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Full Contact: The Illinois Supreme Court Elaborates on the Contact Sports Exception in Karas

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

On February 22, 2008, the Illinois Supreme Court delivered an opinion found here in Karas v. Strevell, et al. Karas was injured during an ice hockey game after he was body checked from behind by two opposing players Strevell and Zimmerman (my client). Thereafter, Karas' father brought suit on behalf of his minor son against the two players, the opposing team, the referee association, and the league. The lawsuit claimed that the opposing players' conduct was willful and wanton, and the team, referees and the league had negligently and willfully and wantonly caused Karas' injury. I will not delve too far into the underlying details as Geoffrey Rapp wrote an insightful piece on this blog following the appellate court's decision, which can be found here, and also because I may have further work on this matter representing Zimmerman.

This matter was before the Illinois Supreme Court on interlocutory appeal following motions to dismiss based on the pleadings (Illinois is a fact-pleading state). In other words, we (the defendants) argued that the complaint did not sufficiently state a cause of action. The Illinois Supreme Court agreed with all defendants, but gave the plaintiff leave to amend his complaint (if he is able to do so) under the new pleading standard to survive the Contact Sports Exception.

The Contact Sports Exception in Illinois holds that if a plaintiff is injured by a co-participant while engaged in a contact sport, the same may only recover if the injury was the result of intentional or willful and wanton conduct (see Pfister v. Shusta, 167 Ill. 2d 417 (1995)).

Important holdings from this opinion by Justice Burke:

• The Contact Sports Exception is not an affirmative defense, nor does the exception require a court to explore the plaintiff's subjective awareness of the risks associated with a particular sport. Rather, the Exception defines the scope of a defendant's duty.
• In deciding if a sport qualifies under the Exception, a court must consider the nature of the sport, specifically looking at the inherent risks in said sport. If physical contact among co-participants is inherent in the game, a player owes no duty to a co-participant to avoid ordinary negligence. Again, the court will look to the objective factors of the game, not the subjective expectation of the parties.
• Ice hockey and tackle football are not only contact sports under the Exception, but are considered by the Court to be full-contact sports. The Court defines full-contact sports as sports where "physical contact between players is not simply an unavoidable byproduct of vigorous play, but is a fundamental part of the way the game is played," and as such, "[i]n these sports, holding participants liable for consciously disregarding the safety of coparticipants is problematic."
• In full contact sports, "conscious disregard for the safety of the opposing player is an inherent part of the game." Therefore, holding a player in a full-contact sport liable for violating this standard violates the underlying rationale of the Exception, and would have a chilling effect on full-contact sport participation.
• As the willful and wanton standard is both unworkable and contrary to the rationale in Pfister, a new standard is required.
• Looking to Knight v. Jewett, 3 Cal. 4th 296 (1992), the Illinois Supreme Court stated the new standard for full-contact sport liability: "a participant breaches a duty of care to a coparticipant only if the participant intentionally injures the coparticipant or engages in conduct 'totally outside the range of the ordinary activity involved in the sport.'"
• Nothing currently plead against Strevell and Zimmerman meets this standard.
• The contact sports exception also applies to organizational defendants (coaches, officials, teams, and leagues).
• To successfully plead a valid cause of action for "failing to adequately enforce the rules in an organized full-contact sport, plaintiff must allege that the defendant acted with intent to cause the injury or that the defendant engaged in conduct 'totally outside the range of ordinary activity (internal citations to Knight)' involved with coaching or officiating a sport."
• The application of the Exception to organizational defendants is not whether the organizational defendant's conduct causes a 3rd party to violate a standard of care.
• Nothing currently plead against the organizational defendants meets the new standard to overcome the Exception.

I have not yet heard if Karas plans to re-file this matter under the new standard.

Full post as published by Sports Law Blog on February 25, 2008 (boomark / email).