Osborne v. Sprowls , 83 Ill. App. 3d 968 ( 1980 )

Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the

court:

The defendant, Victor Sprowls, appeals from the judgment of the court, after a jury verdict, finding Sprowls liable for injuries suffered by plaintiff Willard Osborne, Jr. Damages in the amount of $31,350 were awarded by the jury. On appeal, the defense argues (1) that there was no negligence, as a matter of law; (2) that the plaintiff Osborne was guilty of contributory negligence, as a matter of law; and (3) that a willful and wanton standard, and not a negligence standard, ought to have been the only standard applied in this case.

While the facts in the case were disputed, the defense, as it must where a verdict has been returned for the plaintiff, accepts as true the plaintiff’s evidence in its light most favorable to the plaintiff. Those facts indicate that on September 25,1975, Willard Osborne, Jr., and 10 to 15 of his eighth grade classmates gathered after school in the backyard of Laurie Cronin, one of the eighth graders. Most of the children had worked on their eighth grade project (a float for the upcoming homecoming parade) prior to going over to the Cronins’. The Cronin residence had a large backyard, which adjoined another large backyard, that of the Norton residence, without fence or other obstruction between them. Willard Osborne, Jr., at the time, was 13 years old, weighed 80 to 85 pounds and stood under 5' in height. The defendant, Victor Sprowls, lived several blocks down from the Cronin residence. Fie was 15, a sophomore at Earlville High School. He weighed 130 to 135 pounds and was 5'3" in height. He arrived at the Cronin backyard after the eighth graders had arrived, and he was the oldest of the children there. When Victor Sprowls arrived, a game of “tackle the football” was in progress in the backyards, and he joined in the game. The plaintiff, Willard Osborne, Jr., was also a participant in the game, as were a number of the other boys and girls at the Cronin residence. “Tackle the football” is a neighborhood game, played with a football but with loose, undefined rules. The object of the game is to tackle the person with the football, who, in turn, attempts to avoid being tackled, either by running or by passing the ball to another, who then becomes the person the others attempt to tackle. There are no teams in the game, no well-defined boundaries, and no rules other than “tackle the ballcarrier.” The game was played in part of the Cronin yard and in the adjoining Norton backyard. It was a common game played in Earlville.

The plaintiff’s evidence indicated that after the game had continued for perhaps half an hour, it ended when one of the girls shouted, “Pizza’s ready.” At that time, many of the children went into the Cronin residence for refreshments and pizza, although some others stayed outside in the backyard. There were potato chips on a picnic table in the Cronin backyard. A couple of girls sat on the picnic table, while plaintiff sat on the ground nearby talking with them and with another friend. Plaintiff Willard Osborne sat with his back to the former playing area. While everyone had stopped playing “tackle the ball,” two persons, one being the defendant Victor Sprowls, continued to play catch with the football in the backyard. Willard Osborne, while seated on the ground near the table, saw Sprowls playing catch with someone else and running back and forth behind him.

Sometime later, in a matter of a few minutes, the unknown person playing catch with Victor Sprowls threw the football and Sprowls ran backwards to catch the ball. As he ran for the ball, he fell over, and onto, the plaintiff Willard Osborne, seated on the ground. As a result of the collision, Osborne suffered compression fractures of the LI and L3 vertebrae in his lower back. Suit was later filed seeking recovery for damages sustained in the accident.

The trial of the case proceeded upon two counts, one in negligence, for failure to keep a proper lookout and for negligence in running over the plaintiff, and the other for willful and wanton conduct. The willful and wanton count was directed out by the court, and the case went to the jury solely on the negligence theory. The jury found liability against Sprowls and assessed damages at $31,350. From the judgment, the defendant appeals.

The defense’s first argument, in seeking to reverse the judgment, is that, as a matter of law, the defendant owed no duty of ordinary care to the plaintiff while he was seated in the yard. The crux of the defense argument herein is that the collision which occurred was a natural incident to the game which was being played and that the risk was part of the game, just as flying pucks are a risk in hockey, foul balls in baseball, and players running out of bounds in football. The defense argues that the correct standard to be applied in this case would be that set forth in Nabozny v. Barnhill (1975), 31 Ill. App. 3d 212,334 N.E.2d 258. That case dealt with an injury to a soccer player as a result of being kicked by another player on the opposing team during the amateur soccer match. The court therein stated:

“[A] player is liable for injury in a tort action if his conduct is such that it is either deliberate, willful or with a reckless disregard for the safety of the other player so as to cause injury to that player, the same being a question of fact to be decided by a jury.” (31 Ill. App. 3d 212, 215.)

