Karas v. Strevell

• Decision Date: 29 December 2006
• Docket Number: No. 2-05-1218.,2-05-1218.
• Citation: 308 Ill.Dec. 81,860 N.E.2d 1163
• Parties: Robert KARAS, as Father and Next Friend of Benjamin S. Karas, a Minor, Plaintiff-Appellant, v. Joseph STREVELL, Russell Zimmerman, Naperville Central Redhawk Hockey Association, Amateur Hockey Association of Illinois, Inc., and Illinois Hockey Officials Association, Inc., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

860 N.E.2d 1163

308 Ill.Dec. 81

Robert KARAS, as Father and Next Friend of Benjamin S. Karas, a Minor, Plaintiff-Appellant, v. Joseph STREVELL, Russell Zimmerman, Naperville Central Redhawk Hockey Association, Amateur Hockey Association of Illinois, Inc., and Illinois Hockey Officials Association, Inc., Defendants-Appellees.

No. 2-05-1218.

Appellate Court of Illinois, Second District.

December 29, 2006.

Patrick L. Provenzale, Ekl Williams PLLC, Clarendon Hills, for Benjamin S. Karas, Robert Karas.

Matthew A. Arnold, Kenneth S. McLaughlin, Meyer, Kreuzer, Esp & Cores, Wheaton, for Joseph Strevell.

Michael Resis, Ellen L. Green, Bradley G. Rausa, SmithAmundsen LLC, St. Charles, for Russell Zimmerman.

Matthew D. Jacobson, Amy R. Miller, Swanson, Martin & Bell, LLP, Lisle, for Amateur Hockey Association of Illinois, Inc., Illinois Hockey Officials Association, Inc., Naperville Central Redhawk Hockey Association.

Justice O'MALLEY delivered the opinion of the court:

Plaintiff, Robert Karas (on behalf of his minor son, Benjamin Karas), appeals the trial court's dismissal, pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2004)), of his complaint, seeking recovery for an injury to his son, against defendants, Joseph Strevell, Russell Zimmerman, Naperville Central Redhawk Hockey Association (NCRHA), Amateur Hockey Association of Illinois, Inc. (AHAI), and Illinois Hockey Officials Association, Inc. (IHOA).

Plaintiff filed his second amended complaint against defendants on September 14, 2004, and we draw the facts of the case from the allegations stated therein. On January 25, 2004, Benjamin played in an organized hockey contest against NCRHA's junior varsity hockey team, which included defendants Strevell and Zimmerman. NCRHA was a member of AHAI, which promulgated and disseminated hockey contest rules, including a prohibition against checking from behind. At all times relevant to the complaint, the backs of all game jerseys for players on both teams had sewn above or between the players' numbers "the warning `STOP' to reinforce the prohibition" against checking from behind. During the January 25 contest, Strevell and Zimmerman checked Benjamin from behind while he was near the boards that formed the wall of the playing rink and while he was partially bent over and looking down with his head pointing toward the boards. The collision caused Benjamin's head to strike the boards and resulted in his serious injury.

During the relevant time period, NCRHA was responsible for coaching and teaching its players to abide by all hockey contest rules. On and before January 25, NCRHA failed to instruct its players to refrain from checking from behind and failed to discipline or sanction players who were known to check from behind. AHAI failed to instruct its member teams to prevent its players from checking opposing players from behind, failed to instruct officials to strictly enforce the prohibition against checking from behind, and failed to discipline or sanction players and teams known to engage in checking from behind. AHAI also failed to discipline, sanction, or control IHOA's "known and repeated" failures to enforce strictly the prohibition against checking from behind. Likewise, IHOA failed to instruct its member officials to strictly enforce the prohibition against checking from behind and failed to discipline or sanction officials for their known failure to strictly enforce the prohibition against checking from behind.

The first count of plaintiff's second amended complaint sought damages against Strevell and Zimmerman for willful and wanton conduct causing Benjamin's injury. Counts II, IV, and VI sought damages against NCRHA, AHAI, and IHOA for their negligence in connection with Benjamin's injury. Counts III, V, and VII sought damages against NCRHA, AHAI, and IHOA for their willful and wanton conduct leading to Benjamin's injury. Count VIII of the second amended complaint alleged a civil conspiracy between AHAI and IHOA that led to Benjamin's injury.

Defendants filed motions to dismiss pursuant to section 2-615 of the Code, and the trial court dismissed the first count on March 14, 2005, and dismissed counts II through VII on July 1, 2005. The trial court granted plaintiff leave to replead count VIII to allege civil conspiracy with more specificity, and plaintiff thereafter filed a third amended complaint, which amended the final count and listed each of the dismissed counts with a statement that each had been dismissed. The third amended complaint charged civil conspiracy as follows, in pertinent part:

"12. Prior to January 25, 2004, [AHAI] had made changes to its `checking from behind rule' as a result of severe injuries sustained by * * * players * * *. Materially, the rule was changed such that the penalty for an infraction of the rule was increased to an ejection of the violating player and a 3 game suspension.

