The Competition Turns Ugly: Tort Liability of Participants In Contact Sports For Acts Against Opponents
By John Schmidt
Watching or participating in contact sports offers an escape from the stresses and ordeals of everyday life for millions of Americans. Sports fans in the Chicago area have been fortunate enough to witness great athletes such as Michael Jordan, Walter Payton, and Sammy Sosa. And many people who are not old enough or talented enough to participate in professional athletics nonetheless participate in recreational leagues sports such as football, basketball, baseball, softball, hockey, and soccer.
Because sports is part of our society, however, it is not immune from problems that sometimes result in litigation. One of those problems is violence. Despite the efforts of sports leagues to police themselves through fines and suspensions, violence still occurs in sports at all levels, and sometimes violent acts on the playing field result in serious injuries to participants. This article will examine the standards for imposing tort liability when the actions of a participant in a sport cause injury to an opponent. It will first focus on Nabozny v. Barnhill1,a 1975 Illinois Appellate Court decision that has had a profound impact nationwide on the applicable standard for imposing liability upon participants in sports for causing injury to other participants.
The personal injury action in Nabozny arose from an incident in a soccer game between two amateur teams composed of high-school age players. The plaintiff, Julian Nabozny, was the goalkeeper for one team, and the defendant, David Barnhill, was a forward for the opposing team.2 The rules of soccer ban any player from making contact with a goalkeeper who was in possession of the ball in the penalty area, which is an area in front of the goal where the goalkeeper may touch the ball with his hands.3
Several witnesses who testified at trial stated that they saw a teammate pass the ball to Nabozny, who knelt down on one knee, grabbed the ball with his hands, and pulled it into his chest. Nabozny was in the penalty area at the time.4 Barnhill, who had been running toward the ball, approached Nabozny and kicked him in the left side of his head, injuring him. Several witnesses testified that Barnhill could have avoided contact with Nabozny.5 After Nabozny presented his case, the trial court granted Barnhill’s motion for a directed verdict.
The First District Appellate Court reversed. The court stated that it believed "that the law should not place unreasonable burdens on the free and vigorous participation in sports by our youth."6 It went on to state, however, that "organized, athletic competition does not exist in a vacuum"and "some of the restraints of civilization must accompany every athlete on the playing field."7 Stating that "a reckless disregard for the safety of others cannot be tolerated," the court held that a player in an athletic contest has a duty to other players to refrain from conduct that violates rules that are designed to protect participants from serious injury.8 The court further held that "a player is liable for injury in a tort action if his conduct is such that it is either deliberate, wilful or with a reckless disregard for the safety of the other player so as to cause injury to that player."9
Nabozny was the first reported case in the nation to require a showing of reckless disregard for the safety of others in order to impose tort liability for incidents in which one athletic competitor injures another.10 Most states that have considered the issue since Nabozny have also adopted the reckless disregard standard in this context,11 although some states only require a showing of negligence.12 The rationale behind adopting a higher standard of care includes the fear of a high volume of litigation, the desire to encourage participation and vigorous competition in sports, and the perception that the risk of injury is an inherent part of sports.13 The Connecticut Supreme Court stated that applying a simple negligence standard to sports would mean that "every punter with whom contact is made, every midfielder high sticked, every basketball player fouled, every batter struck by a pitch, and every hockey player tripped would have the ingredients for a lawsuit if injury resulted."14 Courts adopting the simple negligence standard have stated that the negligence standard merely requires the exercise of ordinary care under the circumstances and it can be adapted to the context of sports so as to avoid inhibiting robust competition.15
Despite the adoption of a heightened standard of care, the Nabozny court and other courts have made it clear that participation in an athletic contest does not confer immunity from tort liability.16 This is true even in the world of professional football, one of the most violent contact sports, as a Tenth Circuit decision issued a few years after Nabozny illustrates.17
In Hackbart v. Cincinnati Bengals, Inc., the plaintiff was a safety for the Denver Broncos who filed a federal lawsuit based on diversity of citizenship against the Cincinnati Bengals and a player on the Bengals, stemming from an incident that took place in a 1973 National Football League (NFL) game.18 After the Broncos had intercepted a pass, Hackbart unsuccessfully tried to throw a block on Charles Clark, a running back for the Bengals. Hackbart, who had one knee on the ground, then turned to watch the rest of the play unfold. Clark then struck the back of Hackbart’s head with a forearm blow. No penalty was called because no officials saw the blow. Game film clearly showed the incident, however, and Clark admitted that he had deliberately struck Hackbart out of frustration because the Bengals were losing. Hackbart remained in the game, and he played two more games before the team physician discovered that he had a neck fracture.19
