                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                  Gvillo v. DeCamp Junction, Inc., 2011 IL App (5th) 100262




Appellate Court            GREGORY GVILLO, Plaintiff-Appellant, v. DeCAMP JUNCTION,
Caption                    INC., JIM MOULTRIE, and ARON KLENKE, Defendants-Appellees.



District & No.             Fifth District
                           Docket No. 5-10-0262


Filed                      October 31, 2011


Held                       In an action against the organizer of an amateur softball league, one of the
(Note: This syllabus       organizer’s employees and a player for the injuries plaintiff suffered when
constitutes no part of     defendant player collided with plaintiff, a first baseman, while running to
the opinion of the court   first base, the appellate court concluded that the sports exception did not
but has been prepared      apply to the organizer and its employee under the circumstances and the
by the Reporter of         entry of summary judgment for the organization and its employee was
Decisions for the          reversed where a genuine issue of material fact existed as to whether the
convenience of the         setup of the field proximately caused plaintiff’s injuries.
reader.)


Decision Under             Appeal from the Circuit Court of Madison County, No. 08-L-871; the
Review                     Hon. Ann Callis, Judge, presiding.


Judgment                   Reversed; cause remanded.
Counsel on                  Rick Schoenfield, of DiVincenzo, Schoenfield, Swartzman, Michael R.
Appeal                      Lang, of Michael R. Lang & Associates, both of Chicago, and
                            Christopher M. Donohoo, of Donohoo Law Firm, P.C., of Wood River,
                            for appellant.

                            Robert H. Gregory, of Law Office of Robert H. Gregory, P.C., of East
                            Alton, for appellees.



Panel                       PRESIDING JUSTICE CHAPMAN delivered the judgment of the court,
                            with opinion.
                            Justices Spomer and Stewart concurred in the judgment and opinion.



                                               OPINION

¶1          The plaintiff, Gregory Gvillo, was injured during a softball game when defendant Aron
        Klenke collided with him. The plaintiff alleged, in relevant part, that defendants DeCamp
        Junction, Inc., and Jim Moultrie set up the softball field in an unreasonably dangerous
        manner, thereby causing the collision. He appeals an order of the trial court granting
        summary judgment in favor of DeCamp Junction and Moultrie. The plaintiff argues that (1)
        the court erred in finding that the contact sports exception applies and (2) even assuming the
        contact sports exception applies, genuine issues of material fact remain as to whether the
        defendants acted willfully and wantonly. We reverse.
¶2          At issue in this appeal is the contact sports exception to ordinary negligence as a basis
        for liability. Under that exception, a participant in a contact sport is only liable for injuries
        caused to another participant if the injuries are caused by intentional or willful and wanton
        misconduct. Participants are not liable for injuries that result from ordinary negligence.
        Pfister v. Shusta, 167 Ill. 2d 417, 419, 657 N.E.2d 1013, 1014 (1995). The question before
        this court is whether this exception applies to the organizational defendants, DeCamp
        Junction and Moultrie, under the circumstances presented.
¶3          DeCamp Junction and its employee, Moultrie, set up an informal amateur softball league
        each summer. The plaintiff was the coach and first baseman for a team that played in the
        league. Klenke was a coach and player on another team. During a playoff game, Klenke hit
        a ground ball toward the third baseman, who fielded the ball and threw it to the plaintiff. In
        order to make the play, the plaintiff had to stretch out to reach the ball while keeping his foot
        on first base. Just after the plaintiff caught the ball, Klenke collided with him while
        attempting to reach first base. As a result of this collision, the plaintiff suffered a fracture and
        nerve damage.
¶4          In his complaint, the plaintiff alleged that the organizational defendants provided a