13. Prior to January 25, 200[4], but after the aforementioned change of the rule, [IHOA] willfully failed to call the checking from behind penalty during AHAI sanctioned hockey contests on more than one occasion because [IHOA] * * * believed * * * that the resultant penalty as set forth in the modified rule was too harsh.

14. Thereafter, but prior to January 25, 2004, because [IHOA] willfully refused to call players for violating the checking from behind rule on more than one occasion, [AHAI] agreed to reduce the penalty * * * ostensibly in order to promote [IHOA] to call all violations of the rule.

* * *

16. On and before January 25, 2004, [AHAI and IHOA] * * * agreed to not enforce the aforesaid checking from behind rule during games that occurred under the authority of the rule of [AHAI]."

On November 7, 2005, the trial court dismissed the final count of plaintiff's complaint. Plaintiff timely appeals.

A section 2-615 motion to dismiss attacks the legal sufficiency of the complaint. Willmschen v. Trinity Lakes Improvement Ass'n, 362 Ill.App.3d 546, 549, 298 Ill.Dec. 840, 840 N.E.2d 1275 (2005). Illinois is a fact-pleading jurisdiction that requires a plaintiff to present a legally and factually sufficient complaint, and the plaintiff must allege sufficient facts to state all of the elements of the asserted cause of action. Purmal v. Robert N. Wadington & Associates, 354 Ill. App.3d 715, 720, 289 Ill.Dec. 578, 820 N.E.2d 86 (2004). Thus, "[t]he question to be decided when ruling on a section 2-615 motion to dismiss is whether the plaintiff has alleged sufficient facts which, if proved, would entitle the plaintiff to relief." Doe v. Chicago Board of Education, 339 Ill.App.3d 848, 853, 274 Ill.Dec. 872, 791 N.E.2d 1283 (2003). "In reviewing the sufficiency of the complaint, the court must accept as true all well-pleaded facts in the complaint and all reasonable inferences that can be drawn from those facts." Willmschen, 362 Ill.App.3d at 549, 298 Ill. Dec. 840, 840 N.E.2d 1275. "However, conclusions of law and conclusory factual allegations not supported by allegations of specific facts are not deemed admitted." Purmal, 354 Ill.App.3d at 720, 289 Ill.Dec. 578, 820 N.E.2d 86. The sufficiency of a complaint presents a question of law, which receives de novo review. Doe, 339 Ill.App.3d at 853, 274 Ill.Dec. 872, 791 N.E.2d 1283. Because all of plaintiff's arguments challenge only the trial court's conclusions that each of the counts of his complaint was legally insufficient, our review of all issues in this case is de novo.

Plaintiff first argues that the trial court erred in dismissing the first count of his complaint, because he alleged sufficient facts to state a cause of action against Strevell and Zimmerman. We agree.

There is no separate tort of willful and wanton conduct. Ziarko v. Soo Line R.R. Co., 161 Ill.2d 267, 274, 204 Ill.Dec. 178, 641 N.E.2d 402 (1994). Normally, a person owes a duty of ordinary care to guard against injuries to others that may result as a reasonably probable and foreseeable consequence of negligent conduct. Pfister v. Shusta, 167 Ill.2d 417, 420, 212 Ill.Dec. 668, 657 N.E.2d 1013 (1995). A claim sounding in negligence thus arises where a plaintiff alleges "the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach." Ward v. K mart Corp., 136 Ill.2d 132, 140, 143 Ill.Dec. 288, 554 N.E.2d 223 (1990). However, under a judicially created exception to the standard of ordinary care, voluntary participants in contact sports are not liable for injuries caused by simple negligent conduct. Pfister, 167 Ill.2d at 420, 212 Ill.Dec. 668, 657 N.E.2d 1013 (reaffirming holdings of previous appellate court cases creating and applying the rule). Instead, they owe each other a duty to refrain only from willful and wanton or intentional misconduct, and they are liable for injuries resulting from a breach of that limited duty. Pfister, 167 Ill.2d at 420-21, 212 Ill.Dec. 668, 657 N.E.2d 1013.¹

The label of willful and wanton conduct has developed in Illinois to describe a hybrid between acts considered negligent and behavior found to be intentionally tortious. Ziarko, 161 Ill.2d at 275, 204 Ill.Dec. 178, 641 N.E.2d 402. Willful and wanton conduct includes acts performed intentionally, but, unlike intentionally tortious behavior, willful and wanton conduct may also be proven where the acts have been less than intentional. Ziarko, 161 Ill.2d at 274, 204 Ill.Dec. 178, 641 N.E.2d 402. At the other end of the continuum between intentional and negligent conduct, it has been acknowledged that willful and wanton conduct shares some characteristics with negligent conduct and that there is a "thin line" between simple negligence and willful and wanton acts. Ziarko, 161 Ill.2d at 275, 204 Ill.Dec. 178, 641 N.E.2d 402, citing Burke v. 12 Rothschild's Liquor Mart, Inc., 148 Ill.2d 429, 451, 170 Ill.Dec. 633, 593 N.E.2d 522 (1992), and Mattyasovszky v. West Towns Bus Co., 61...