After a trial on the issue of liability, the district court entered judgment in favor of the defendants.20 The district court stated that play in the NFL is so violent that there is no discernible code of conduct for NFL players, making it impossible to determine which acts are reckless.21 According to the district court, even a recklessness standard would bring about an enormous volume of litigation, "making it highly unlikely that the NFL could produce anything like the present games."22
The Tenth Circuit reversed the district court and stated that there "no principles of law which allow a court to rule out certain tortious conduct by reason of general roughness of the game or difficulty in administering it."23 The Tenth Circuit noted that the rules of football prohibit players from striking other players on the head, thereby establishing some boundaries that are intended to protect players against serious injuries.24 The court held that the reckless disregard standard was appropriate, and it remanded the matter for a new trial.25
In the wake of Nabozny, Illinois courts continued to face questions about the applicability of the reckless disregard standard of liability in cases arising from athletic events. The appellate court applied the reckless disregard standard in Oswald v. Township High School Dist. No. 214,26 a 1980 case involving an injury suffered in a basketball game. The Oswald court stated that it interpreted Nabozny "as establishing the standard of conduct to be wilfulness or a reckless disregard of safety where an injury to a player occurs in an athletic competition involving bodily contact."27 In subsequent cases, Illinois courts seized on this language from Oswald and they drew a distinction between sports involving body contact and other sports. For example, in Novak v. Virene, the appellate court held that the ordinary negligence standard applied to a lawsuit arising from a collision between two downhill skiers.28 The court stated that, under Oswald and Nabozny, there is "an exception to ordinary negligence liability for teams sports in which contact [is] virtually inevitable."29 Although the court recognized the possibility of collisions in downhill skiing, it stated that body contact is not inevitable in skiing, and a skier does not voluntarily submit to bodily contact with other skiers.30 Thus, the concern raised in Nabozny that an ordinary negligence standard would discourage participation is not applicable to skiing.31
In a later case, the appellate court held that a golfer struck by a ball hit by another golfer could prevail by proving ordinary negligence.32 The court stated that the cases applying an elevated standard of liability had all involved sports in which physical contact was part and parcel of the sport.33 Golf is not a game in which participants are inevitably or customarily struck by the ball.34 Accordingly, golf is not a contact sport, and proof of negligence is sufficient to establish liability.35
Another issue that has arisen in several cases is whether the reckless disregard standard originally set forth in Nabozny applies to informal or spontaneous athletic events as opposed to organized athletic events. Every Illinois reviewing court to consider this question has given an affirmative answer. In Keller v. Mols,36 a child was injured when he was hit by a plastic puck during an informal floor hockey game on a neighbor’s patio. The appellate court rejected the contention that the ordinary negligence standard should apply because the injury occurred in an informal game rather than an organized sports activity.37 The court stated that the relevant inquiry in determining the standard of liability was whether the participants were playing a contact sport rather than whether they were organized and coached.38 The court went on to state that there was "no basis for imposing a greater duty on youths merely because their games have shifted from the school gymnasium to their homes."39
A later case, Landrum v. Gonzalez, involved a lawsuit by a participant in a recreational softball game who was injured while playing the field when a base runner collided with him.40 The Landrum court cited Keller for the proposition that the informal nature of the game was irrelevant in determining the appropriate standard for imposing liability, and the only relevant issue was whether the parties were involved in a contact sport.41 According to the court, this issue should be resolved by examining the objective factors surrounding the game rather than the subjective expectations of the parties.42 Applying this standard, the court concluded that softball is a contact sport because some physical contact is inevitable as base runners are tagged out by opposing players, fielders sometimes collide with one another, and players are sometimes hit by thrown balls.43 Accordingly, the Nabozny standard of recklessness applied to the lawsuit arising from the softball game.