The focus of the court in Nabozny was whether the defendant had violated a safety rule of the sport designed to protect another’s safety. The court found a duty to refrain from conduct proscribed by the safety rules. (31 Ill. App. 3d 212, 215.) In announcing the rule, the court opined that it had “carefully drawn the rule e ” 0 to control a new field of personal injury litigation.” (31 Ill. App. 3d 212,215.) The defense requests application of the strict rule of Nabozny to the facts of the instant case and argues that since there were no safety rules in the “tackle the ball” game, there was no duty owed by the defendant to the plaintiff, except the duty to refrain from willful, wanton, or reckless conduct.

The difficulty with the defense argument with respect to Nabozny, and the rule announced therein, arises from the facts of the instant case. The rule has no application to the facts in this case. The injury suffered by Willard Osborne did not occur during the neighborhood athletic contest. Had it occurred during the game, we perceive that the rule of Nabozny, or a comparable rule, would have been properly applicable. However, in the instant case, the facts indicate that the game of “tackle the football” had ended. The plaintiff Osborne, as well as all other participants in that game, had ceased playing it. Some went into the Cronin house for pizza and drink. Several, including the plaintiff Osborne, sat by, or on a picnic table in the yard and talked. Two, including the defendant Victor Sprowls, struck up a game of “catch” with the football. Viewed in its aspects most favorable to plaintiff, the evidence indicates that while he was seated near the picnic table, Osborne was seated outside the previous field of play. Also, while there is evidence that he knew that “catch” was being played in the other part of the yard, there is no evidence that the two players involved, or the ball, came near to the picnic table area at any time prior to the fateful collision. Nor is there any indication that the plaintiff was watching the other two boys play catch as he sat on the ground. Briefly put, Willard Osborne was neither a participant in the game nor a spectator.

Thus, those cases dealing with participants and spectators are not controlling or applicable. Nabozny dealt with participants in an organized soccer game. Stewart v. D & R Welding Supply Co. (1977), 51 Ill. App. 3d 597, 366 N.E.2d 1107, also cited by the defense, concerned a softball umpire injured during a game of softball. The special rules developed for application to sports and sports’ contests do not have application here, where the evidence indicates that the game in which Osborne had participated had ended, and he was neither a participant nor a spectator in the game of “catch” being played by the defendant and another.

In the circumstances of this case, the duty owed plaintiff by defendant was to exercise ordinary care for his safety and the safety of others. There was no error in submitting the negligence count to the jury.

The second issue raised by the defense is whether the evidence demonstrates that the plaintiff Willard Osborne was guilty of contributory negligence as a matter of law. Ordinarily, the question of contributory negligence is one of fact for the jury. In the instant case, the defense argues that Osborne, as spectators in other sports, must be held to have knowledge of the risk involved in his presence near the game being played by others. Therefore, it is argued, given his knowledge of the risk, he was negligent in failing to exercise care for himself, such failure being the fact of sitting on the ground, instead of on the picnic table or in the house. Again, however, the facts in the case demonstrate the unacceptability of the defense position and argument. Willard Osborne sat in an area away from the previous game and near a picnic table and a dirt pile. It was not an area where he could reasonably be expected to anticipate that the defendant would come running. There was no indication, prior to the accident, that the game of catch was occurring or straying into the area around the picnic table where Osborne sat.

Thus, the evidence failed to show that the plaintiff ought reasonably to have been aware of a risk to himself from the game of “catch.” His only knowledge concerning the defendant’s activity was that he was playing catch in the area of the previous playing field, which did not include the area where he sat down. Also, it must be emphasized, that this is not a case where a spectator is watching a contest or game and can reasonably expect some risk to himself as a result of his position as a spectator. Willard Osborne was not a spectator to defendant’s game of “catch.” He had his back turned and was engaged in conversation with others, away from the principal area of that game. The spectator cases and rules do not apply to the facts of this case. The question of contributory negligence properly went to the jury.

The final argument put forth by the defense is that the “willful and wanton” standard is the correct standard for tort liability for a minor playing in a neighborhood game. We can agree with the argument that children, in their neighborhood games, must be allowed a greater margin of error than adults. Imposition of liability, and application of duties of conduct, must take into consideration the maturity of the game’s participants and the nature of the game. Something akin to the Nabozny standard would appear to be appropriate standard for children participants in a neighborhood game such as “tackle the football.” However, that case is not before us on this appeal. Here, the game had concluded and all had stopped playing it. As already noted, this case does not involve participants in a neighborhood game. Neither does it involve a spectator to a neighborhood game where that spectator was, or should have been, aware of a risk of injury from the game he was watching. Thus, application of special rules for athletic contests, or for children’s neighborhood games, is not appropriate in this case.

For the reasons stated, the judgment of the Circuit Court of La Salle County is affirmed.

Affirmed.

STENGEL, J., concurs.