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     playing field that was unreasonably dangerous. He alleged that the defendants were
     responsible for setting up the softball field. He further alleged that they did not follow two
     safety rules of the Amateur Softball Association (ASA) that are designed to prevent
     collisions like the one that occurred between the plaintiff and Klenke. Specifically, rule 2,
     section 3H, of the ASA Rules of Softball provides that first base must be a double base
     measuring 30 inches by 15 inches. Half of the base should be white and located in fair
     territory, while the other half should be green or orange and located in foul territory. The
     plaintiff explained in his discovery deposition that this system allows the first baseman to use
     the white half of the base in fair territory to make the play and leaves the green or orange half
     of the base in foul territory for the base runner.
¶5       In addition, section 3 of rule 2 requires a running lane between home plate and first base.
     This is to be accomplished by painting a line parallel to the base line three feet away from
     the base line in foul territory. The rule provides for this line to run from the outer edge of first
     base to a point halfway between home plate and first base. According to the plaintiff’s
     complaint, both of these rules are safety rules designed to prevent collisions between batters
     and first basemen. He alleged that the defendants provided only a single 15-inch-by-15-inch
     white base in fair territory and did not provide a running lane. He further alleged that the
     organizational defendants acted “willfully, wantonly, and/or recklessly” in setting up the field
     in this “highly dangerous manner.”
¶6       In a discovery deposition, the plaintiff testified that the league set up by the defendants
     followed the ASA’s softball rules “with a few minor exceptions.” He stated that they used
     different types of bats and balls than were called for under ASA rules. The plaintiff also
     testified that first base had been set up as a single 15-by-15 base all season. He testified that
     he played weekly games at DeCamp Junction from May, when the season began, until
     September, when the accident occurred. He testified that there was a “close call” at first base
     earlier in the season and that he mentioned this to Moultrie, but he admitted that he never
     refused to play because of the way first base was set up.
¶7       The plaintiff also testified regarding his perception of Klenke’s intent. He stated that
     prior to the start of the game, the two teams argued over player eligibility. According to the
     plaintiff, a player on Klenke’s team had not played regularly during the weekly “regular
     season” games and was therefore not eligible to play in the playoff rounds. The plaintiff
     called this to the attention of the umpires, and the player was disqualified. He testified that
     he did not know whether Klenke was upset about this. He later testified that he believed that
     Klenke ran into him intentionally, but he admitted that he did not actually know what Klenke
     was thinking.
¶8       The organizational defendants filed a motion for summary judgment. In it, the defendants
     argued that they were entitled to a judgment as a matter of law because (1) the contact sports
     exception was applicable and the factual record did not demonstrate that the defendants
     engaged in willful and wanton misconduct and (2) the ASA rules regarding the setup of first
     base and the first base line were not applicable to an “informal summer ‘beer league.’ ” The
     court denied the motion for summary judgment. The defendants then filed a motion to
     reconsider, raising essentially the same three arguments. This time, they specifically argued
     that the contact sports exception was applicable to organizational defendants just as it was

