by John J. Malm & Jason P. Schneider

Transcription

1 by John J. Malm & Jason P. Schneider Emerging concerns about concussion-induced brain illnesses have spurred debate about the safety of participants in contact sports. Most notably, chronic traumatic encephalopathy, or CTE, 1 a degenerative brain disease, has recently been diagnosed in a number of athletes with a history of concussion injuries. Questions about the safety of contact sports come at a time when reports of serious injuries like concussions appear to be on the rise. 2 One recent study estimates that as many as 1.6 to 3.8 million concussion injuries are reported by participants in contact sports and activities each year. 3 Because it is believed that 50 percent of all concussion injuries likely go unreported, previous estimates concerning the frequency of concussion injuries may be relatively low. 4 With increasing concerns about safety, the legal responsibilities owed by sports organizations toward youth, collegiate, and professional athletes should be considered. This article suggests some practical insights for counsel evaluating a sports injury claim by considering circumstances in which the contact sports rule should not be applied to protect an organizational defendant from liability. I. The Contact Sports Rule The contact sports rule is an exception to the general duty to act with ordinary care, and applies only to sports with physical contact. If the contact sports exception is applicable, the duty of care is to refrain from willful and wanton or intentional conduct. 5 In full-contact sports, the court applies a heightened standard, and the duty is to refrain from conduct totally outside the range of the ordinary activity involved in the sport. 6 The contact sports exception attempts to strike a 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 certain types of conduct. 7 Prior to 2008, the contact sports rule had only been applied to co-participants, and the duty was to refrain from willful and wanton conduct. Courts have reasoned that the ordinary care standard, if applied between sports participants, could alter the way sports are played or discourage participation by athletes. 8 In 2008, the Illinois Supreme Court reexamined the contact sports rule, and in a matter of first impression, decided whether the rule could be applied to organizational defendants. 9 Benjamin Karas was a member of a high school hockey club s junior varsity hockey team, and a member of an amateur hockey association. 10 The rules prohibited body checking from behind and each player wore a sign that read, STOP, which was sewn on the back of their jersey to reinforce the rule. 11 Karas was seriously injured when checked from behind, into the boards, by two opposing players. 12 The plaintiff filed a complaint alleging both negligence and willful and wanton conduct against the two opposing players, the governing association of the officials, and the amateur hockey league. 13 Plaintiff further alleged that the league s rule against body checking from behind was not being enforced. 14 The court first considered how the contact sports exception applies to co-participants, noting that the court must consider the nature of the sport at issue and determine, based on its inherent risks, whether it is a contact sport. 15 When physical contact among co-participants is inherent in the sport, then a player owes no duty to avoid ordinary negligence. 16 The court distinguished between contact and full-contact sports. 17 For contact sports, co-participants owe a duty to refrain from willful and wanton or intentional conduct. For full-contact sports, the Karas court held that the traditional definition of willful and wanton is unworkable, and would have a chilling effect on the sport. 18 The court adopted a standard that a participant breaches a duty of care to a co-participant in a full-contact sport 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. 19 This line allows for a recovery for extreme misconduct while foreclosing liability for infractions of the rules if the action is inherent as part of the game. 20 The court noted that nothing in the present case rose to the level of being totally outside the range of ordinary activity in ice hockey. 21 For the organizational defendants, the court held that whether the contact sports exception applies to 30 Trial Journal Volume 18, Number 2 l Summer 2016