In Pfister v. Shusta,44 a majority of the Illinois Supreme Court expressed its agreement with Nabozny and the line of appellate court cases applying Nabozny.Pfister and Shusta had participated in an informal game in the lobby of a college dormitory involving four students. The students had begun spontaneously kicking a crushed aluminum soda can while they were waiting for some friends.45 They eventually divided into teams of two and set up goals against the lobby walls. During this informal game, Shusta allegedly pushed Pfister, who was injured when he put his left hand and forearm through the glass door of a fire extinguisher case when he tried to break his fall. 46
The Pfister majority expressed its approval with Nabozny and the other cases that had adopted a heightened standard of liability in actions involving voluntary participants in contact sports.47 The court stated that liability could only be imposed in the participant’s conduct was willful and wanton, which the court defined 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 a conscious disregard for the safety of others."48
Despite the informal nature of the can-kicking game, a majority of the Illinois Supreme Court held that the willful and wanton standard applied.49 The court stated that the relevant issue in this context was whether the activity in which the injury was suffered was a contact sport, not whether it was an organized activity. The court went on to state that the record indicated that the can-kicking game was similar to soccer or floor hockey, team sports in which physical contact is an inherent part of the game.50 Observing that participants in contact sports assume a greater risk of injury than participants in other activities, the majority held that the willful and wanton standard applied in Pfister, and the circuit court had properly granted summary judgment.51
Two justices dissented in Pfister. Justice Miller believed that the appropriate inquiry was whether Shusta’s alleged conduct was sanctioned by the rules of the game, if there were any.52 Justice Miller also believed that the negligence should apply, noting that the standard is flexible and adaptable, and that conduct that is negligent in one setting is not necessarily considered negligent in a different setting.53 Justice Harrison also felt that a negligence standard was appropriate, and he stated that it is not necessary to allow negligent behavior to foster vigorous participation in contact sports.54
The majority and dissenting opinions in Pfister are both open to criticism. While the majority had good reasons for adopting the willful and wanton standard for contact sports, it appears to have lost sight of the rationale for that standard by applying it to a spontaneous form of roughhousing in a college dormitory. The majority stated that participants in team sports where physical contact is inevitable assume greater risks of injury than participants in noncontact sports.55 But, it is questionable that participants in a spontaneous, informal activity like the can-kicking in Pfister were really consenting to such risks. The Pfister majority analogized the activity to soccer and hockey, but those sports are usually played on spacious fields or ice surfaces rather than in a confined dormitory lobby with walls and a glass door. The heightened standard of liability in Nabozny was meant to encourage vigorous participation in contact sports rather than vigorous participation in college dormitory roughhousing.
On the other hand, the dissenters do not seem to appreciate the problems that would result from applying an ordinary negligence standard to contact sports. The Connecticut Supreme Court summed up those problems well when it cautioned that applying a simple negligence standard in this context would open the door to lawsuits filed by participants who were even slightly injured.56 Thus, while the Pfister majority may have chosen an inappropriate context for application of the willful and wanton conduct standard, that standard should be applied to sports in which physical contact is inevitable in order to foster vigorous participation in those sports and to limit the amount of litigation resulting from incidents occurring in athletic competition.
1 31 Ill. App. 3d 212, 334 N.E.2d 258 (1st Dist. 1975).
