Illinois Appellate Court Clarifies "Contact Sports" Exception in Tort Law

In Karas v. Strevell, 2006 WL 34849138 (Ill.App. Dec. 29, 2006), an Illinois appellate court has offered an extensive (53-page) discussion of the state and scope of the so-called "contact sports" exception in tort law, which provides that co-participants in "contact sports" have no cause of action for injuries sustained due to the negligence of other participants (although "wanton and willful" or reckless misconduct remain actionable). This decision is of particular interest in that it interprets and expands upon Nabozny v. Barnhill, 334 N.E.2d 258 (Ill. App. Ct. 1975), a leading case on the tort liability of sports participants that has found its way into a number of sports law casebooks. I have written on the subject of co-participant liability in posts such as this one; Greg also covered the issue in posts like this one.

In the new case, Karas, the court confronted an action filed on behalf of a youth hockey player against two other players and the hosting league, among other defendants. The plaintiff was checked from behind in violation of a league rule by two opponents; at the time of the contact, plaintiff was near the boards and partially bent down; the collision caused plaintiff's head to strike the boards and resulted in serious injuries. Notably, on the back of the plaintiff's jersey appeared the word, "STOP," to reinforce the league's no-checking rule.

Against the players, plaintiff claimed recklessness and wanton and willful misconduct

Plaintiff does not allege a mere rules violation, but, given [his] vulnerable position and the "STOP" warnings on players' jerseys, that [the defendant players] went beyond conduct ordinarily accepted during the course of competition and into willful and wanton conduct. . . .

[T]he factual allegations above meet the requirements for pleading a cause of action based on willful and wanton condcut. Plaintiff alleged not only that [defendant players] broke the rules of hockey, but that they broke a rule with such special emphasis that players' jerseys were altered to reinforce it. Plaintiff also alleged circumstances surrounding [defendants'] actions--they allegedly checked [plaintiff] when he was defenseless and in a position of acute vulnerability--that evince a conscious disregard for his safety.

The court further noted that full development of a factual record -- particularly with respect to the location of the puck at the time the defendants struck the plaintiff -- might justify a conclusion that defendants did not act in a wanton and willful manner.

There's a lot more good stuff in the opinion about co-participant liability on which I don't have room to comment here.

Against the league, plaintiff claimed negligence, arguing that the hockey league had failed to enforce aggressively its no-checking rule. The league argued that the contact sports exception should apply to its liability as well, and on that basis the trial court had dismissed those claims. On appeal, plaintiff argued that the league and other organizational defendants, not technically "participants" in the hockey game, owed him a duty of ordinary care actionable in negligence.

After wading through the morass of whether the contact sports exception is a "no duty" rule or an "assumption of risk" rule, and after noting the interplay between the two, the court opined that a participant in a sporting event is barred from suing a non-participant for mere negligence:

[T]he consent granted by each participant is not specific to the similarly situated participants, but instead to the risks associated with the game, regardless of whether the risks stem from co-participants or some other source. . . .

[B]ased on assumption of the risk principles, it stands to reason that the contact sports exception should be extended to protect the organizers and coaches from liability for negligence leading to player conduct that cannot otherwise form a basis for liability due to the contact sports exception.

I find the court's reasoning on this point rather odd. The court seems to complicate tort law considerations by talking about organizational "negligence leading to injuries caused by other parties' negligence," versus "negligence leading to injuries caused by others parties' recklessness." The court would bar a plaintiff's suit under the former theory, but allow it under the latter. In effect, the court is saying that a non-participant owes a general duty to avoid negligence, but not negligence leading to injuries caused by other-party negligence.

Huh?

Negligence of 3rd parties can be addressed using ordinary tort principles of forseeability of intervening causes. Indeed, the court's approach seems to upend the normal concept of "foreseeability." The court allows actions against a league that negligently fails to enforce its rules where the failure to enforce those rules is a "but for" cause of a player's recklessly injuring another player. At the same time, the court would disallow a case where a league negligently fails to enforce its rules where that failure is the "but for" cause of a player's negligently injuring another player. What is odd about this is that, ordinarily, an intervening act is less foreseeable -- and therefore more likely to sever the chain of proximate cause -- when it is reckless or intentional, rather than simply negligent. The court's position makes it easier to recover for the less foreseeable intervention.

Some of this morass could be avoided if plaintiffs simply allege recklessness by the non-participant dfendants. Indeed, this plaintiff did so, but as the court justifiably concludes, the plaintiff's allegations with respect to the league did not amount to wanton or willful misconduct.

Posted in: