Lestina v. West Bend Mut. Ins. Co.

• Decision Date: 16 June 1993
• Docket Number: No. 91-3030,91-3030
• Parties: , 55 A.L.R.5th 863 Robert F. LESTINA, Plaintiff-Respondent, v. WEST BEND MUTUAL INSURANCE COMPANY and Leopold Jerger, Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 28

501 N.W.2d 28

176 Wis.2d 901, 55 A.L.R.5th 863

Robert F. LESTINA, Plaintiff-Respondent, v. WEST BEND MUTUAL INSURANCE COMPANY and Leopold Jerger,

Defendants-Appellants.

No. 91-3030.

Supreme Court of Wisconsin.

Argued March 3, 1993.

Decided June 16, 1993.

For the plaintiff-respondent there was a brief (in the Court of Appeals) by Dean P. Laing and O'Neil, Cannon & Hollman, S.C., Milwaukee and oral argument by Mr. Laing.

SHIRLEY S. ABRAHAMSON, Justice.

This is an appeal, from a judgment of the circuit court for Waukesha County, Patrick L. Snyder, Circuit Judge. The case comes to this court on certification by the court of appeals pursuant to sec. 809.61, Stats.1991-92. The sole question presented by the certification is "what is the standard of care in Wisconsin for a [recreational] sports player who is alleged to have caused injury to another player during and as part of the [recreational team contact sports] competition." The circuit court determined that negligence was the governing legal standard. For the reasons set out below, we conclude that the rules of negligence govern liability for injuries incurred during recreational team contact sports. Accordingly, we affirm the judgment of the circuit court.

I.

Robert F. Lestina, the plaintiff, filed this personal injury tort action against Leopold Jerger, the defendant, and Jerger's homeowner's insurer, West Bend Mutual Insurance Company, after the plaintiff was injured in a collision with the defendant. The collision occurred during a recreational soccer match organized by the Waukesha County Old Timers League, a recreational league for players over the age of 30.

The plaintiff (45 years of age) was playing an offensive position for his team and the defendant (57 years of age) was the goalkeeper for the opposing team on April 20, 1988, when the injury occurred. Shortly before the plaintiff was injured, he had scored the first goal of the game. After his goal the plaintiff regained possession of the ball and was about to attempt a second goal when the defendant apparently ran out of the goal area and collided with the plaintiff. The plaintiff asserted that the defendant "slide tackled" him in order to prevent him from scoring. ¹ Although slide tackles are allowed under some soccer rules, this league's rules prohibit such maneuvers to minimize risk of injury. The defendant claimed that the collision occurred as he and the plaintiff simultaneously attempted to kick the soccer ball.

The plaintiff seriously injured his left knee and leg in the collision and commenced this action, alleging that the defendant's conduct was both negligent and reckless. The defendant moved for summary judgment on the negligence issue, asserting that the plaintiff's allegations of negligence were insufficient as a matter of law to state a cause of action for injuries sustained during a recreational team contact sports competition. Relying on Ceplina v. South Milwaukee School Board, 73 Wis.2d 338, 243 N.W.2d 183 (1976), the circuit court denied the summary judgment motion.

Thereafter the parties agreed to limit the trial to the issue of negligence and to preserve the right to appeal regarding the appropriateness of the negligence standard. The parties also stipulated the amount of damages to be awarded the plaintiff on the basis of the jury determination of the defendant's negligence.

After the jury returned a unanimous verdict finding the defendant 100% causally negligent, the defendant filed motions raising, among other issues, the question whether negligence was the appropriate legal standard. The circuit court denied the post-verdict motions and entered judgment in favor of the plaintiff. The defendant appealed one issue to the court of appeals--whether negligence was the appropriate legal standard in this case. The court of appeals certified the cause to this court.

II.

This case presents a single question of law: is negligence the standard governing the conduct of participants in recreational team contact sports? We review this question of law independently of the decision of the circuit court.

Relying on Ceplina v. South Milwaukee School Board, 73 Wis.2d 338, 243 N.W.2d 183 (1976), the circuit court held that negligence was the controlling standard. We do not view the Ceplina case as persuasive precedent. In Ceplina, two sixth grade students were on the same team in a playground softball game. The complainant was injured when her teammate unintentionally struck her in the face with a softball bat during the game. She brought an action in negligence against the batter, the school authorities, and the insurers. The batter moved for summary judgment, claiming that he owed no duty to the complainant to exercise care in swinging the bat because the danger of being struck under these circumstances was open and obvious to the complainant. The trial court declined to grant summary judgment, and this court affirmed the trial court's order.