2 nonparticipant defendants is a policy determination. 22 The court must consider the circumstances of the sport and its inherent risks, the relationships of the parties to the sport and each other, and whether imposing broader liability on the defendant would harm the sport or lead to it being changed. 23 The court also focused on whether the conduct involved subjective decision-making that occurred during a fast moving game, or split-second decision making. 24 If the contact sports exception applies, then the plaintiff must prove that the defendant intended to cause the injury or engaged in conduct totally outside the range of the ordinary activity of the sport. 25 II. Limits of the Contact Sports Rule A. Is the activity in question a contact sport or full-contact sport? The standard of care will vary greatly depending on whether the sport in question is either a noncontact, contact, or full-contact sport. Injuries in non-contact sports, like golf, are analyzed under a negligence standard. 26 For sports with contact, a distinction has been drawn between contact sports, such as a dormitory game of kick the can, and full-contact sports, such as tackle football. 27 In contact sports, some bodily contact is inevitable, but not the objective of the game. 28 Courts have found that can kicking, floor hockey, and softball are contact sports. 29 A sport will only be deemed a full-contact sport where the physical contact is not simply an unavoidable by-product of vigorous play, but a fundamental part of the way the game is played. 30 The court will look to whether the players deliberately set out to engage in physical contact with their opponents, thereby subjecting themselves to injuries. 31 Football and ice hockey are considered full-contact sports. 32 If the activity in question is a contact sport, a lower standard of care is applied. 33 The duty owed is to refrain from willful and wanton or intentional conduct. 34 Under this standard, a person owes a duty to refrain from conduct that shows utter indifference or a conscious disregard for the safety of others. 35 If the sport is a full-contact sport, then a heightened standard is applied, and a person owes a duty to refrain from conduct totally outside the range of activity involved in the sport or intentional conduct. 36 Under this heightened standard, a foul such as body checking, even though against the rules, is likely not outside the range of activity involved in the sport. 37 B. The contact sports exception should not apply when the alleged conduct does not involve splitsecond decisions. The contact sports exception does not automatically apply to organizational defendants, even in contact or fullcontact sports. 38 The court must make a policy determination before applying the rule. The determination rests on confronting the contact continued on page 32 Volume 18, Number 2 l Summer 2016 Trial Journal 31

3 confronting the contact continued from page 31 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. 39 When the actions of an organizational defendant do not involve inherently subjective decisions made during a fast-moving game, then a negligence standard is more appropriate. 40 In Gvillo v. DeCamp, the plaintiff, a softball player, was injured when a player-defendant collided with the plaintiff during a game. 41 The plaintiff alleged, inter alia, the organizational defendants set up the softball field in an unreasonably dangerous manner. 42 The trial court applied the contact sports exception and entered summary judgment for the organizational defendants. 43 On review, the appellate court in Gvillo declined to apply the contact sports rule. 44 The court explained that the defendant s decisions were made in setting up the field, not by making coaching or officiating decisions during the middle of a fast moving game. 45 Unlike decisions made while coaching or refereeing, the decision was neither inherently subjective nor made in a split-second. 46 Further, the court noted that imposing liability against an organizational defendant under an ordinary negligence duty of care, in this instance, would not discourage participation in softball. 47 C. The contact sports exception should not apply when the injured party is not actively participating in the sport. The contact sports rule will not be applied where the relationship of the parties, to the sport or each other, is not sufficient to warrant the application of the rule. In Weisberg v. Chicago Steel, the court refused to apply the contact sports rule where an athletic trainer was struck in the face by a hockey puck. The trainer was refilling water bottles in the bench area of the ice arena when players began shooting pucks at the water bottles. 48 The trainer, who was contracted to provide services to the entire ice arena (not solely the hockey team) was not a voluntary participant and not affiliated with the team. 49 The court held the contact sports rule did not apply because the trainer did not bear a sufficient relationship to either the sport of hockey or the players themselves, and he was not actively participating in the game. 50 Unlike body checking, shooting pucks at water bottles located in the bench area, as opposed to shooting pucks at a goal or at other targets within the ice rink, is not an inherent part of the sport of hockey. 51 The Weisberg court noted that imposing a negligence standard would not place an unreasonable burden on vigorous participation in sports. 52 Similarly, in Pickel v. Springfi eld Stallions, Inc., the court found that the contact sports exception should not apply in cases in which a spectator, rather than a participant, is injured. 53 In Pickel, 32 Trial Journal Volume 18, Number 2 l Summer 2016

4 a spectator attending an indoor football game was injured when a player ran out of bounds and over a separating wall, colliding with her. 54 Because the woman was not participating in the game, the contact sports exception did not apply. In noting the difference between spectators and players, the court stated [f]or the sake of the game, it is desirable that football players tackle, push, and block one another with full energy and uninhibited vigor, but few would argue that collisions between the players and fans do the game any good. 55 D. The contact sports exception may not apply to an organizational defendant when sports injuries involve young and inexperienced children. In cases involving injuries to children, the coaches, instructors, and organizations owe a duty of reasonable care when entrusted with the supervision of children. 56 This has been the traditional standard applied in cases involving young children. In Castro v. Chicago Park Dist., a minor child baseball player was injured when a foul ball struck him while he sat on the bench. 57 The plaintiff filed a complaint against the park district, alleging that an unsafe opening existed between the end of a backstop fence and the beginning of another fence in front of the player s bench. 58 The park district in turn filed a third-party complaint against the president of the baseball field. 59 The court found that [w]hen children are entrusted to the care of an organization, it must act with due care and caution for the safety of its participants and that when children are involved, there is an obligation to provide greater caution and vigilance than would be sufficient for an adult. 60 The court expressly noted that the league administrator owed a duty because children ages 9-13 or were involved. 61 In applying the traditional duty factors, the court found the foreseeability of injury was likely, and was implicitly acknowledged by the league administrator through the implementation of rules and the purchase of safety equipment. 62 Other courts have similarly recognized that when organizations are entrusted with the supervision of children, a duty of reasonable care is owed. In Crohn v. Congregation B Nai Zion, a seven-year-old was struck in the face with a baseball bat swung by a tenyear-old at a summer day camp. 63 The Crohn court held the day camp owed a duty to the minor to provide a safe place and adequate supervision. 64 Consistent with this reasoning, the court in Loosier v. Youth Baseball and Softball, Inc., of Benton, Franklin Co., held that organizers of baseball or softball games have a duty to supervise the activity while players are on the field actively participating in the sport and entrusted by their parents to their coaches. 65 There is ambiguity whether these holdings will survive post-karas, but there is a compelling argument that the competing duty to supervise children confronting the contact continued on page 34 Volume 18, Number 2 l Summer 2016 Trial Journal 33

5 confronting the contact continued from page 33 supersedes the contact sports rule. Justice Kilbride, specially concurring in the Karas decision, sought to clarify the majority s duty analysis with respect to age and experience, which was absent from the majority opinion. 66 He stated [t]he age and experience of the participants must play a role in considering the duty owed by adult coaches and adult-organized sporting organizations. 67 Justice Kilbride suggested that the analysis concerning the relationship of the parties offered an opportunity for the age and experience of the participants to be considered. 68 He further stated 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. 69 We cannot legitimately ignore younger athletes greater physical vulnerability or their limited autonomy from their coaches and sporting organizations 70 E. The contact sports exception may not apply when there is a failure to provide safety equipment. Organizers of sporting events owe a duty of reasonable care to provide effective safety equipment to student sport participants. In Lynch v. Bd. of Ed. of Collinsville Community, a student was injured when she was struck in the head during a powderpuff football game and brought suit against the school district. 71 The plaintiff was not wearing any protective head gear at the time of her injury. 72 The school averred it was absolved from liability because it did not provide any defective equipment; therefore, it was not liable for merely failing to provide equipment. 73 The court disagreed and held the school district owed an affirmative duty to furnish safety equipment. 74 The court stated where students are engaging in school activities, the school district has an affirmative duty to furnish equipment to prevent serious injuries. 75 At a minimum, the school district should have furnished helmets and faceguards in football because head injuries are likely. 76 It should be noted that the failure by coaches and administrators to supply safety equipment may be a more relevant factor in cases where the participants are children, and supervision is an important aspect of the relationship among players, parents, and coaches. III. Other considerations In considering whether to pursue a sports injury claim, several other possible defenses should be noted. For example, the Sports Volunteer Immunity Act provides that a volunteer coach who provides services without compensation shall only be civilly liable if the conduct of such person falls substantially below the standards generally practiced and accepted, and it is shown that such person did an act or omitted the doing of an act which such person was under a recognized 34 Trial Journal Volume 18, Number 2 l Summer 2016

6 duty to another to do, knowing or having reason to know that such act or omission created a substantial risk of actual harm to the person or property of another. 77 Defendants will likely raise affirmative defenses, such as assumption of risk or evidence of a signed liability waiver. Depending on where the incident occurred, the injured claimant may also face governmental tort immunity or immunity under the Recreational Use of Land and Water Areas Act. 78 Finally, there are statutes which specifically limit the liability of facility operators under The Baseball Facility Liability Act or The Hockey Facility Liability Act. 79 IV. Conclusion Although the contact sports rule has been extended to protect organizational defendants, including coaches, instructors, and referees, from ordinary negligence, application of the contact sports rule is not absolute. The restraints of civilization must accompany every athlete onto the playing field. Before applying the rule, a court must first engage in a fact inquiry to determine whether the sport in question is a contact sport. The court does this by considering the circumstances of the sport and its inherent risks, the relationships of the parties to the sport and each other, and whether imposing broader liability on the defendant would harm the sport or lead to it being changed. If the activity can be defined as a contact sport, then the rule should not be applied to protect organizational defendants when the actions of coaches or others do not involve split-second decisionmaking, when the activity at issue is not included within the normal range of activity for that sport, when the injured party is not actively participating in the contact sport, when children entrusted to the care of an organization are not supervised, or when a coaches or administrators fail to ensure the proper use of safety equipment. 1 Endnotes 2 Treatment for Concussions in Young People on the Rise, US News & World Report, Dec. 22, 2014, The Epidemiology of Sport- Related Concussion, Clin Sports Med Jan; 30(1): 1 17., NIHMSID: NIHMS229700, Daniel H. Daneshvar, MA, MD / PhD Graduate Student, Christopher J. Nowinski, Co-Director, Co-Founder,b,h Ann McKee, Co- Director, Associate Professor of Neurology and Pathology,b,i and Robert C. Cantu, MD, Co-Director, Clinical confronting the contact continued on page 36 Volume 18, Number 2 l Summer 2016 Trial Journal 35

