 86 (2002). The standard of review is de novo.
Vitro, 209 Ill. 2d at 81.
Player Defendants
In general, every person owes a duty of ordinary care to guard
against injuries to others. Forsythe v. Clark USA, Inc., 224 Ill. 2d 274,
291 (2007). A person who breaches this duty is deemed negligent and
may be held financially liable if his conduct proximately causes injury
to another. Hills v. Bridgeview Little League Ass’n, 195 Ill. 2d 210,
228 (2000). However, in Pfister v. Shusta, 167 Ill. 2d 417 (1995), this
court adopted an exception to the standard of ordinary care for
participants engaged in contact sports. Under this exception, a
participant in a contact sport may not be held liable for negligent
conduct which injures a coparticipant. Instead, liability will arise only
if a participant intentionally, or willfully and wantonly, injures a
coparticipant. Stated otherwise, in a contact sport the duty owed by
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a participant to a fellow participant is the “duty to refrain from willful
and wanton or intentional misconduct.” Pfister, 167 Ill. 2d at 420.
Pfister explained the rationale for limiting participants’ liability in
contact sports:
“The contact sports exception strikes the appropriate balance
between society’s interest in limiting liability for injuries
resulting from physical contact inherent in a contact sport and
society’s interest in allowing recovery for injuries resulting
from willful and wanton or intentional misconduct by
participants. Those who participate in soccer, football,
softball, basketball, or even a spontaneous game of can
kicking, choose to play games in which physical contact
among participants is inherent in the conduct of the game.
Participants in such games assume a greater risk of injury
resulting from the negligent conduct of coparticipants. ***
***
*** The contact sports exception allows recovery for
injuries resulting from willful and wanton and intentional
misconduct while taking into account the voluntary nature of
participation in games where physical contact is anticipated
and where the risk of injury caused by this contact is
inherent.” Pfister, 167 Ill. 2d at 426-27.
See also Azzano v. Catholic Bishop of Chicago, 304 Ill. App. 3d 713,
718 (1999) (“the public policy underlying the contact sports exception
today is the need to strike a balance between protecting participants
in sporting activities and the voluntary nature of participation in games
where physical contact is inherent and inevitable”).
Pfister also noted that a rule limiting the liability of participants in
contact sports was necessary to avoid a chilling effect on the way
these sports are played. As the court observed, if a negligence
standard were imposed on participants, contact sports would be
fundamentally altered or, perhaps, eliminated altogether. Pfister, 167
Ill. 2d at 427, quoting Pfister v. Shusta, 256 Ill. App. 3d 186, 191-92
(1994) (Green, J., dissenting). Numerous other courts have voiced the
same concern and have stated that a primary justification for limiting
liability in the sports context is to avoid fundamentally altering, or
discouraging participation in, the sport at issue. See, e.g., Knight v.
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Jewett, 3 Cal. 4th 296, 318, 834 P.2d 696, 710, 11 Cal. Rptr. 2d 2, 16
(1992) (“vigorous participation in such sporting events likely would
be chilled if legal liability were to be imposed on a participant on the
basis of his or her ordinary careless conduct”); Ross v. Clouser, 637
S.W.2d 11, 14 (Mo. 1982) (“Fear of civil liability stemming from
negligent acts occurring in an athletic event could curtail the proper
fervor with which the game should be played and discourage
individual participation”); Bowman v. McNary, 853 N.E.2d 984, 992
(Ind. App. 2006).
In addition, several courts have recognized a need for a rule
limiting liability in the sports context in order to avoid a flood of
litigation. As one court has stated:
“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. *** [T]here
exists the potential for a surfeit of lawsuits when it becomes
known that simple negligence, based on an inadvertent
violation of a contest rule, will suffice as a ground for
recovery for an athletic injury. This should not be
encouraged.” Jaworski v. Kiernan, 241 Conn. 399, 409-10,
696 A.2d 332, 338 (1997).
See also Savino v. Robertson, 273 Ill. App. 3d 811, 818 (1995) (“the
practical effect of applying an ordinary negligence standard would be
to open a legal Pandora’s box, allowing virtually every participant in
a contact sport, injured by another during a ‘warm-up’ or practice, to
bring an action based on the risks inherent in virtually every contact
sport. This is exactly the type of result the courts have sought to
avoid”).
Importantly, although Pfister referred to the contact sports
exception in terms of the risks assumed by the plaintiff (Pfister, 167
Ill. 2d at 426), the exception is not an affirmative defense, nor does it
require the court to determine the plaintiff’s subjective awareness of
the risks associated with the sport. Rather, the contact sports
exception is an objective doctrine that defines the scope of the
defendant’s duty. See Restatement (Third) of Torts: Apportionment
of Liability §2, Comment j, at 27 (2000) (“What courts often call
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‘primary assumption of risk’ is actually a doctrine about the
defendant’s liability or duty”); Barrett v. Fritz, 42 Ill. 2d 529, 535
(1969) (assumption of the risk concepts are generally duplicative of
other doctrines, including scope of duty); Davenport v. Cotton Hope
Plantation Horizontal Property Regime, 333 S.C. 71, 80-81, 508
S.E.2d 565, 570 (1998); Perez v. McConkey, 872 S.W.2d 897, 902
(Tenn. 1994); Turcotte v. Fell, 68 N.Y.2d 432, 437-39, 502 N.E.2d
964, 967-68, 510 N.Y.S.2d 49, 52-53 (1986).
When deciding whether the contact sports exception applies, the
court must consider the nature of the sport at issue and determine,
based on its inherent risks, whether it is a contact sport. When the
court concludes that “physical contact among participants is inherent”
in the game (Pfister, 167 Ill. 2d at 425), a player owes no duty to a
coparticipant to avoid ordinary negligence. See, e.g., Landrum v.
Gonzalez, 257 Ill. App. 3d 942, 947 (1994) (whether a particular case
is subject to the contact sports exception “is properly resolved by
examining the objective factors surrounding the game itself, not on the
subjective expectations of the parties”); see generally Knight, 3 Cal.
4th at 315, 834 P.2d at 708, 11 Cal. Rptr. 2d at 14 (a court need not
ask what risks a particular plaintiff subjectively knew of and chose to
encounter, but instead must evaluate the fundamental nature of the
sport and the defendant’s role in or relationship to that sport in order
to determine whether the defendant owes a duty to protect a plaintiff
from the particular risk of harm).
In the case at bar, there is no dispute regarding the nature of the
sport at issue. The parties agree that ice hockey, played in a game in
which bodychecking is permitted, is a contact sport. Thus, pursuant
to Pfister, the duty owed by the player defendants to Benjamin was
the “duty to refrain from willful and wanton or intentional
misconduct.” Pfister, 167 Ill. 2d at 420.
Pfister defined willful and wanton conduct as “a course of action
which shows actual or deliberate intent to harm or which, if the course
of action is not intentional, shows an utter indifference to or conscious
disregard for a person’s own safety or the safety or property of
others.” Pfister, 167 Ill. 2d at 421, citing Ziarko v. Soo Line R.R. Co.,
161 Ill. 2d 267, 273 (1994). The appellate court below concluded that
plaintiff had pled conduct on the part of the player defendants that met
this standard. According to the appellate court, because plaintiff
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alleged that the player defendants knowingly violated a rule against
bodychecking from behind, and because they knew that Benjamin was
in a position near the edge of the rink, or boards, when he was struck,
plaintiff sufficiently pled a “conscious disregard” of Benjamin’s safety
by the player defendants. 369 Ill. App. 3d at 892. Before this court,
plaintiff repeats this line of reasoning.
We note that Pfister did not consider the application of the
traditional willful and wanton standard to full-contact sports such as
ice hockey and tackle football where physical contact between players
is not simply an unavoidable byproduct of vigorous play, but is a
fundamental part of the way the game is played. In these sports,
holding participants liable for consciously disregarding the safety of
coparticipants is problematic.
Striking or bodychecking a person who is standing on two thin
metal blades atop a sheet of ice is an inherently dangerous action.
Even a cleanly executed body check, performed according to the rules
of ice hockey, evinces a conscious disregard for the safety of the
person being struck. Yet, in an ice hockey game where bodychecking
is permitted, players are struck throughout the game. This conduct is
an inherent, fundamental part of the sport. Similarly, in tackle football
players must necessarily disregard the risk of injury to others, simply
because of the way the game is played:
“The playing of football is a body-contact sport. The game
demands that the players come into physical contact with each
other constantly, frequently with great force. The linemen
charge the opposing line vigorously, shoulder to shoulder. The
tackler faces the risk of leaping at the swiftly moving legs of
the ball-carrier and the latter must be prepared to strike the
ground violently. Body contacts, bruises, and clashes are
inherent in the game. There is no other way to play it.”
Vendrell v. School District No. 26C, 233 Or. 1, 15, 376 P.2d
406, 412 (1962).
In full-contact sports such as tackle football, and ice hockey where
bodychecking is permitted, a conscious disregard for the safety of the
opposing player is an inherent part of the game. D. Lazaroff, Torts &
Sports, 7 U. Miami Ent. & Sports L. Rev. 191, 213 (“The infliction of
pain with the knowledge of danger is inherent in certain sports such
as football and hockey”).
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A standard of care that holds a player liable based on conduct that
is inherent in the sport is contrary to the underlying rationale of
Pfister. As noted, the rule announced in Pfister is based on the long-
standing principle that certain sports contain inherent risks for which
a defendant owes no duty of care. Pfister, 167 Ill. 2d at 426-27; see
also Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 166 N.E.
