Pfister v. Shusta, No. 76912

CourtSupreme Court of Illinois
Writing for the CourtMcMORROW
Citation212 Ill.Dec. 668,167 Ill.2d 417,657 N.E.2d 1013
Decision Date26 October 1995
Docket NumberNo. 76912
Parties, 212 Ill.Dec. 668 Sean PFISTER, Appellee, v. Terry SHUSTA, Appellant.

Page 1013

657 N.E.2d 1013
167 Ill.2d 417, 212 Ill.Dec. 668
Sean PFISTER, Appellee,
v.
Terry SHUSTA, Appellant.
No. 76912.
Supreme Court of Illinois.
Oct. 26, 1995.

Page 1014

[212 Ill.Dec. 669] [167 Ill.2d 418] Dawn L. Wall and Robert W. Neirynck, Costigan & Wollrab P.C., Bloomington, for appellant.

Mike McElvain, Bloomington, for appellee.

James W. Fessler, Michael Resis and Glen E. Amundsen, Querrey & Harrow, Ltd., Chicago, for amicus curiae Illinois Association Defense.

Justice McMORROW delivered the opinion of the court:

This appeal presents the question of whether the contact sports exception to liability premised on negligence applies to injuries caused when two college students spontaneously began to kick a crushed soda [167 Ill.2d 419] can in the lobby of a college dormitory. Under the contact sports exception, participants in contact sports may be held liable for injuries to co-participants caused by willful and wanton or intentional misconduct, but are not liable for injuries caused by ordinary negligence. Oswald v. Township High School District No. 214 (1980), 84 Ill.App.3d 723, 40 Ill.Dec. 456, 406 N.E.2d 157; Nabozny v. Barnhill (1975), 31 Ill.App.3d 212, 334 N.E.2d 258.

Sean Pfister (hereinafter plaintiff) and Terry Shusta (hereinafter defendant) were college students at Illinois State University. While waiting in a dormitory lobby for friends, plaintiff, defendant and two other students spontaneously began kicking a

Page 1015

[212 Ill.Dec. 670] crushed aluminum soda can. The four students divided into two teams with two persons on each team, and set up informal goals against the walls of the dormitory lobby. Each team attempted to kick the crushed can into the opposing team's goal. Plaintiff allegedly pushed defendant toward a wall in an attempt to gain control of the can. Defendant responded by allegedly pushing plaintiff, causing plaintiff to fall. While attempting to break his fall, plaintiff put his left hand and forearm through the glass door of a fire extinguisher case on the wall of the dormitory. Plaintiff sustained injuries to his left hand and forearm. The entire episode took 5 to 10 minutes.

Plaintiff filed a complaint against defendant alleging that his injuries were caused by defendant's negligence. In response, defendant filed a motion for summary judgment contending that the activity at issue constituted a contact sport, and therefore he could not be held liable for injuries caused by simple negligent conduct. In support of his summary judgment motion, defendant attached excerpts from the parties' depositions. Plaintiff admitted to can kicking, a degree of team play, and the informal setting of goal areas. Defendant generally agreed with plaintiff's recounting of the activity but [167 Ill.2d 420] likened the activity to hockey and soccer. Defendant based this analogy on his claim that the parties had divided themselves into teams, established goals and had no out-of-bounds area. Defendant also testified in his deposition that the group understood that physical "clubbing" or punching was not permitted.

Finding that the activity at issue fell within the contact sports exception to liability based on the standard of ordinary care applicable to negligence cases, the circuit court of McLean County granted defendant's motion for summary judgment. The circuit court held that the plaintiff failed to state a viable cause of action because he failed to allege willful and wanton misconduct by defendant. Plaintiff appealed the summary judgment order. The appellate court reversed the circuit court's order in favor of the defendant. (256 Ill.App.3d 186, 194 Ill.Dec. 618, 627 N.E.2d 1260.) We allowed the defendant's petition for leave to appeal. 145 Ill.2d R. 315.

Generally, 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. (Widlowski v. Durkee Foods (1990), 138 Ill.2d 369, 373, 150 Ill.Dec. 164, 562 N.E.2d 967.) However, the Illinois appellate court has established an exception to the standard of ordinary care where injuries are sustained by participants engaging in contact sports. Under this judicially created exception to the standard of ordinary care, voluntary participants in contact sports are not liable for injuries caused by simple negligent conduct; however, they owe each other a duty to refrain from willful and wanton or intentional misconduct and are liable for injuries caused by willful and wanton misconduct. See, e.g., Landrum v. Gonzalez (1994), 257 Ill.App.3d 942, 196 Ill.Dec. 165, 629 N.E.2d 710; Nabozny v. Barnhill (1975), 31 Ill.App.3d 212, 334 N.E.2d 258.