The Ceplina court rejected the batter's absence of duty defense. ² The court concluded that the complainant had stated a cause of negligence which gave rise to a question for the jury "whether either or both of the actors were causally negligent." 73 Wis.2d at 344, 243 N.W.2d 183.

While the Ceplina court considered the batter's duty and "open and obvious danger" argument within the context of the complainant's negligence claim and referred to this sport-related injury case as an ordinary negligence case, the opinion must be put in perspective. The court considered only whether the circuit court erred in refusing to grant summary judgment on the claim that the batter owed no duty because the danger of being struck by a bat was an open and obvious danger. 73 Wis.2d at 340-41, 243 N.W.2d 183. The Ceplina court was not asked to, and did not, evaluate the applicability of the negligence standard to a sports-related injury. ³ Whether negligence was the appropriate standard for gauging a teammate's conduct was not briefed or presented to the court for decision. Under these circumstances, Ceplina cannot be viewed as persuasive precedent on the issue in the case at bar. We therefore examine anew whether negligence is the appropriate standard in this case.

Courts in other jurisdictions have applied three divergent legal theories to uphold actions for sports-related injuries: 1) intentional torts, 2) willful or reckless misconduct, and 3) negligent conduct. See generally Raymond L. Yasser, Liability for Sports Injuries, in Law of Professional and Amateur Sports (Gary A. Uberstine ed., 1992) at sec. 14.01.

Courts have historically been reluctant to allow participants in contact sports to recover money damages for injuries, absent a deliberate attempt to injure. The intentional tort in a recreational team contact sport is assault and battery. A battery is the intentional, unprivileged, harmful or offensive touching of a person by another. ⁴ Both parties agree that a player in a recreational team contact sport should be liable for an intentional tort. Neither party urges us to hold that a player should be held liable only for intentional torts. The defendant asks the court to adopt the recklessness standard. The plaintiff urges that the negligence standard is appropriate.

Several courts have held that recklessness is the appropriate standard to apply in personal injury actions between participants in recreational team contact sports. From the various formulations courts have used to define reckless conduct, recklessness apparently falls somewhere on a continuum between an intentional act and an act of negligence. The Restatement (Second) of Torts (1965) describes recklessness as acting without intent to inflict the particular harm but in a manner which is so unreasonably dangerous that the person knows or should know that it is highly probable that harm will result. ⁵

Nabozny v. Barnhill, 31 Ill.App.3d 212, 334 N.E.2d 258, 261 (1975), is the lead case establishing that "a player is liable for injury in a tort action if his conduct is such that it is either deliberate, willful or with reckless disregard for the safety of the other player so as to cause injury to that player." ⁶

Like the present case, Nabozny arose out of a soccer match where the litigants were members of opposing high school teams. The complainant, playing the goal position and having just captured the ball, was crouched in the goal area when the tortfeasor kicked him in the head. Witnesses testified at trial that the tortfeasor had an opportunity to turn away and avoid kicking the complainant and that the tortfeasor's action violated the rules under which the game was being played.

The Nabozny court adopted a recklessness standard, rather than a negligence standard, believing that recklessness strikes the proper balance between freeing active and vigorous participation in recreational team contact sports from the chilling effect of litigation and providing a right of redress to an athlete injured through the fault of another. On the one hand, wrote the court, care must be taken not to inhibit free and active participation in recreational team contact sports. Threatening participants with possible liability for injuries might make them reluctant to compete. On the other hand, the court also recognized that tort law condemns unreasonably dangerous behavior and that the playing field should not provide license to engage in unreasonably dangerous behavior. Making the balance, the Nabozny court reasoned that public policy supported the application of the recklessness standard to organized athletics. "The court believes that the law should not place unreasonable burdens on the free and vigorous participation in sports by our youth. However, we also believe that organized, athletic competition does not exist in a vacuum. Rather, some of the restraints of civilization must accompany every athlete onto the playing field. One of the educational benefits of organized...