173 (1929) (Cardozo, J.). Although they evince a conscious disregard
for the safety of other players, bodychecking and tackling are an
inherent part of the sports of ice hockey and football. Pursuant to
Pfister, a participant has no duty to avoid such conduct.
Morever, imposing liability under the conscious disregard of safety
standard would have a pronounced chilling effect on full-contact
sports such as ice hockey and football. If liability could be established
every time a body check or tackle resulted in injury–because that
conduct demonstrates a conscious disregard for the safety of the
opposing player–the games of ice hockey and football as we know
them would not be played. Pfister, 167 Ill. 2d at 427, quoting Pfister,
256 Ill. App. 3d at 191-92 (Green, J., dissenting).
Finally, the conscious disregard of safety standard is unfair to
defendants in full-contact sports such as ice hockey. As one
commentator has noted, ice hockey, like football, is an example of a
sport “in which body checking and physical play may foreseeably
result in frequent injuries. It would be *** unjust to predicate
participant liability upon the participant’s knowledge that a tough
check or collision could result in injury. This type of conduct is
inherent in the sport itself.” 7 U. Miami Ent. & Sports L. Rev. at 214.
In full-contact sports, such as ice hockey where bodychecking is
allowed, and tackle football, the traditional willful and wanton
standard is both unworkable and contrary to the rationale underlying
Pfister. To remain consistent with the reasoning of Pfister, a standard
of care must be employed that more accurately accounts for the
inherent risks associated with these sports.
In considering the appropriate standard of care to be followed, we
note that a majority of courts have concluded that “rules violations are
inherent and anticipated aspects of sports contests” and, thus,
insufficient to establish liability by themselves. T. Davis, Avila v.
Citrus Community College District: Shaping the Contours of
Immunity and Primary Assumption of the Risk, 17 Marq. Sports L.
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Rev. 259, 274 (2006). As this court observed in Pfister, in numerous
sports,
“ ‘players regularly commit contact beyond that which is
permitted by the rules even as applied. In basketball, such an
illegal contact is described as a foul for which a sanction is
imposed. Sometimes the player fouled is injured. This is to be
expected.’ ” Pfister, 167 Ill. 2d at 427, quoting Pfister, 256
Ill. App. 3d at 191-92 (Green, J., dissenting).
See also Lang v. Silva, 306 Ill. App. 3d 960, 968-69 (1999) (“even in
sports where there are rules governing the permissible degree of
physical contact, rule infractions are inevitable and justify a lower
standard of care than ordinary negligence”); Jaworski, 241 Conn. at
407-08, 696 A.2d at 337 (“In athletic competitions, the object
obviously is to win. In games, particularly those *** involving some
degree of physical contact, it is reasonable to assume that the
competitive spirit of the participants will result in some rules
violations and injuries. That is why there are penalty boxes, fouls
shots, free kicks, and yellow cards”); Mark v. Moser, 746 N.E.2d 410,
419 (Ind. App. 2001).
Policy reasons also justify the holding that rules violations, by
themselves, are insufficient to impose liability in a contact sport:
“[E]ven when a participant’s conduct violates a rule of the
game and may subject the violator to internal sanctions
prescribed by the sport itself, imposition of legal liability for
such conduct might well alter fundamentally the nature of the
sport by deterring participants from vigorously engaging in
activity that falls close to, but on the permissible side of, a
prescribed rule.” (Emphasis in original.) Knight, 3 Cal. 4th at
318-19, 834 P.2d at 710, 11 Cal. Rptr. 2d at 16.
At the same time, courts have uniformly recognized that not all
misconduct can be considered an inherent aspect of the sport being
played. “[S]ome of the restraints of civilization must accompany every
athlete on to the playing field.” Nabozny v. Barnhill, 31 Ill. App. 3d
212, 215 (1975).
Courts have expressed a standard of care that balances these
concerns and, in particular, acknowledges the risks inherent in certain
sports, in various ways. Perhaps the most frequently cited standard is
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that adopted by the Supreme Court of California in Knight v. Jewett,
3 Cal. 4th 296, 834 P.2d 696, 11 Cal. Rptr. 2d 2 (1992). There, the
court stated that a participant breaches a duty of care to a
coparticipant “only if the participant intentionally injures another
player or engages in conduct that is so reckless as to be totally outside
the range of the ordinary activity involved in the sport.” Knight, 3 Cal.
4th at 320, 834 P.2d at 711, 11 Cal. Rptr. 2d at 17. Other authorities
have adopted similar standards. See, e.g., Turcotte, 68 N.Y.2d at 441,
502 N.E.2d at 970, 510 N.Y.S.2d at 55 (liability will lie for “flagrant
infractions unrelated to the normal method of playing the game and
done without any competitive purpose”); Mark, 746 N.E.2d at 422
(“liability will not lie where the injury causing action amounts to a
tactical move that is an inherent or reasonably foreseeable part of the
game and is undertaken to secure a competitive edge”); 17 Marq.