2 Nabozny, 31 Ill. App. 3d at 213.
3 Id. at 214.
6 Id. at 215.
10 Schalley, Eliminate Violence From Sports Through Arbitration, Not The Civil Courts, 8 Sports Law J. 181, 188 (2001).
11 See Knight v. Jewett, 11 Cal.Rptr.2d 2, 834 P.2d 696, 711 (1992); Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332, 339 (1997); Mark v. Moser, 746 N.E.2d 410, 419-20 (Ind. App. 2001); Hoke v. Cullinan, 914 S.W.2d 335, 339 (Ky. 1995); Picou v. Hartford Ins. Co., 558 So. 2d 787, 790 (La. App. 1990); Gauvin v. Clark, 404 Mass. 450, 537 N.E.2d 94, 96 (1989); Ritchie-Gamester v. City of Berkley, 461 Mich. 73, 597 N.W.2d 517, 518 (1999); Ross v. Clouser, 637 S.W.2d 11, 14 (Mo. 1982); Dotzler v. Tuttle, 234 Neb. 176, 449 N.W.2d 774, 779 (1990); Crown v. Campo, 136 N.J. 494, 643 A.2d 600, 601 (1994); Kabella v. Bouschelle, 672 P.2d 290, 293 (N.M. App. 1983); Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964, 968 (1986); Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699, 703 (1990); Hathaway v. Tascosa Country Club, Inc., 846 S.W.2d 614, 616 (Tex. App. 1993).
12 See Estes v. Tripson, 932 P.2d 1364, 1366 (Ariz. App. 1997); Aukenthaler v. Grundmeyer, 110 Nev. 682, 877 P.2d 1039, 1043 (1994). The Wisconsin Supreme Court also adopted a negligence standard in Lestina v. West Bend Mut. Ins. Co., 501 N.W.2d 28, 33 (Wis.1993), but the Wisconsin legislature subsequently adopted a recklessness standard. Wis. Stat. § 895.525 (4m)a (1996).
20 See Hackbart v. Cincinnati Bengals, Inc., 435 F. Supp. 352, 357-58 (D. Colo. 1977).
21 Id. at 358.
23 Hackbart, 601 F.2d at 520.
24 Id. at 521.
25 Id. at 524-26.
26 84 Ill. App. 3d 723, 406 N.E.2d 157 (1st Dist. 1980). The Oswald court stated that a rule violation was not sufficient by itself to establish liability because of the inevitability of rules violations in contact sports. Oswald, 84 Ill. App. 3d at 727.
27 Id. at 726-27.
28 224 Ill. App. 3d 317, 321, 586 N.E.2d 578 (1st Dist. 1991).
29 Novak, 224 Ill. App. 3d at 321.
32 Zurla v. Hydel, 289 Ill. App. 3d 215, 681 N.E.2d 148 (1st Dist. 1997).
33 Zurla, 289 Ill. App. 3d at 221.
35 Id. at 222. The appellate court explicitly rejected the contrary holding in Thompson v. McNeill, 559 N.E.2d 705, 707 (Ohio 1990), where the Ohio Supreme Court held that a golfer struck by another player’s golf ball had to prove recklessness.
36 156 Ill. App. 3d 235, 509 N.E.2d 584 (1st Dist. 1987)
37 Keller, 156 Ill. App. 3d at 236-37.
38 Id. at 237.
40 Landrum v. Gonzalez, 257 Ill. App. 3d 942, 629 N.E.2d 710 (1st Dist. 1994).
41 Landrum, 257 Ill. App. 3d at 947.
43 Id. at 948.
44 167 Ill. 2d 417, 657 N.E.2d 1013 (1995).
45 Pfister, 167 Ill. 2d at 419.
47 Id. at 420-21.
48 Id. at 421.
49 Id. at 424-26.
50 Id. at 425.
51 Id. at 425-26.
52 Id. at 428-29 (Miller J., dissenting).
53 Id. at 429 (Miller, J., dissenting).
54 Id. at 429-30 (Harrison J., dissenting).
55 Pfister, 167 Ill. 2d at 425.
56 Jaworski, 696 A.2d at 338.
John Schmidt is an Assistant Attorney General with the Civil Appeals Division of the Illinois Attorney General’s office. He received his B.A. from Knox College and his J.D. from DePaul University. He has served as a law clerk for the Honorable Marvin Dunn of the Illinois Appellate Court for the Second District, as a staff attorney for the same court, and as a staff attorney with the Office of the State’s Attorneys Appellate Prosecutor in Elgin.