The Journal of The DuPage County Bar Association

Back Issues > Vol. 18 (2005-06)

The Negligent Tortfeasor’s Get Out of Jail Free Card: The Contact Sports Exception
By Alfred A. Spitzzeri

While going for the ball during a soccer game, a player negligently kicks the goalie in the head, resulting in the goalie being injured. During an informal game of kick-the-can in the hallway of a college dorm, one boy pushes another into the glass door of the fire extinguisher case causing him to cut his hand when the glass door is shattered. In another case, a hockey player is injured when hit in the face by a plastic floor hockey puck. Surely, in each of the foregoing situations, the negligent tortfeasor is liable for his negligence, right? After all, as a general rule, 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 his negligent conduct. Widlowski v. Durkee Foods.n1

Wrong! In Nabozny v. Barnhill n2, the Plaintiff, a soccer goalie, was kicked in the face by another player during an amateur soccer match. The Nabozny case was the first Appellate Court case in Illinois to recognize the contact sport exception to the general rule that a person is responsible for his negligent acts or omissions. The court stated that to allow the plaintiff goalie to sue another player in negligence under these facts would obviously have a chilling effect on other players who choose to play soccer, basketball, hockey, football, softball, etc. The court held that a player could still be liable in tort if his conduct was either deliberate, willful, or with a reckless disregard for the safety of others. Nabozny supra.

Thus, the contact sport rule was originally designed by Illinois courts as a narrow exception carved out as a matter of public policy to protect individuals who are voluntary participants in a bona fide sport or game. The idea behind the rule is that without such an exception, there would be a chilling effect on vigorous participation in recognized sports or games who injure another participant, albeit accidentally.

The Illinois Supreme Court first tackled this issue in Pfister v. Shusta n3. The issue there was whether the contact sports exception applied to injuries caused when one college student pushed another college student through the glass door of a fire extinguisher case on the wall of their college dormitory during an informal game of kick the can.

The trial judge granted the defendant’s summary judgment motion based upon the contact sports exception but was reversed by the Appellate Court. After reviewing the various Appellate Court decisions, which have recognized the contact sports exception to liability where the participants were playing football, wrestling, boxing, hockey, soccer, and basketball, the Illinois Supreme Court reversed the Appellate Court and affirmed the entry of summary judgment for the defendant.

As the Supreme Court stated:

"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…" Pfister, 167 Ill. 2nd 417, 420.

In Pfister v. Shusta, supra, the Supreme Court emphasized that under the contact sports exception, "…The relevant inquiry is whether the participants were involved in a "contact sport," not whether the sport was formally organized or choached." n.4 "Contact Sport" was defined as a sport where contact is an integral and inherent part of the game. Further, the Court cautioned that this was to be construed as a narrow exception to ordinary negligence principle.

This limited exception to the general rule, as originally carved out by the courts, made sense from a public policy perspective, since participants in team sports, where physical contact among participants is inherent and virtually inevitable, assume a greater risk of injury than non-participants or participants in non-contact sports. n. 5 In Landrum v. Gonzales n6, the court applied the contact sport exception to a case where the first baseman in a softball game filed a lawsuit against the base runner who collided with him during the course of a softball game. In Keller v. Mols, the court applied the contact sport exception to the plaintiff goalie who was hit in the face by a plastic hockey puck while playing hockey goalie without a facemask. n. 7 The exception as also applied when the plaintiff was struck by a softball during a game called "bombardment." There, in Ramos v. City of Countryside, the court was influenced by the fact the game was part of an organized, summer recreation program for elementary aged school children which included specific rules. Thus, the court found the game of bombardment was analogous to basketball and soccer. n.8