Sports L. Rev. at 283 (liability will lie for “extreme conduct that falls
squarely outside of the customs or ordinary conduct that can be
expected in a particular sport”). Regardless of the precise wording,
these standards all draw a line in a way that permits recovery for
extreme misconduct during a sporting event that causes injury, while
at the same time foreclosing liability for conduct which, although it
may amount to an infraction of the rules, is nevertheless an inherent
and inevitable part of the sport. We agree with the standards set forth
in the above authorities, and conclude that, in a full contact sport such
as ice hockey or tackle football, a participant breaches a duty of care
to a coparticipant only if the participant intentionally injures the
coparticipant or engages in conduct “totally outside the range of the
ordinary activity involved in the sport.” Knight, 3 Cal. 4th at 320, 834
P.2d at 711, 11 Cal. Rptr. 2d at 17.
As currently pled, nothing takes the play at issue in this case
totally outside the range of ordinary activity associated with ice
hockey in a game in which bodychecking is allowed. The complaint
contains no allegation that Benjamin was deliberately targeted by the
player defendants, either in retaliation for an earlier incident or some
other purpose, or that the player defendants had any intent to hurt
him. Although the complaint alleges that Benjamin was struck while
next to the boards at the edge of the rink, there is no allegation that
body checks are prohibited in that area, or that the body check was in
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some way out of the normal area of play. Nor does the complaint
allege that plaintiff was struck after play had been stopped.
The key allegation in plaintiff’s complaint is that the player
defendants violated a rule against checking from behind when they
struck Benjamin. However, as noted, rules violations are considered
an inherent, unavoidable risk of playing a contact sport. As pled then,
plaintiff’s complaint fails to allege conduct totally outside the ordinary
range of activity associated with ice hockey. The circuit court properly
dismissed count I of plaintiff’s complaint, and the judgment of the
appellate court reinstating that count must be reversed.
This is not to say, however, that conduct totally outside the
ordinary range of activity associated with ice hockey did not occur in
this case. For example, if Benjamin was struck by the player
defendants, not in the heat of play while struggling to gain possession
of the puck, but away from the puck and the action of the game, that
might well be a breach of the standard adopted here. However, in his
complaint, plaintiff does not include any indication of where Benjamin
was in relation to the puck, and any ongoing play, when the contact
took place. A plaintiff cannot successfully plead a cause of action for
conduct which is totally outside the range of ordinary activity involved
in the sport without including facts that describe the play that was
occurring at the time of injury.
The appellate court below suggested that the defendant players
could raise the location of the puck as an issue in rebuttal, to defeat
the inference of willful and wanton conduct raised by plaintiff’s
complaint. 369 Ill. App. 3d at 892. However, this would improperly
shift the burden to defendants. It is a plaintiff’s responsibility to plead
facts that establish a defendant’s duty (Hills v. Bridgeview Little
League Ass’n, 195 Ill. 2d 210, 228 (2000)), and thus, in a full-contact
sport, it is plaintiff’s responsibility to plead facts that show conduct
totally outside the range of ordinary activity involved in the sport.
Finally, we acknowledge that the standard of care we adopt today,
while necessitated by the underlying rationale of Pfister, was not
explicitly set forth in that decision. Under these circumstances, to
avoid any unfairness to plaintiff, we deem it appropriate to remand
this cause to the circuit court with instructions to permit plaintiff to
amend count I of his complaint in conformance with the standard of
care set forth in this opinion, if he is able to do so.
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Organizational Defendants
Plaintiff’s second amended complaint contains three counts,
counts II, IV and VI, that allege negligence on the part of the
organizational defendants, Redhawk Hockey, the Hockey Association,
and the Officials Association. The organizational defendants initially
contend that the negligence counts are barred by the contact sports
exception and, therefore, that the appellate court erred in reversing the
circuit court’s dismissal of these counts.
Whether the contact sports exception may be applied to a
nonparticipant in a sporting event, such as the organizational
defendants here, is an issue of first impression in this court. In
considering this issue, both parties direct our attention to the Supreme
Court of California’s decision in Kahn v. East Side Union High
School District, 31 Cal. 4th 990, 75 P.3d 30, 4 Cal. Rptr. 3d 103
(2003). In Kahn, the plaintiff was a novice member of a high school
swim team who broke her neck after diving off a starting block into
a shallow racing pool. The plaintiff filed suit against the school district
and her swimming coach, alleging that she had been inadequately
instructed in how to safely dive into a racing pool and had been
pushed beyond her capabilities. The circuit court granted summary
judgment in favor of the defendants. The intermediate appellate court
affirmed, holding that shallow-water diving presents dangers that are
inherent in competitive swimming and that “coaches who merely
challenge their students to move beyond their current level of
performance have not breached a duty of care.” Kahn, 31 Cal. 4th at
997-1002, 75 P.3d at 33-37, 4 Cal. Rptr. 3d at 107-12.