7 confronting the contact continued from page 35 Professor, Chief of Neurosurgery Service, Chairman, Director of Sports Medicine, Co-Director, Co-Founder, articles/pmc /. 4 American Medical Society for Sports Medicine position statement: concussion in sport, Harmon, Kimberly G.; Drezner, Jonathan A.; Gammons, Matthew; Guskiewicz, Kevin M.; Halstead, Mark; Herring, Stanley A.; Kutcher, Jeffrey S.; Pana, Andrea; Putukian, Margot, 2013 Feb;47(3): nih.gov/pubmed/ Pickel v. Springfi eld Stallions, Inc., 926 N.E.2d 877, 882, 398 Ill.App.3d 1063, 1067 (4 th Dist. 2010). 6 at Pfi ster v. Shusta, 167 Ill.2d 417, 426, 657 N.E.2d 1013, 1018 (1995). 8 Karas v. Strevell, 227 Ill.2d 440, 444, 884 N.E.2d 122, 126 (2008). 9 at at at at at at at 459. The standard balances the concern that certain sports, with physical play, may foreseeably result in injuries. Yet, the restraints of civilization must accompany every athlete on the field. Nabonzny v. Barnhill, 31 Ill.App.3d 212, 215, 334 N.E. 2d 258 (1 st Dist.1975). 20 Karas, 227 Ill.2d at at at at at Zurla v. Hydel, 289 Ill.App.3d 215, 224 Ill. Dec. 166, 681 N.E.2d 148 (1st Dist. 1997). 27 Pickel v. Springfi eld Stallions, Inc., 926 N.E.2d 877, 882, 398 Ill.App.3d 1063, 1067 (4 th Dist. 2010) Gvillo v. DeCamp Junction, Inc., 2011 IL App (5th) , 12, 959 N.E.2d 215, 218. Pfi ster v. Shusta, 167 Ill.2d 417, 212 Ill. Dec. 668, 657 N.E.2d 1013 (1995), 30 Givillo, 959 N.E.2d at Pickel v. Springfi eld Stallions, Inc., 926 N.E.2d 877, 882, 398 Ill.App.3d 1063, 1067 (4 th Dist. 2010) Karas, 167 Ill.2d at 445. In the Karas case, the court found the complaint did not allege conduct totally outside the activity of the sport, noting that plaintiff did not claim that the defendants had completely failed to enforce the rules. 38 at Givillo, 959 N.E.2d at at 216. How can YOU GET INVOLVED in ITLA? Take advantage of the many membership bene ts included with your ITLA membership. Amicus Curiae - Extensive volunteer efforts in ling friend of the court briefs at the Supreme Court level. Civil Practice & Rules - Generally concerned with the Civil Practice Act and given wide latitude to cover questions relating to legislation, rules and other issues. Offers proposals to the Supreme Court Rules Committee. Legislative - Actively involved in ITLA s legislative efforts, key contact list, as well as proposed and pending legislation. Medical Negligence - Actively involved in issues relating directly to medical negligence. Product Liability & Insurance Law - Issues relating directly to product liability. Makes recommendations as to how insurance law issues could be modi ed through rule or legislation. Workers Compensation - Studies proposed changes by the Illinois Workers Compensation Commission and the legislature. Plans Workers Compensation Seminar and authors Workers Compensation Trial Notebook. Young Lawyers Division - Established to attract and engage young lawyers and law students as well as to promote membership and provide social opportunities for those practicing less than 10 years. Call ITLA today to join a committee. 36 Trial Journal Volume 18, Number 2 l Summer 2016

8 43 44 at Weisberg v. Chicago Steel, 397 Ill. App.3d 310, 922 N.E.2d 489, 337 Ill. Dec. 366 (2 nd Dist. 2009). 49 at at at at Pickel v. Springfi eld Stallions, Inc., 926 N.E.2d 877, 398 Ill.App.3d 1063 (4 th Dist. 2010). 54 at at Castro v. Chicago Park Dist., 178 Ill. App.3d 348, 353 (1st Dist. 1988). 57 at at at at Crohn v. Congregation B Nai Zion, 317 N.E.2d 637, 641 (1st Dist. 1974) Loosier v. Youth Baseball and Softball, Inc., of Benton, Franklin County, 491 N.E.2d 933, 937 (5th Dist. 1986). 66 Karas, 167 Ill.2d at at Lynch v. Bd. of Ed. of Collinsville Community Unit Dist. No. 10, 412 N.E.2d 447, 450 (Ill. 1980) ILCS 80/1 (West 2012) ILCS 65/ ILCS 38/ ILCS 52/1. John J. Malm is a Naperville trial lawyer who has successfully overcome the contact sports rule in cases brought against organizational defendants. John has worked to improve safety guidelines for youth baseball, having reached a con dential settlement on behalf of the family of a child who was fatally injured in a pre-game warm-up. He recently won a jury verdict on behalf of a spectator who was seriously injured by a defective batting cage during a state nals baseball tournament. His rm represents spectators and participants injured or killed as a result of negligence by sports organizations. Jason P. Schneider is a trial lawyer with the personal injury law rm of John J. Malm & Associates in Naperville. Mr. Schneider has successfully overcome the contact sports rule in youth sports injury litigation. Most recently, he was able to hold a martial arts facility responsible after a child was injured by an adult instructor during a practice. Volume 18, Number 2 l Summer 2016 Trial Journal 37