The appellate court created and adopted the willful and wanton liability requirement for voluntary participants[167 Ill.2d 421] in sports-related conduct in Nabozny v. Barnhill (1975), 31 Ill.App.3d 212, 334 N.E.2d 258. In Nabozny, a member of a high school soccer team kicked the opposing team's goalie in the head in violation of a soccer rule intended to protect participants of the game. The court created a narrow exception to the standard of ordinary care in order "to control a new field of personal injury litigation." (Nabozny, 31 Ill.App.3d at 215, 334 N.E.2d 258.) In limiting liability for participants in contact sports, the court held that a participant would be liable for injuries caused during a sports game if the participant's conduct was "either deliberate, wilful or with a reckless disregard for the safety of the other player." Nabozny, 31 Ill.App.3d at 215, 334 N.E.2d 258.

Appellate court decisions have consistently interpreted the limited duty of care for contact sports participants under Nabozny as the duty to refrain from willful and wanton or intentional misconduct. Since Nabozny, the appellate court has applied the willful and wanton standard to cases in which participants

Page 1016

[212 Ill.Dec. 671] in both formal and informal sporting activities were injured as a result of the conduct of their co-participants. See Landrum v. Gonzalez (1994), 257 Ill.App.3d 942, 945, 196 Ill.Dec. 165, 629 N.E.2d 710 (recreational softball); Keller v. Mols (1987), 156 Ill.App.3d 235, 108 Ill.Dec. 888, 509 N.E.2d 584 (unsupervised game of floor hockey on backyard patio among minors); Ramos v. City of Countryside (1985), 137 Ill.App.3d 1028, 92 Ill.Dec. 607, 485 N.E.2d 418 (summer recreation program game of "bombardment"); Oswald v. Township High School District No. 214 (1980), 84 Ill.App.3d 723, 40 Ill.Dec. 456, 406 N.E.2d 157 (high school physical education class basketball).

This court and the legislature have defined willful and wanton conduct as a course of action which shows actual or deliberate intent to harm or which, if the course of action is not intentional, shows an utter indifference to or conscious disregard for a person's own safety or the safety or property of others. (Ziarko v. Soo Line R.R. Co. (1994), 161 Ill.2d 267, 273, 204 Ill.Dec. 178, 641 N.E.2d 402; see, e.g., 745 [167 Ill.2d 422] ILCS 10/1-210 (West 1992); see also Illinois Pattern Jury Instructions, Civil, No. 14.01 (3d ed. 1993).) Willful and wanton conduct is "a hybrid between acts considered negligent and behavior found to be intentionally tortious. * * * Under the facts of one case, willful and wanton misconduct may be only degrees more than ordinary negligence, while under the facts of another case, willful and wanton acts may be only degrees less than intentional wrongdoing." Ziarko, 161 Ill.2d at 275-76, 204 Ill.Dec. 178, 641 N.E.2d 402.

Some jurisdictions have explicitly adopted the logic of Nabozny and its progeny and applied the "wilful and wanton" standard, or the comparable local standard, to injuries sustained by participants in a variety of formal and informal sports activities where physical contact among the participants is inherent. See Crawn v. Campo (1994), 136 N.J. 494, 504, 643 A.2d 600, 607 (softball); Knight v. Jewett (1992), 3 Cal.4th 296, 336, 834 P.2d 696, 722, 11 Cal.Rptr.2d 2, 28 (informal touch football); Connell v. Payne (Tex.Ct.App.1991), 814 S.W.2d 486, 488 (polo match); Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 97, 559 N.E.2d 699, 701 (child's game of kick the can); Dotzler v. Tuttle (1990), 234 Neb. 176, 180, 449 N.W.2d 774, 778 (pick-up game of basketball); Gauvin v. Clark (1989), 404 Mass. 450, 454, 537 N.E.2d 94, 96-97 (college hockey game); Kabella v. Bouschelle (1983), 100 N.M. 461, 463, 672 P.2d 290, 292 (informal tackle football game); Ross v. Clouser (Mo.1982), 637 S.W.2d 11, 14 (softball); but see Lestina v. West Bend Mutual Insurance Co. (1993), 176 Wis.2d 901, 501 N.W.2d 28 (negligence standard applied to adult recreational soccer).