On appeal, the Supreme Court of California considered the
standard of care that should be applied to the defendants. The court
noted that a number of cases had declined to impose liability on a
coach or instructor on the basis of ordinary negligence in urging
students to go beyond their current level of competence. In these
cases, the court noted, the analysis had focused generally on the
circumstances of the sport and its inherent risks, the relationship of the
parties to the sport and to each other, and “whether imposing broader
liability on coaches and instructors would harm the sport or cause it
to be changed or abandoned.” Kahn, 31 Cal. 4th at 1006, 75 P.3d at
39, 4 Cal. Rptr. 3d at 115. Discussing these same criteria, the
Supreme Court of California noted that “the risks associated with
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learning a sport may themselves be inherent risks of the sport, and
that an instructor or coach generally does not increase the risk of harm
inherent in learning the sport simply by urging the student to strive to
excel or to reach a new level of competence.” (Emphasis in original.)
Kahn, 31 Cal. 4th at 1006, 75 P.3d at 40, 4 Cal. Rptr. 3d at 115. The
court also noted that “[t]o impose a duty to mitigate the inherent risks
of learning a sport by refraining from challenging a student, as these
cases explain, could have a chilling effect on the enterprise of teaching
and learning skills that are necessary to the sport. At a competitive
level, especially, this chilling effect is undesirable.” Kahn, 31 Cal. 4th
at 1007, 75 P.3d at 40, 4 Cal. Rptr. 3d at 115.
The court concluded that an ordinary negligence standard was
inappropriate, stating:
“In the present case, we recognize that the relationship of a
sports instructor or coach to a student or athlete is different
from the relationship between coparticipants in a sport. But
because a significant part of an instructor’s or coach’s role is
to challenge or ‘push’ a student or athlete to advance in his or
her skill level and to undertake more difficult tasks, and
because the fulfillment of such a role could be improperly
chilled by too stringent a standard of potential legal liability,
we conclude that the same general standard should apply in
cases in which an instructor’s alleged liability rests primarily
on a claim that he or she challenged the player to perform
beyond his or her capacity or failed to provide adequate
instruction or supervision before directing or permitting a
student to perform a particular maneuver that has resulted in
injury to the student. A sports instructor may be found to have
breached a duty of care to a student or athlete only if the
instructor intentionally injures the student or engages in
conduct that is reckless in the sense that it is ‘totally outside
the range of the ordinary activity’ (ibid.) involved in teaching
or coaching the sport.” Kahn, 31 Cal. 4th at 996, 75 P.3d at
32-33, 4 Cal. Rptr. 3d at 106-07.
Applying that standard of care to the case before it, the Supreme
Court of California then concluded that there were material questions
of fact as to whether the standard had been breached. Accordingly, the
court reversed the lower courts’ judgments granting summary
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judgment. Kahn, 31 Cal. 4th at 1011-13, 75 P.3d at 43-44, 4 Cal.
Rptr. 3d at 119-21. See also Kavanagh v. Trustees of Boston
University, 440 Mass. 195, 204-06, 795 N.E.2d 1170, 1178-80
(2003) (declining to apply an ordinary negligence to a defendant coach
who allegedly caused his player to injure an opposing player).
Although Kahn is factually distinguishable from the present case,
the general principles which the decision relied upon to determine the
standard of care for a nonparticipant are persuasive, consistent with
Pfister, and applicable here. As the appellate court below noted,
plaintiff’s essential allegation against all three organizational
defendants is that they failed to adequately enforce the rule against
bodychecking from behind. 369 Ill. App. 3d at 918. Yet, as noted
earlier, rules violations are inevitable in contact sports and are
generally considered an inherent risk of playing the game. Pfister, 167
Ill. 2d at 427, quoting Pfister, 256 Ill. App. 3d at 191-92 (Green, J.,
dissenting). Further, in an organized contact sport, such as the one at
issue here, the enforcement of the rules directly affects the way in
which the sport is played. Imposing too strict a standard of liability on
the enforcement of those rules would have a chilling effect on
vigorous participation in the sport. Finally, as the organizational
defendants point out, coaching and officiating decisions involve
subjective decisionmaking that often occurs in the middle of a fast
moving game. It is difficult to observe all the contact that takes place
during an ice hockey game, and it is difficult to imagine activities more
prone to secondguessing than coaching and officiating. Applying an
ordinary negligence standard to these decisions would open the door
to a surfeit of litigation and would impose an unfair burden on
organizational defendants such as those in the case at bar.
Accordingly, we conclude that, under the facts alleged here, the
contact sports exception applies to the organizational defendants. To
successfully plead a cause of action for failing to adequately enforce
the rules in an organized full-contact sport, plaintiff must allege that
the defendant acted with intent to cause the injury or that the
defendant engaged in conduct “totally outside the range of the
ordinary activity” (Knight, 3 Cal. 4th at 320, 834 P.2d at 711, 11 Cal.
