Keller By and Through Keller v. Mols

• Decision Date: 27 May 1987
• Docket Number: Nos. 85-3561,86-2195,s. 85-3561
• Citation: 108 Ill.Dec. 888,509 N.E.2d 584,156 Ill.App.3d 235
• Parties: , 108 Ill.Dec. 888 Robert KELLER, a minor, By and Through his mother and next friend, Judith KELLER, Plaintiff-Appellant, v. Ralph MOLS, Jr., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 584

509 N.E.2d 584

156 Ill.App.3d 235, 108 Ill.Dec. 888

Robert KELLER, a minor, By and Through his mother and next friend, Judith KELLER, Plaintiff-Appellant, v. Ralph MOLS, Jr., Defendant-Appellee.

Nos. 85-3561, 86-2195.

Appellate Court of Illinois First District, Third Division.

May 27, 1987.

Barclay, Damisch & Sinson, Ltd, Chicago (George D. Maurides, of counsel), for plaintiff-appellant.

Clausen Miller Gorman Caffrey & Witous, P.C., Chicago (James T. Ferrini, Mary C. O'Connor, Paul D. Sheldon, of counsel), for defendant-appellee.

Justice WHITE delivered the opinion of the court.

Plaintiff, 14-year-old Robert Keller, while playing goalie in a game of floor hockey with his younger brother and two neighbor boys, was struck in the eye by a plastic puck shot by defendant, 13-year-old Ralph Mols, Jr. Keller, through his mother and next friend, Judith Keller, filed a complaint naming as defendants both Ralph and his parents, whose patio was the site of the game. Plaintiff claimed that defendant was negligent in shooting a hockey puck in the direction of a person who was not wearing protective equipment, and that his parents were negligent in permitting neighborhood children to play floor hockey on their property and in failing to warn them of the dangers of playing the game without protective equipment.

The trial court granted summary judgment for defendant's parents. On appeal of that judgment, we declined to impose a duty of care on defendant's parents and affirmed the judgment in their favor. (Keller v. Mols (1984), 129 Ill.App.3d 208, 84 Ill.Dec. 411, 472 N.E.2d 161.) Though our analysis in the earlier appeal focused on the burden to be placed on parents in similar situations, the trial court ruled that our decision was the law of the case on the issue of whether the parties were participating in a "game" as defined in Oswald v. Township High School Dist. No. 214 (1980), 84 Ill.App.3d 723, 40 Ill.Dec. 456, 406 N.E.2d 157. In Oswald, this court held that in some sports activities, participants could be liable to each other only for reckless or wanton conduct, not for mere negligence. In the case at bar, the trial court, considering the issue of the application of Oswald foreclosed by our opinion, granted summary judgment for defendant on the negligence claim. Plaintiff amended his complaint to allege willful and wanton conduct by defendant. The trial court granted summary judgment for defendant on that complaint also, stating that there was "not a scintilla" of evidence supporting a claim of willful or wanton conduct. Plaintiff contends that neither grant of summary judgment was proper.

Both parties agree that the sufficiency of plaintiff's negligence complaint is governed by Oswald. Plaintiff interprets that case to preclude negligence liability only in cases where the participants in a sporting event are organized and coached, and to allow negligence claims where such structure is absent. He argues that the absence or presence of the structure described in Oswald is a factual issue not resolved by our prior decision in this case, and that the issue should be determined by a jury, not by summary judgment.

We find no support for plaintiff's interpretation. Though Oswald quoted language from Nabozny v. Barnhill (1975), 31 Ill.App.3d 212, 334 N.E.2d 258, which referred to training, coaching and a recognized set of rules, Oswald's holding was not confined to strictly structured activities:

While Nabozny held that a recognized safety rule placed a duty on all players in a soccer game to refrain from conduct proscribed by the rule (citation), we find nothing in that case supportive of plaintiff's contention that the proof of ordinary negligence will sustain an action for injury to a player where the violation of a safety rule is...