Perkaus v. Chicago Catholic High School Athletic League

• Decision Date: 14 January 1986
• Docket Number: No. 85-0011,85-0011
• Citation: 488 N.E.2d 623,94 Ill.Dec. 624,140 Ill.App.3d 127
• Parties: , 94 Ill.Dec. 624, 30 Ed. Law Rep. 473 James F. PERKAUS, Plaintiff-Appellant, v. CHICAGO CATHOLIC HIGH SCHOOL ATHLETIC LEAGUE, an unincorporated association of Catholic high schools, and its individual members, et al., Defendants- Appellees.
• Court: United States Appellate Court of Illinois

Page 623

488 N.E.2d 623

140 Ill.App.3d 127, 94 Ill.Dec. 624,

30 Ed. Law Rep. 473

James F. PERKAUS, Plaintiff-Appellant, v. CHICAGO CATHOLIC HIGH SCHOOL ATHLETIC LEAGUE, an

unincorporated association of Catholic high

schools, and its individual members, et

al., Defendants- Appellees.

No. 85-0011.

Appellate Court of Illinois,

First District, Second Division.

Jan. 14, 1986.

Corboy & Demetrio, P.C., Chicago, Philip H. Corboy, Bruce Robert Pfaff, of counsel, for plaintiff-appellant.

Aries, Hoyt & Williams, Burdick & Smith, Querrey, Harrow, Gulanick and Kennedy, Ltd., McKenna, Storer, Rowe, White & Farrug, Dowd & Dowd, Ltd., Cassiday, Schade & Gloor, Hinshaw, Culbertson, Moelmann, Hoban and Fuller, Baker & McKenzie, Chicago, for defendants-appellees William M. Waller, Robert M. Smith, Philip Baron, Victor J. Piekarski, Lawrence R. Smith, Richard M. Clark, Shaun McParland, Michael E. Dowd, Philip J. McGuire, Richard A. Barrett, Jr., Manuel Sanchez, Stephen R. Swofford, Francis D. Morrissey, Thomas F. Tobin, of counsel.

STAMOS, Justice:

Plaintiff, James F. Perkaus, appeals from the order of the circuit court of Cook County dismissing Counts VII and VIII of his third-amended complaint against defendants, the Chicago Catholic High School Athletic League, an unincorporated association of Catholic high schools, and its 14 individual members, for failure to state a cause of action. Plaintiff contends that the well-pleaded facts of Count VII, which alleges negligence, showed the existence of a duty owed by defendants to plaintiff. ¹

Plaintiff, a Loyola Academy High School student, was severely injured in a game between two rugby clubs fielded by Loyola and Gordon Technical High School. In addition to suing Loyola and Gordon for their alleged negligence and wilful and wanton conduct, plaintiff sued all 14 Catholic high schools which comprise the Chicago Catholic High School Athletic League, based on the schools' association with the Catholic League. The trial court dismissed only those counts of plaintiff's complaint which sought to hold the high schools liable on account of their association with the Catholic League. Plaintiff's action against Loyola Academy and Gordon Technical for their alleged conduct continues to pend in the trial court.

Plaintiff's original complaint alleged only negligence against the Catholic League. After several defendants filed motions to dismiss, plaintiff filed an amended complaint which also alleged wilful and wanton conduct.

Count VII of the first-amended complaint alleged as follows:

"1. Defendant, CATHOLIC LEAGUE, is an unincorporated association which regulates, coordinates and oversees the sporting activities of its fourteen member schools.

2. The fourteen member schools are subject to the rules and regulations as described in defendant, CATHOLIC LEAGUE's, constitution and by-laws in addition to the rules and regulations of the Illinois High School Association.

3. On May 2, 1980, the rugby clubs of LOYOLA and GORDON, both member schools of defendant, CATHOLIC LEAGUE, were engaged in a rugby game in West Park in the Village of Wilmette, Cook County, Illinois.

4. At the time and place aforesaid, defendant, CATHOLIC LEAGUE, was negligent in one or more of the following respects:

a) Allowed its member schools to sponsor rugby clubs even though defendant, CATHOLIC LEAGUE, knew or should have known the contact nature of the sport;

b) Failed to insist upon the provision of protective equipment to the rugby athletes;

c) Allowed its member school GORDON to employ coaches with little or no rugby experience;

d) Allowed its member schools GORDON and LOYOLA to employ assistant coaches who were not certified to teach in the State of Illinois, in violation of Illinois High School Association By-Law 2.060;

e) Failed to adequately inform itself of the sporting activities of its member schools;

f) Failed to inform its member schools of the risk of serious harm in the game of rugby even though it knew or in the exercise of ordinary care should have known that such information would be necessary to its member schools g) Failed to obtain, disburse or make available information relating to the incidence of serious injury in rugby even though it knew or in the exercise of ordinary care should have known that said information existed.