Rptr. 2d at 17) involved with coaching or officiating the sport.
Because the contact sports exception applies to the organizational
defendants, the circuit court properly dismissed counts II, IV, and VI
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of plaintiff’s second amended complaint, the counts alleging
negligence against the organizational defendants. The appellate court
below, however, concluded that the negligence counts could go
forward. According to the appellate court, plaintiff had successfully
pled willful and wanton conduct on the part of the player defendants
and “the contact sports exception does not protect the organizational
defendants for their negligence leading to the allegedly willful and
wanton conduct.” 369 Ill. App. 3d at 916. We disagree.
As discussed above, whether the contact sports exception applies
to a nonparticipant defendant is a policy determination that rests on
the circumstances of the sport and its inherent risks, the relationship
of the parties to the sport and to each other, and whether imposing
broader liability on the defendant “would harm the sport or cause it to
be changed or abandoned.” Kahn, 31 Cal. 4th at 1006, 75 P.3d at 39,
4 Cal. Rptr. 3d at 115. Application of the exception is not based, as
the appellate court concluded, on whether the defendant’s conduct
causes a third party to violate a standard of care. The appellate court
erred in allowing the negligence counts to proceed. The judgment of
the circuit court dismissing counts II, IV, and VI is affirmed.
As currently pled, nothing in counts III, V, or VII of plaintiff’s
second amended complaint, the counts alleging willful and wanton
conduct on the part of the organizational defendants, alleges conduct
totally outside the range of ordinary activity involved with coaching
or officiating the sport of ice hockey. Plaintiff does not allege that the
organizational defendants completely failed to enforce the rule against
bodychecking from behind and, indeed, the second amended complaint
alleges that all the players in the game at issue were wearing a “stop”
warning on the back of their jerseys in an effort to enforce the rule.
Moreover, as noted previously, although plaintiff’s second amended
complaint alleged, in counts III and V, that Redhawk Hockey and the
Hockey Association actively encouraged violation of the rule against
bodychecking from behind, plaintiff conceded in the circuit court that
he could not plead any facts, under Supreme Court Rule 137, to
support that conclusory allegation. We conclude, therefore, that the
appellate court properly affirmed the circuit court’s dismissal of
counts III, V, and VII.
However, we again note that the standard of care for the
organizational defendants, while consistent with the rationale of
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Pfister, was not explicit in that decision. As we concluded with
respect to count I, and to avoid any unfairness to plaintiff, we remand
this cause to the circuit court with instructions to permit plaintiff to
amend counts III, V, and VII of his complaint in conformance with
the standard of care set forth in this opinion, if he is able to do so.
Civil Conspiracy
We need not address at length plaintiff’s allegation of a civil
conspiracy between the Hockey Association and the Officials
Association to forgo enforcing the rule against bodychecking from
behind. “Civil conspiracy consists of a combination of two or more
persons for the purpose of accomplishing by some concerted action
either an unlawful purpose or a lawful purpose by unlawful means.”
Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 62 (1994). In this case, the
appellate court held that plaintiff successfully pled an unlawful
purpose based on the court’s previous conclusion that plaintiff had
successfully alleged negligence on the part of the Officials
Association. As the appellate court stated:
“As discussed above, plaintiff has successfully alleged that [the
Officials Association] may be liable in tort for the allegedly
willful and wanton injurious conduct resulting from its
negligence in failing to enforce the relevant hockey safety
rules. Therefore, to the extent that plaintiff is able to prove
that liability, he will be able to prove that the purpose of the
agreement he alleges between [the Hockey Association] and
[the Officials Association] was tortious, i.e., unlawful.” 369
Ill. App. 3d at 920.
We have reversed that portion of the appellate court’s judgment which
allowed the claims of negligence against the organizational defendants
to go forward. It follows, therefore, that the judgment of the appellate
court allowing the civil conspiracy count to go forward must be
reversed as well. However, as we have instructed the circuit court to
permit plaintiff to replead, if possible, wrongful conduct in counts I,
III, V, and VII, we deem it appropriate to instruct the circuit court to
permit plaintiff to replead count VIII, if he is able to do so.
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CONCLUSION
The judgment of the circuit court dismissing plaintiff’s complaint
in its entirety is affirmed. The judgment of the appellate court is
affirmed in part and reversed in part. Counts II, IV, and VI of
plaintiff’s second amended complaint are dismissed with prejudice.
The cause is remanded to the circuit court with instructions to permit
plaintiff to amend counts I, III, V, VII, and VIII of his complaint in
conformance with the standards of care set forth in this opinion, if he
is able to do so.
Appellate court judgment affirmed in part
and reversed in part;
circuit court judgment affirmed;
cause remanded with instructions.
