Pfister v. Shusta

JUSTICE GREEN, dissenting:

I appreciate the care taken by the majority to limit the scope of the holding to informal play in an area not appropriate for that type of play. However, I conclude that lines are too difficult to draw. The key factor in the instant case and all of the cited Illinois cases is that when the participants involve themselves in play which inherently involves physical contact, they recognize the dangers which might arise when one participant negligently but not wilfully and wantonly makes contact greater than that permitted by the rules or customs of the activity. 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.

The activity involved here was no less a game than that where no duty of due care was imposed in Keller. Indeed, the game "kind of like hockey” being played here was very similar to the floor hockey game involved there. The place where the game was being played here was less appropriate than that in Keller, but a great deal of game-like activity takes place in areas which have dangerous aspects. In many gymnasiums, the open distance behind the basket is unsafely short. At other times, spectators are placed too close to a basketball court. Should one player who negligently commits the foul of charging in such a way as to knock another player into such an impediment be liable to the other player? I very strongly believe that no such liability should be imposed.

The majority also considers the nature of the contact involved. Vince Lombardi, the legendary Green Bay Packers coach, is reported to have said something to the effect that "dancing is a contact sport; football is a violent sport.” However, in common understanding, football, wrestling, and boxing, among others, are clearly récognized 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, and liability was imposed, the game of basketball as we know it would not be played.

Whether we are considering an organized, supervised game conducted by a school or a disorganized back alley or open lot game, imposing liability upon one who inflicts injury upon another participant through a negligent, unintentional violation of the rules will have a highly undesirable chilling effect upon such participation. Any such liability must be placed upon the actor’s conduct being worse than mere negligence. No Illinois court has imposed such liability upon mere negligence. I am unimpressed by citation of a decision of a court of another State which does so when I think the logic behind it is ill-founded.

The Nabozny court made clear it was not imposing liability for merely negligent conduct when it stated as follows:

"It is our opinion 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, the same being a question of fact to be decided by a jury.” (Nabozny, 31 Ill. App. 3d at 215, 334 N.E.2d at 261.)

Defendant was not charged with such conduct here. The dicta of Osborne may indicate that both plaintiff and defendant were negligent in playing in the informal game near a glass door, but their negligence was equal in that respect. The more direct cause of plaintiff’s injury arose from an, at most, negligent violation of the implied rules of the game.

The circuit court properly granted summary judgment to defendant. I would affirm that judgment.