5. As a proximate result of one or more of the aforesaid negligent acts or omissions of defendant, CATHOLIC LEAGUE, plaintiff suffered injuries of a personal and pecuniary nature."

Count VIII of the first-amended complaint repeated the allegations of Count VII except that wilful and wanton, rather than negligent conduct, was alleged.

Although plaintiff, in paragraph 2 of Counts VII and VIII, pleaded the Catholic League's constitution and bylaws, plaintiff failed to attach a copy of either document to his complaint. Defendants therefore filed copies of the omitted constitution and bylaws, together with affidavits establishing their authenticity. An examination of the constitution and bylaws discloses that rugby is not a Catholic League sport and is not regulated by the League. The constitution and bylaws also indicate that even with respect to those sports which the Catholic League recognizes, the League does not undertake to regulate those aspects of the sports about which the plaintiff has complained, i.e., requirements for protective gear, coaches' qualifications and warning of the danger of contact sports. The affidavits filed to authenticate the constitution and bylaws further establish that rugby is not a Catholic League sport and that the Catholic League has no moderator for rugby as it does for League sports. Plaintiff did not challenge the authenticity of the constitution and bylaws, move to strike them or file any counter-affidavits.

Based on the defendants' motions to dismiss, the trial court dismissed Counts VII and VIII of the first-amended complaint because they failed to plead a legal duty. The dismissal was entered with prejudice except as to two paragraphs of Count VII: subparagraph 4(b), alleging that the Catholic League negligently failed to require protective equipment, and subparagraph 4(c), alleging that the Catholic League negligently allowed Loyola and Gordon to employ coaches without rugby experience.

Plaintiff thereafter filed a second and then a third-amended complaint, which were identical with each other insofar as they sought to impose liability on the Catholic League in Counts VII and VIII. They were also identical with the previously dismissed first-amended complaint insofar as they attempted to plead the legal duty of the Catholic League. The only difference was in paragraph 4, which stated the Catholic League's allegedly negligent conduct in Count VII:

"4. At the time and place aforesaid, defendant, CATHOLIC LEAGUE, was negligent in one or more of the following respects:

a. Failed to require the provision of protective equipment to the rugby athletes of its member schools even though defendant, Catholic League, knew, or should have known, that said protective equipment was necessary for the health and safety of the rugby athletes at its member schools;

b. Failed to inform its member schools of the incidence of serious injury in rugby, even though defendant, Catholic League, knew, or should have known, that said information was necessary for the protection of the health and safety of the rugby athletes at its member schools;

c. Allowed and permitted its member school, Gordon, to employ coaches with little or no rugby experience;

d. Failed to provide adequate training methods or procedures for the coaches of its member school, Gordon, even though defendant, Catholic League, knew, or should have known, that such training was necessary to insure the health and safety of the rugby athletes at its various member schools."

Count VIII was expressed in identical terms but alleged wilful and wanton conduct.

Defendants filed a joint motion to dismiss Counts VII and VIII of the second-amended complaint which was later adopted as a motion to dismiss Counts VII and VIII of the third-amended complaint. At the hearing on defendants' motion to dismiss, plaintiff conceded that the Catholic League is not liable with respect to the allegations in subparagraph 4(b) of Count VII. The trial court dismissed Counts VII and VIII of the third-amended complaint on the same basis that it had dismissed Counts VII and VIII of the first-amended complaint, i.e., that plaintiff failed to plead facts showing a legal duty on the part of the Catholic League. In addition, the court found nothing in the Catholic League's constitution and bylaws to establish a duty. On appeal, plaintiff has not challenged the dismissal of Count VIII.

Plaintiff now contends that the well-pleaded facts of Count VII of his third-amended complaint showed the existence of a duty owed by defendants to plaintiff. We disagree.

A complaint for negligence must set out the existence of a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately resulting from the breach. (Cunis v. Brennan (1974), 56 Ill.2d 372, 374, 308 N.E.2d 617.) The issue of duty is a question of law to be decided by the court, and it encompasses the question of whether the defendant and the plaintiff stand in such a relationship to one another that the law imposes upon the defendant an obligation to act with reasonable care for the plaintiff's benefit. 56 Ill.2d 372, 374, 308 N.E.2d 617.

In attempting to establish the existence of a duty, plaintiff generally alleged in paragraphs 1 and 2 of Count VII of his third-amended complaint that the Catholic League "regulates, coordinates and oversees the sporting activities of its fourteen member schools" which "are subject to the rules and regulations" of the League as set forth in its constitution and bylaws. Plaintiff, however, did not specifically allege that the Catholic League regulated rugby in any manner, that...