JUSTICE KILBRIDE, specially concurring:
I agree with the result reached by the majority, and I do not
generally quarrel with the majority’s adoption of the standards
announced in Knight and Kahn. Nonetheless, I believe the majority
goes too far when it holds that, under Knight, participants in full-
contact sports may consciously disregard the safety of their co-
participants. I cannot countenance the notion that a participant in any
civilized activity may consciously disregard the safety of another
without consequence. Furthermore, I believe the majority has not
sufficiently explained the scope of liability incurred by youth sport
coaches and sporting organizations under Kahn. Therefore, I specially
concur in the result reached by the majority but not in its reasoning.
The majority contends that “[i]n full-contact sports such as tackle
football, and ice hockey where bodychecking is permitted, a conscious
disregard for the safety of the opposing player is an inherent part of
the game.” Slip op. at 13. Therefore, keeping the Pfister contact
sports exception would produce a chilling effect, and “the games of
ice hockey and football as we know them would not be played.” Slip
op. at 14. They further suggest that it would be unfair to defendants
playing full-contact sports to hold them liable for conduct inherent in
their sport. Slip op. at 14. Hence, the majority claims that full-contact
-23-
sports require a new and different standard of care to address
adequately the aggressiveness and physicality involved, namely,
Knight’s duty to avoid conduct totally outside the normal range of
activity in the sport. Slip op. at 16. I, however, disagree.
To begin, I disagree with the conclusion that a conscious disregard
for the safety of opposing players is inherent in full-contact sports.
The majority supports this conclusion by noting that some risk of
injury is involved when one player strikes another, even within the
rules of a sport. Slip op. at 13. While this is undoubtedly true, proper
bodychecking or tackling does not necessarily disregard the
opponent’s “safety.” In organized hockey, football, and lacrosse, for
example, the rules mandate a wide variety of protective equipment,
including helmets and pads, to reduce the risk of injury. Similarly, the
rules addressing players’ physical contact are designed to shield
sensitive and unprotected areas of the body. Notably, blows to the
head are prohibited in all three sports. Moreover, through social
disapproval, participants in full-contact sports discourage play likely
to cause significant injury. Indeed, to be known as a “cheap shot
artist” is a significant source of shame for most participants.
Therefore, when participants collide in the normal course of play, both
reasonably expect they will get up and continue the game. It is fair to
say that even in boxing, the most extreme sports example, both boxers
expect to shake hands after the bout with no greater injuries than cuts
and bruises despite having forcefully struck each other in the face and
midsection.
Further, any risk of injury presented by the kind of physical
contact the majority describes is by no means unique to full-contact
sports. Defensive basketball players regularly take charges from others
driving to the basket with a running start. Basketball players may also
collide while pursuing rebounds, sometimes known as “banging under
the boards.” Soccer players sometimes miss while attempting to hit
the ball with their heads and, instead, slam into the head of an
opponent also competing for the ball. In that same sport, devastating
knee injuries occur based on ill-timed, sliding tackles from behind. See
also Kahn, 31 Cal. 4th at 1003, 75 P.3d at 37, 4 Cal. Rptr. 3d at 112
(“In a game of touch football *** there is an inherent risk that players
will collide” (emphasis added)).
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Therefore, I fail to see why full-contact sports require any special
legal treatment. In fact, contrary to the majority’s conclusion, we
previously suggested that the contact sports exception in Pfister
would adequately address full-contact sports. The majority even
quotes the pertinent portion in its own analysis:
“ ‘Those who participate in soccer, football, softball,
basketball, or even a spontaneous game of can kicking, choose
to play games in which physical contact among participants
is inherent in the conduct of the game. Participants in such
games assume a greater risk of injury resulting from the
negligent conduct of coparticipants. ***
***
*** The contact sports exception allows recovery for
injuries resulting from willful and wanton and intentional
misconduct while taking into account the voluntary nature of
participation in games where physical contact is anticipated
and where the risk of injury caused by this contact is
inherent.’ ” (Emphases added.) Slip op. at 10, quoting Pfister,
167 Ill. 2d at 426-27.
Instead of replacing the willful and wanton standard in full-contact
sports, I believe the Knight standard merely further explains willful
and wanton behavior and the conscious disregard of a co-participant’s
safety. Pfister also supports this conclusion.
When compared side-by-side, the language in Knight and Pfister
is substantively indistinguishable. As the majority points out, Pfister
defined willful and wanton conduct “as ‘a course of action which
shows actual or deliberate intent to harm or which, if the course of
action is not intentional, shows an utter indifference to or conscious
disregard for a person’s own safety or the safety or property of
others.’ ” Slip op. at 12, quoting Pfister, 167 Ill. 2d at 421. Similarly,
Knight imposes liability on a contact sport participant where “the
participant intentionally injures another player or engages in conduct
that is so reckless as to be totally outside the range of the ordinary
activity involved in the sport.” (Emphasis added.) Knight, 3 Cal. 4th
at 320, 834 P.2d at 711, 11 Cal. Rptr. 2d at 17. See also Kahn, 31
Cal. 4th at 996, 75 P.3d at 32-33, 4 Cal. Rptr. 3d at 106-07 (“A
sports instructor may be found to have breached a duty of care to a
-25-
student or athlete only if the instructor intentionally injures the student
or engages in conduct that is reckless in the sense that it is ‘totally
outside the range of the ordinary activity’ *** involved in teaching or
coaching the sport” (emphasis added)).