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       applicable to participants. They also argued that they did not have a duty to use the ASA’s
       double-base system because the game was not sponsored by the ASA. The court granted the
       motion to reconsider and the motion for summary judgment. The plaintiff then filed the
       instant appeal.
¶9         Summary judgment is appropriate only if the pleadings, depositions, and affidavits show
       that there are no genuine issues of material fact to be resolved and the moving party is
       entitled to a judgment as a matter of law. Thompson v. Gordon, 241 Ill. 2d 428, 438, 948
       N.E.2d 39, 45 (2011). Summary judgment is a drastic measure. Thus, when determining
       whether genuine issues of material fact remain that would preclude summary judgment, we
       view the factual record in the light most favorable to the nonmoving party. United National
       Insurance Co. v. Faure Brothers Corp., 409 Ill. App. 3d 711, 716, 949 N.E.2d 1185, 1190
       (2011). In addition, summary judgment is not appropriate unless the moving party’s right to
       judgment is “ ‘clear and free from doubt.’ ” United National Insurance Co., 409 Ill. App. 3d
       at 716, 949 N.E.2d at 1190 (quoting Williams v. Manchester, 228 Ill. 2d 404, 417, 888
       N.E.2d 1, 9 (2008)). Our review is de novo. United National Insurance Co., 409 Ill. App. 3d
       at 716, 949 N.E.2d at 1190.
¶ 10       The plaintiff argues that the contact sports exception does not apply under the facts and
       circumstances of this case. As previously mentioned, that exception provides that a
       participant in a contact sport is not liable for injuries to another participant based on
       principles of ordinary negligence, but a participant is liable for injuries caused by willful and
       wanton or intentional misconduct. Pfister, 167 Ill. 2d at 419, 657 N.E.2d at 1014. Put
       differently, participants in contact sports owe other participants a “duty to refrain from
       willful and wanton or intentional misconduct.” Pfister, 167 Ill. 2d at 420, 657 N.E.2d at
       1015. One reason for this rule is that physical contact between players is an inherent part of
       contact sports, and injuries from such contact are to be anticipated as an inherent risk
       associated with playing a contact sport. Karas v. Strevell, 227 Ill. 2d 440, 452, 884 N.E.2d
       122, 130 (2008).
¶ 11       Another equally important reason is the need to avoid a “chilling effect” on the way
       contact sports are played. Karas, 227 Ill. 2d at 452, 884 N.E.2d at 130. Numerous courts
       have voiced concern that applying a standard of ordinary negligence in cases involving
       contact sports injuries might discourage “ ‘vigorous participation’ ” in a sport or
       fundamentally alter the way it is played. Karas, 227 Ill. 2d at 453, 884 N.E.2d at 130; see
       Karas, 227 Ill. 2d at 452-53, 884 N.E.2d at 130 (and cases cited therein). This concern is “a
       primary justification” for the contact sports exception. Karas, 227 Ill. 2d at 452-53, 884
       N.E.2d at 130.
¶ 12       Courts of this state have determined that softball is a contact sport. Thus, the contact
       sports exception is applicable to claims involving plaintiffs and defendants who are both
       participants in the sport of softball. Landrum v. Gonzalez, 257 Ill. App. 3d 942, 948, 629
       N.E.2d 710, 715 (1994). However, it is less clear whether the exception applies to
       nonparticipant organizational defendants. See Karas, 227 Ill. 2d at 461, 884 N.E.2d at 135
       (noting that the question of “[w]hether the contact sports exception may be applied to a
       nonparticipant in a sporting event” was an issue of first impression).


