Contact-sport exception allows for participant negligence – court cases which examine the liability of contact sport participants when either their negligence or their willfulness results in injury

James C. Kozlowski

In the case of Pfister v. Shusta (Ill. 1995), the Illinois state supreme court reaffirmed the majority rule among jurisdictions regarding sport participant liability. 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. As a general rule of law, the state supreme court acknowledged that “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.” However, the court cited Nabozny v. Barnhill (1975), 31 Ill. App. 3d 212, as controlling precedent for a “judicially created exception to the standard of ordinary care” for participants in contact sports.

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. In this case, the court had held that “voluntary participants in contact sports are not liable for injuries caused by simple negligent conduct.” Under Nabozny, such participants do, however, “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.”

Within this context, the court 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.”

Willful and wanton conduct is “a hybrid between acts considered negligent and behavior found to be intentionally tortuous.” 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.

In this particular case, the issue was whether the contact-sports exception to negligence liability applied to injuries sustained in an informal game wherein “two college students spontaneously began to kick a crushed soda can in the lobby of a college dormitory.” Specifically, the issue was whether the contact-sports exception applied to Shusta’s alleged pushing of Pfister toward a wall in an attempt to gain control of the can. After being pushed by Shusta, Pfister attempted to break his fall. In so doing, Pfister put his left hand and forearm through the glass door of a fire-extinguisher case on the wall of the dormitory.

In determining the applicability of the contact-sports exception, the state supreme court found “the relevant inquiry is whether the participants were involved in a contact sport, not whether the sport was formally organized or coached.” In so doing, the court provided the following “practical reason for applying the willful and wanton standard to organized and informal contact sports”.

Even in those cases where rules govern

the permissible degree of physical

contact among the participants of a

game, it is difficult to determine what

may be an acceptable amount of

physical contact allowed by the rules.

In games where physical contact is

inherent, rule infractions, deliberate or

unintentional, are virtually inevitable

and justify a different standard of care…

The players in informal sandlot or

neighborhood games do not, in most

instances, have the benefit of written

rules, coaches, referees or instant replay

to supervise or re-evaluate a player’s


Participants in team sports, where

physical contact among participants is

inherent and virtually inevitable,

assume greater risks of injury than

nonparticipants or participants in

non-contact sports. Recovery will be

granted for injuries sustained by

participants in contact sports only if

the injuries are caused by willful and

wanton or intentional misconduct of


As a matter of social policy, the state supreme court found “[t]he contact-sports exception strikes the appropriate balance between society’s interest in limiting liability for injuries resulting from physical contact inherent in a contact sport and society’s interest in allowing recovery for injuries resulting from willful and wanton or intentional misconduct by participants.”

The exposure of one participant to

liability to another participant for merely

negligent bodily contact, even under the

disorganized situation here, will cause

more harm than good. In common

understanding, football, wrestling, and

boxing, among others, are clearly

recognized as contact sports. Basketball,

hockey, and soccer all permit some bodily

contact and, in actual practice, more

contact is permitted than a reading of the

rules would indicate. In all of the above

sports, players regularly commit contact

beyond that which is permitted by the

rules even as applied. In basketball, such

an illegal contact is described as a foul for

which a sanction is imposed. Sometimes

the player fouled is injured. This is to be

expected. If every time a negligent foul

resulted in injury liability was imposed,

the game of basketball [and any other

contact sport] as we know it would not be


The contact-sports exception allows

recovery for injuries resulting from willful

and wanton and intentional misconduct

while taking into account the voluntary

nature of participation in games where

physical contact is anticipated and where

the risk of injury caused by this contact is


Applying this reasoning to the facts of the case, the state supreme court found the contact sports exception precluded liability for injuries caused by the mere simple negligence alleged in Pfister’s complaint.

Due to the spontaneous and disorganized

nature of the can-kicking game, it does

not appear that rules were formulated

governing the permissible physical

contact among participants in this case.

The can-kicking game was a

spontaneous, informal equivalent to

soccer or floor hockey. he parties divided

themselves into teams, set goals and

engaged in the physical contact typically

found in soccer or floor hockey. Both

soccer and floor hockey are team sports

where physical contact among

participants is inherent in the game…

Those who participate in soccer,

football, softball, basketball, or even a

spontaneous game of can kicking,

choose to play games in which physical

contact among participants is inherent

in the conduct of the game. Participants

in such games assume a greater risk of

injury resulting from the negligent

conduct of co-participants…

In this case, Pfister agreed to

participate in a can-kicking game

similar to soccer and floor hockey. A

degree of physical contact among the

participants in this game was inherent

in the conduct of the game. In fact,

Pfister allegedly pushed Shusta

immediately before Pfister was

allegedly pushed… Pfister did not

allege, and the facts do not establish

either willful and wanton or intentional

misconduct by Shusta.