However, as time has passed, creative defendants have made increasing attempts to broaden the exception to the extent that it could virtually swallow the rule whole. In Zurla v. Hydel, the defendant raised the contact sport exception when he struck another golfer with a ball during a round of golf. [The author’s last foray onto a golf course did not reveal the game of golf to be one involving inherent contact—his partners’ play notwithstanding] The Appellate Court denied the defendant’s creative attempt to avoid liability in that case, holding that Illinois courts recognize a distinction between "contact" and "non-contact" sports, with only the former requiring the plaintiff to prove a violation of the elevated standard of care, i.e., willful/wanton misconduct. n. 9

In Novak v. Virene n.10, a skier was injured when another skier negligently collided with him. The Appellate Court reversed summary judgment for the defendant and determined that ordinary negligence principles applied to this case. The rationale was that the downhill skier did not voluntarily consent to contact with the other skier, and further, since contact during skiing was not inevitable, it was held that skiing was not a contact sport. Further, the court stated:

"Many activities in life are fraught with danger, and absent a specific assumption of risk, one may obtain damages when injured by another’s negligence." n. 11.

In Lang v. Silva, plaintiff jockey was injured during the seventh race at Sportsman’s Park racetrack. He sued another jockey whose horse bumped his horse, causing him to fall and suffer both internal and external injuries. The trial court granted the defendant’s 2-619 motion to dismiss based upon the contact sport exception. Given the conflicting deposition testimony in the case, however, the Appellate Court reversed and found that question of fact existed for the jury to decide. n. 12


In conclusion, under the contact sport exception, a tortfeasor participating in a sport in which physical contact is part and parcel of the game can escape liability for his negligence. He may still be found liable for willful/wanton misconduct, although most plaintiffs would not pursue this theory for lack of insurance coverage. The courts seem to distinguish between "individual" sports and "team" sports. All of the cases that have been found to be "non-contact" sports have been those in which the participants are individuals, e.g. golf, downhill skiing, and horse racing. On the other hand, all of the cases which have been found to be "contact" sports involved team participants, such as hockey, soccer, softball, etc. This area of law provides fertile ground for creative lawyering.

1. 138 Ill. 2d 369; 562 N.E. 2d 967; 150 Ill. Dec. 164 (1990)

2. Nabozny v. Barnhill, 31 Ill. App., 3d 212, 334 N.E.2d 258 ( 1st Dist. 1975)

3. Pfister v. Shusta, 167 Ill. 2d 417, 657 N.E.2d 1013; 212 Ill. Dec. 668 (1995)

4. Pfister citing Keller v. Mols, 156 Ill. App. 3d 235, 509 N.E.2d 584 (1987) at 167 Ill.2d 425

5. Pfister at 167 Ill. 2d 425.

5. 138 Ill. 2nd 369, 562 N.E.2d 967 (1990)

6. Landrum v. Gonzalez, 257 Ill. App. 3d 942; 629 N.E. 710; 196 Ill. Dec. 165 (1st Dist. 1994)

7. Keller v. Mols, 156 Ill. App. 3d 235; 509 N.E.2d 584; 108 Ill. Dec. 888 (1st Dist. 1987)

8. Ramos v. Countryside, 137 Ill. App. 3d 1028; 485 N.E. 418; 92 Ill. Dec. 607 (1st Dist. 1985).

9. Zurla v. Hydel, 289 Ill. App. 3d 215; 681 N.E. 2d 148; 224 Ill. Dec. 166 (1st Dist. 1997)

10. Novak v. Virene, 224 Ill. App. 3d 317; 586 N.E. 2d 578; 166 Ill. Dec. 620 (1st Dist. 1991).

11. Novak @224 Ill. App. 3d 321.

12. Lang v. Silva 306 Ill. App. 3d 960; 715 N.E. 2d 708; 240 Ill. Dec. 21 (1st Dist. 1999).

Alfred A. Spitzzeri is 2nd Vice President of the DuPage County Bar Association. He is a sole practitioner in Naperville concentrating in personal injury cases. He is a Certified Arbitrator and Mediator. He received his J.D. from Loyola University Law School.

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