Pfister v. Shusta, 4-93-0070

• Decision Date: 27 January 1994
• Docket Number: No. 4-93-0070,4-93-0070
• Parties: , 194 Ill.Dec. 618, 89 Ed. Law Rep. 196 Sean PFISTER, Plaintiff-Appellant, v. Terry SHUSTA, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1260

627 N.E.2d 1260 256 Ill.App.3d 186, 194 Ill.Dec. 618,
89 Ed. Law Rep. 196 Sean PFISTER, Plaintiff-Appellant,
v.
Terry SHUSTA, Defendant-Appellee. No. 4-93-0070. Appellate Court of Illinois,
Fourth District. Argued July 21, 1993.
Decided Jan. 27, 1994.

Page 1261

[194 Ill.Dec. 619] Mike McElvain, argued, Law Office of Mike McElvain, Bloomington, IL for plaintiff-appellant.

Dawn L. Wall, argued, Costigan & Wollrab, P.C., Bloomington, for defendant-appellee.

Justice COOK delivered the opinion of the court:

Plaintiff, Sean Pfister, brought this action for an injury he suffered while he and defendant, Terry Shusta, were kicking an aluminum can in a college dormitory lobby. The trial court granted summary judgment for defendant, ruling plaintiff's complaint failed to state a negligence cause of action. The trial court held the can-kicking activity was a contact sport and plaintiff was accordingly required to allege and prove wilful and wanton conduct, not mere negligence. We reverse.

Plaintiff and defendant were both students at Illinois State University on February 9, 1990, when they attended a party held at Watterson Towers dormitory. Plaintiff, defendant, and two other [256 Ill.App.3d 187] students eventually left the party to go to the lobby where they waited for friends. While waiting, they began kicking a crushed aluminum can which was on the floor. They established teams with plaintiff and defendant on opposite sides and goals at each end of the hallway, "kind of like hockey."

Defendant stated in a deposition that plaintiff "pushed" him. Defendant then pushed plaintiff off of him, causing plaintiff to fall backward against a wall on which there was a glass door which encased a fire extinguisher. As a result, plaintiff's hand went through the glass door and was injured. At the time of the incident "there was a lot of physical contact, pushing each other back and forth to get control of the can," which was between the parties' feet. Plaintiff stated in his deposition that he was moving toward the can, near the wall with the glass door, when defendant pushed him from behind. Plaintiff put his hand up "for support" and then it went through the glass.

Summary judgment is appropriate where the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Gresham v. Kirby (1992), 229 Ill.App.3d 952, 954, 172 Ill.Dec. 138, 140, 595 N.E.2d 201, 203; Olaf v. Christie Clinic Association (1990), 200 Ill.App.3d 191, 193-94, 146 Ill.Dec. 647, 649, 558 N.E.2d 610, 612; Cronic v. Doud (1988), 168 Ill.App.3d 665, 668, 119 Ill.Dec. 708, 710, 523 N.E.2d 176, 178.) It is a question of law whether a legal duty of care is owed by a defendant to a plaintiff. Benner v. Bell (1992), 236 Ill.App.3d 761, 764-65, 177 Ill.Dec. 1, 3, 602 N.E.2d 896, 898; Gresham, 229 Ill.App.3d at 955, 172 Ill.Dec. at 140, 595 N.E.2d at 203; W. Keeton, Prosser & Keeton on Torts § 37, at 236 (5th ed. 1984).

Parties generally owe each other the duty to refrain from negligence, that is, the duty to act reasonably under all the circumstances, but an exception is said to exist when the parties are engaged in a contact

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[194 Ill.Dec. 620] sport. That exception provides that a plaintiff injured while participating in a contact sport may only recover from another participant if the injury was due to the other's wilful or wanton conduct. See Keller v. Mols (1987), 156 Ill.App.3d 235, 237, 108 Ill.Dec. 888, 890-91, 509 N.E.2d 584, 586 (plaintiff may not recover for injuries incurred during an informal floor hockey game where defendant's conduct was merely negligent); Oswald v. Township High School District No. 214 (1980), 84 Ill.App.3d 723, 727, 40 Ill.Dec. 456, 458-59, 406 N.E.2d 157, 159-60 (plaintiff must show wilful conduct or reckless disregard of plaintiff's safety to recover for injury during physical education class basketball game).

The seminal case for the contact sports exception is...