In Pfister, the Illinois supreme court also noted that “[s]ome jurisdictions have explicitly adopted the logic of Nabozny and its progeny and applied the `willful 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.” As indicated by the following description of more recent decisions from Connecticut and Texas, state courts in other jurisdictions continue to apply the logic of Nabozny and adopt the contact-sports exception as the generally applicable legal standard of care for participants.

Recklessness Standard for Participants

In the case of Jaworski v. Kiernan (Conn. 1997), plaintiff was injured during the course of an adult coed soccer game when she made contact with defendant, a participant on the opposing team. In her complaint, plaintiff alleged defendant “failed to exercise due care and that his conduct was negligent and careless in that he `hit’ and `tripped’ her from behind” in violation of league rules. In response, defendant argued that “a participant in an athletic contest is, as a matter of law, not liable to a co-participant for injuries sustained as a result of simple negligence during the playing of the game.” The trial court, however, held that negligence was “the proper standard of care to apply to team athletic competition.” The jury subsequently returned a verdict for plaintiff on her negligence claim. Defendant appealed the jury verdict, claiming an “action for personal injuries sustained in an athletic competition must be predicated on recklessness and not mere negligence.”

According to the state supreme court, the existence of a legal duty and the extent of a defendant’s legal duty in a particular instance will depend upon the foreseeability of the plaintiff’s injury. In determining “the extent of the legal duty to be imposed” the state supreme court considered the following factors:

(1) the normal expectations of

participants in the sport in which

Jaworski and Kiernan were engaged; (2)

the public policy of encouraging

continued vigorous participation in

recreational sporting activities while

weighing the safety of the participants;

(3) the avoidance of increased litigation;

and (4) the decisions of other


In so doing, the state supreme court held that “the normal expectations of participants in contact team sports counsel the adoption of a reckless or intentional conduct duty-of-care standard for those participants.” Because the jury determined that defendant’s conduct, which caused plaintiff’s injuries, was negligent only, and not reckless or intentional, the state supreme court reversed the judgment of the trial court in favor of plaintiff.

Evidence of Intentional Misconduct

In the case of Greer v. Davis (Tex.App. 1996), plaintiff alleged that defendant recklessly and intentionally collided with him while running the bases in a municipal softball game. At the time of the injury, plaintiff was attempting to tag defendant at home plate. In denying any liability, defendant contended that he did not act intentionally or recklessly, as required in a cause of action arising from injuries sustained in a competitive contact sport. The trial court agreed and granted defendant’s motion for summary judgment.

On appeal, however, plaintiff Greer provided the following testimony that contradicted Davis’ assertions that he did not act intentionally and recklessly

I received the throw in time for any

base runner to see that I had it (if he

were looking at home) and either slide

or avoid me. I was about two feet in

front of the plate, according to umpire

Sahadi, and was in a crouched position

to make the tag on Davis’ expected


Instead and unexpectedly, Davis

lowered his shoulder and ran over me.

Davis did have time to rum to the right

of me or could have attempted a slide.

In his previous at-bat, Davis hit the ball

directly back at me, narrowly missing

my head. After he scored and went back

to the dugout, I heard him tell

teammates, “I was aiming right at the

son of a bitch.” Months earlier, Davis

and I were competitors in a church

league basketball game. I fouled him as

he was on a breakaway lay-up, causing

him to fall to the floor. He threw the

ball at me when he got up.

Based upon this evidence, the appeals court found further trial proceedings were necessary to determine whether the collision was purely accidental or the result of defendant’s intentional or reckless conduct. In so doing, the appeals court rejected defendant’s contention that he should not be liable for any injuries arising from his participation in an organized contact sport On the contrary, the appeals court held that plaintiff must prove “intentional or reckless” conduct, rather than mere negligence.

According to the court, requiring sport participants to prove intentional or reckless misconduct, rather than mere negligence, “protects sports participants from liability for genuinely accidental injuries.” Having determined that sufficient evidence existed in this case to support plaintiff’s allegation of “intentional and reckless” conduct, the appeals court reversed the summary judgment of the trial court in favor of defendant and remanded (i.e., sent back) this case for a jury trial.

Dr. Kozlowski is an associate professor in the Health, Fitness and Recreation Resources program at George Mason University and legal/legislative counsel to the NRPA Division of Public Policy.

COPYRIGHT 1998 National Recreation and Park Association

COPYRIGHT 2004 Gale Group

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