Recklessness, the standard actually used in Knight, is synonymous
with willful and wanton and encompasses conscious disregard for the
safety of another. As Professor Dobbs explains:
“Courts often recognize a kind of *** category of fault
that is distinguishable both from intent and from negligence.
This category is called recklessness or willful or wanton
misconduct. ***
*** [C]ourts find conduct to be reckless, willful or wanton
when two elements concur. First, the conduct must not only
create an unreasonable risk of harm to others, it must create
a high degree of risk or a risk of very serious harm. Second,
the defendant must be conscious of the risk and proceed
without concern for the safety of others.” (Emphasis added.)
1 D. Dobbs, Torts §27, at 51 (2001).
In essence, Knight does not create a different standard than Pfister.
I disagree with the majority’s conclusion that adopting the Knight
standard heralds a new standard of care permitting participants in full-
contact sports to disregard consciously the safety of other
participants. Rather, this court should affirm the vitality of Pfister in
all contact sports and merely explain its application in full-contact
sports. Therefore, I respectfully concur in the majority opinion
because, while I agree with the result reached, I cannot agree with its
rationale.
I also respectfully seek to clarify the majority’s analysis of the duty
properly attributed to youth sports coaches and sporting
organizations. The age and experience of the participants must play a
role in considering the duty owed by adult coaches and adult-
organized sporting organizations. Relying on Kahn, the majority
adopts a standard of care to be applied to coaches and sporting
organizations without specifically addressing these critical factors.
Although Kahn involved a young, novice sport participant
allegedly hurt due to inadequate instruction from her adult, high
school coach, the Kahn majority did not expressly consider how a
-26-
participant’s age and experience would affect the coach’s duty. In
fact, the two justices of the California Supreme Court who wrote
separately in Kahn criticized the inflexibility of the rule created by the
majority as failing to account for the age and skill level of the
participants and coaches. In his special concurrence, Justice Werdegar
stated his belief that coaches and teachers of minor students should
bear “a somewhat greater duty.” Kahn, 31 Cal. 4th at 1019, 75 P.3d
at 49, 4 Cal. Rptr. 3d at 126 (Werdegar, J., specially concurring). He
further noted:
“When the instructor or coach is a school teacher *** the
safety of the minor students will usually be a primary
consideration. Society expects-legitimately, in my view-more
from instructors and coaches than merely that they will refrain
from harming a student intentionally or with wanton disregard
for safety. An instructor’s gross or extreme lack of care for
student safety is not an inherent risk of school athletics
programs.” Kahn, 31 Cal. 4th at 1019-20, 75 P.3d at 49, 4
Cal. Rptr. 3d at 126 (Werdegar, J., specially concurring).
Similarly, Justice Kennard observed in his dissent:
“[T]he majority adopts the same standard for a professional
coach of novice teenage athletes that the Knight and Ford
plurality found appropriate for participants in active sports.
Not taken into account by the majority is the significant
difference between the two groups. *** Because student
athletes, particularly minors, often consider their coach a
mentor or role model, they trust the coach not to carelessly
and needlessly expose them to injury.” (Emphases in original.)
Kahn, 31 Cal. 4th at 1023, 75 P.3d at 52, 4 Cal. Rptr. 3d at
129-30 (Kennard, J., concurring in part and dissenting in part).
Perhaps to avoid these pitfalls, the majority here cites those
portions of the Kahn majority opinion noting the relationship of the
parties to each other, and to the sport, in assessing whether a coach
or sporting organization has acted totally outside of the range of
ordinary coaching or instruction. Slip op. at 18-20. Although the
majority does not expressly discuss the significant factors of youth and
inexperience, this acknowledgment suggests it intends to require a
higher standard of care for coaches and organizations with young,
inexperienced participants. This higher standard of care will be
-27-
triggered by the nature of the relationships among these players and
their coaches and organizations. The pertinent question in determining
whether a coach or organization acted willfully and wantonly will be
whether the action of the coaches or the sporting organizations was
totally outside of the range of the ordinary coaching, instruction,
supervision, or organization of players of a certain age and experience
level in a particular sport. With that addition, the Kahn framework as
presented by this majority is sufficient. If this is not the majority’s
intent, however, it should be. We cannot legitimately ignore younger
athletes’ greater physical vulnerability or their limited autonomy from
their coaches and sporting organizations in assessing the propriety of
their conduct toward their young athletes.
To the extent that the majority departs from this interpretation of
the full-contact sports standard in Knight and the application of Kahn
in the context of youth sports, I respectfully concur in the majority’s
judgment but not in its reasoning.
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