Nabozny v. Barnhill

• Decision Date: 23 July 1975
• Docket Number: No. 58120,58120
• Citation: 334 N.E.2d 258,31 Ill.App.3d 212
• Parties: , 77 A.L.R.3d 1294 Julian Claudio NABOZNY, a minor by Edward J. Nabozny, his father, Plaintiff-Appellant, v. David BARNHILL, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 258

334 N.E.2d 258

31 Ill.App.3d 212, 77 A.L.R.3d 1294

Julian Claudio NABOZNY, a minor by Edward J. Nabozny, his father, Plaintiff-Appellant, v.David BARNHILL, Defendant-Appellee.

No. 58120.

Appellate Court of Illinois, First District, Fourth Division.

July 23, 1975.

Albert F. Hofeld, Chicago, for plaintiff-appellant; William J. Harte, Chicago, of counsel.

Kirkland & Ellis, Chicago, for defendant-appellee; Cornelius J. Harrington, Jr., Gary M. Elden, Chicago, of counsel.

ADESKO, Justice.

Plaintiff, Julian Claudio Nabozny, a minor, by Edward J. Nabozny, his father, commenced this action to recover damages for personal injuries allegedly caused by the negligence of defendant, David Barnhill.Trial was before a jury.At the close of plaintiff's case on motion of defendant, the trial court directed a verdict in favor of the defendant.Plaintiff appeals from the order granting the motion.

Plaintiff contends on appeal that the trial judge erred in granting defendant's motion for a directed verdict and that plaintiff's actions as a participant do not prohibit the establishment of a prima facie case of negligence.Defendant argues in support of the trial court's ruling that defendant was free from negligence as a matter of law (lacking a duty to plaintiff) and that defendant was contributorily negligent as a matter of law.

In light of Pedrick v. Peoria & Eastern R.R. Co.(1967), 37 Ill.2d 494, 229 N.E.2d 504, our statement of facts reflects an examination of all of the evidence viewed in its aspect most favorable to plaintiff.

A soccer match began between two amateur teams at Duke Child's Field in Winnetka, Illinois.Plaintiff was playing the position of goalkeeper for the Hansa team.Defendant was playing the position of forward for the Winnetka team.Members of both teams were of high-school age.Approximately twenty minutes after play had begun, a Winnetka player kicked the ball over the midfield line.Two players, Jim Gallos(for Hansa) and the defendant(for Winnetka) chased the free ball.Gallos reached the ball first.Since he was closely pursued by the defendant, Gallos passed the ball to the plaintiff, the Hansa goalkeeper.Gallos then turned away and prepared to receive a pass from the plaintiff.The plaintiff, in the meantime, went down on his left knee, received the pass, and pulled the ball to his chest.The defendant did not turn away when Gallos did, but continued to run in the direction of the plaintiff and kicked the left side of plaintiff's head causing plaintiff severe injuries.

All of the occurrence witnesses agreed that the defendant had time to avoid contact with plaintiff and that the plaintiff remained at all times within the 'penalty area,' a rectangular area between the eighteenth yard line and the goal.Four witnesses testified that they saw plaintiff in a crouched position on his left knee inside the penalty zone.Plaintiff testified that he actually had possession of the ball when he was struck by defendant.One witness, Marie Shekem, stated that plaintiff had the ball when he was kicked.All other occurrence witnesses stated that they thought plaintiff was in possession of the ball.

Plaintiff called three expert witnesses.Julius Roth, coach of the Hansa team, testified that the game in question was being played under 'F.I.F.A.' rules.The three experts agreed that those rules prohibited all players from making contact with the goalkeeper when he is in possession of the ball in the penalty area.Possession is defined in the Chicago area as referring to the goalkeeper having his hands on the ball.Under 'F.I.F.A.' rules, any contact with a goalkeeper in possession in the penalty area is an infraction of the rules, even if such contact is unintentional.The goalkeeper is the only member of a team who is allowed to touch a ball in play so long as he remains in the penalty area.The only legal contact permitted in soccer is shoulder to shoulder contact between players going for a ball within playing distance.The three experts agreed that the contact in question in this case should not have occurred.Additionally, goalkeeper head injuries are extremely rare in soccer.As a result of being struck, plaintiff suffered permanent damage to his skull and brain.

The initial question presented by this appeal is whether, under the facts in evidence, such a relationship existed between the parties that the court will impose a legal duty upon one for the benefit of the other.'(M)ore simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant.'(Prosser, Law of Torts, 4th ed. 1971, sec. 37, p. 206.)

There is a dearth of case law involving organized athletic competition wherein one of the participants is charged with negligence.There are no such Illinois cases.A number of other jurisdictions prohibit recovery generally for reasons of public policy.(E.g., Gaspard v. Grain Dealers Mutual Insurance Co.(La.App.1961), 131 So.2d 831.)We can find no American cases dealing with the game of soccer.

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