The plaintiff asks this court to repudiate the contact sports exception in favor of the reasoning taken by the appellate court in this case. The appellate court abandoned the willful and wanton standard adopted in the line of cases following Nabozny (see, e.g., Landrum v. [167 Ill.2d 423] Gonzalez (1994), 257 Ill.App.3d 942, 196 Ill.Dec. 165, 629 N.E.2d 710), and instead applied the following five-part factual inquiry: (1) was the activity at issue a game; (2) was it played in...

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  • Phila. Indem. Ins. Co. v. Pace Suburban Bus Serv., No. 1–15–1659.
    • United States
    • United States Appellate Court of Illinois
    • November 17, 2016
    ...District, 349 Ill.App.3d 150, 155, 285 Ill.Dec. 380, 811 N.E.2d 1259 (2004) (citing 745 ILCS 10/1–210 (West 2002) and Pfister v. Shusta, 167 Ill.2d 417, 421, 212 Ill.Dec. 668, 657 N.E.2d 1013 (1995) ).¶ 39 The facts of the underlying incident described above can lead only to the conclusion ......
  • Drakeford v. Univ. of Chi. Hosps., Ill. Not-For-Profit Corp., Docket No. 1–11–1366.
    • United States
    • United States Appellate Court of Illinois
    • June 28, 2013
    ...as a course of action that shows an utter indifference to or conscious disregard for the safety or property of others. Pfister v. Shusta, 167 Ill.2d 417, 421–22, 212 Ill.Dec. 668, 657 N.E.2d 1013 (1995). Reckless willful and wanton misconduct may be proven where there is a “ ‘failure, after......
  • People v. Robinson, No. 76572
    • United States
    • Supreme Court of Illinois
    • October 26, 1995
    ...for personal consumption).) Would a carton of cigarettes or a case of whiskey indicate the owner was a seller of cigarettes or whiskey? [167 Ill.2d 417] Rather than draw unreasonable inferences from the evidence, the majority should have concluded that because the quantity of drugs Page 103......
  • Lang v. Silva, No. 1-98-1927.
    • United States
    • United States Appellate Court of Illinois
    • July 29, 1999
    ...caused by negligent conduct but are liable only for injuries caused by willful and wanton or intentional misconduct. Pfister v. Shusta, 167 Ill.2d 417, 420, 212 Ill.Dec. 668, 657 N.E.2d 1013 (1995). In determining what constitutes a contact sport, our courts have focused on whether physical......
  • Request a trial to view additional results
79 cases
  • Phila. Indem. Ins. Co. v. Pace Suburban Bus Serv., No. 1–15–1659.
    • United States
    • United States Appellate Court of Illinois
    • November 17, 2016
    ...District, 349 Ill.App.3d 150, 155, 285 Ill.Dec. 380, 811 N.E.2d 1259 (2004) (citing 745 ILCS 10/1–210 (West 2002) and Pfister v. Shusta, 167 Ill.2d 417, 421, 212 Ill.Dec. 668, 657 N.E.2d 1013 (1995) ).¶ 39 The facts of the underlying incident described above can lead only to the conclusion ......
  • Drakeford v. Univ. of Chi. Hosps., Ill. Not-For-Profit Corp., Docket No. 1–11–1366.
    • United States
    • United States Appellate Court of Illinois
    • June 28, 2013
    ...as a course of action that shows an utter indifference to or conscious disregard for the safety or property of others. Pfister v. Shusta, 167 Ill.2d 417, 421–22, 212 Ill.Dec. 668, 657 N.E.2d 1013 (1995). Reckless willful and wanton misconduct may be proven where there is a “ ‘failure, after......
  • People v. Robinson, No. 76572
    • United States
    • Supreme Court of Illinois
    • October 26, 1995
    ...for personal consumption).) Would a carton of cigarettes or a case of whiskey indicate the owner was a seller of cigarettes or whiskey? [167 Ill.2d 417] Rather than draw unreasonable inferences from the evidence, the majority should have concluded that because the quantity of drugs Page 103......
  • Lang v. Silva, No. 1-98-1927.
    • United States
    • United States Appellate Court of Illinois
    • July 29, 1999
    ...caused by negligent conduct but are liable only for injuries caused by willful and wanton or intentional misconduct. Pfister v. Shusta, 167 Ill.2d 417, 420, 212 Ill.Dec. 668, 657 N.E.2d 1013 (1995). In determining what constitutes a contact sport, our courts have focused on whether physical......
  • Request a trial to view additional results

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