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¶ 13        In Karas, our supreme court considered the applicability of the exception to
       nonparticipant defendants where a plaintiff was injured during an amateur hockey game. The
       plaintiff was injured when two players on an opposing team bodychecked him from behind,
       in contravention of league rules. Karas, 227 Ill. 2d at 443-44, 884 N.E.2d at 125. The
       plaintiff alleged willful and wanton misconduct on the part of the two players. Karas, 227
       Ill. 2d at 444, 884 N.E.2d at 125. He also alleged negligence on the part of the opposing
       team, the amateur hockey league, and the referees’ association. Karas, 227 Ill. 2d at 445, 884
       N.E.2d at 126. He alleged that these organizational defendants failed to take adequate steps
       to enforce or instruct players and coaches on the rule against bodychecking from behind.
       Karas, 227 Ill. 2d at 445, 884 N.E.2d at 126.
¶ 14        The Karas court found that, under the facts before it, the contact sports exception applied
       to the nonparticipant defendants there (the league, the opposing team, and the referees’
       association). Karas, 227 Ill. 2d at 464, 884 N.E.2d at 137. It is important to note, however,
       that the court did not hold that claims against a nonparticipant organization will always be
       subject to the contact sports exception. Rather, the court held as follows:
            “[W]hether the contact sports exception applies to a nonparticipant defendant is a policy
            determination that rests on the circumstances of the sport and its inherent risks, the
            relationship of the parties to the sport and to each other, and whether imposing broader
            liability on the defendant ‘would harm the sport or cause it to be changed or
            abandoned.’ ” Karas, 227 Ill. 2d at 465, 884 N.E.2d at 137 (quoting Kahn v. East Side
            Union High School District, 75 P.3d 30, 39 (Cal. 2003)).
¶ 15        In applying this holding to the facts before it, the Karas court focused on the nature of
       the allegations against the organizational defendants there. The court explained that coaching
       and officiating a sport involve “subjective decisionmaking that often occurs in the middle
       of a fast[-]moving game” and that “it is difficult to imagine activities more prone to second-
       guessing than coaching and officiating.” Karas, 227 Ill. 2d at 464, 884 N.E.2d at 137. The
       court also considered the fact that the way coaches and referees enforce rules “directly affects
       the way in which the sport is played.” Karas, 227 Ill. 2d at 464, 884 N.E.2d at 137. As such,
       the court was concerned that “[i]mposing too strict a standard of liability on the enforcement
       of those rules would have a chilling effect on vigorous participation in the sport.” Karas, 227
       Ill. 2d at 464, 884 N.E.2d at 137.
¶ 16        The plaintiff argues that the instant case is distinguishable from Karas on both of these
       points, and we agree. Here, the defendants’ decisions in setting up the softball field are at
       issue, not coaching or officiating decisions made in the middle of a fast-moving game. These
       decisions are not as inherently subjective as the coaching and refereeing decisions at issue
       in Karas, and the defendants were not required to make split-second decisions in the middle
       of a fast-moving game.
¶ 17        Moreover, the record before us does not support the notion that imposing liability for
       ordinary negligence under these circumstances would alter the sport of softball or discourage
       vigorous participation. As previously discussed, the Amateur Softball Association requires
       that softball fields be set up using the double-base system and a running lane between home
       plate and first base. In addition, the depositions and pleadings on file indicate that the double-


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       base system minimizes the potential for collisions like the one that occurred between the
       plaintiff and Klenke while allowing base runners to run as fast as they can to reach base and
       allowing first basemen to make an effort to make the plays necessary to get runners out. In
       other words, the system does nothing to interfere with vigorous participation in the sport. For
       these reasons, we conclude that the contact sports exception is not applicable to the
       organizational defendants under the circumstances of the instant case.
¶ 18       We note that the trial court did not expressly state the rationale for its ruling. Thus, we
       will briefly consider two alternative arguments raised by the defendants in support of their
       position. First, the defendants argue that the ASA’s safety rule was not applicable to the
       game because it was not an ASA-sponsored game. We do not believe the defendants are
       entitled to summary judgment on this basis for two reasons. Although it is undisputed that
       the game was not an ASA-sponsored game, a question of fact remains as to whether the
       informal league adopted this particular rule. The plaintiff stated in his deposition that the
       ASA rules were followed with certain exceptions related to the types of bats and balls that
       were used. However, he also stated that the defendants had used a single-base system and no
       running lane all summer long. A portion of Moultrie’s discovery deposition also appears in
       the record. Moultrie did not contradict the plaintiff’s testimony, and he did not address
       whether any rules related to the setup of the field applied. He stated that at the beginning of
       each summer, the league set the rules. He explained that he held a meeting with the team
       captains to let them decide if they wanted to change any rules. Moultrie also stated that teams
       could agree to change certain rules at games. As an example, he said that if one team did not
       have enough players, the teams could agree to allow players from a different team to join in.
       Although the defendants point to this testimony in support of their claim that the rules
       relating to the setup of the field were not applicable, we believe there is a genuine issue of
       fact as to whether this is the case. Moreover, the ultimate question is whether the setup of the
       field was negligent. The ASA rule may be relevant to this question even if the rule is not
       binding on the defendants.
¶ 19       The defendants also argue that they were entitled to summary judgment as a matter of law
       because of two points they contend the plaintiff admitted in his discovery deposition.
       Specifically, the plaintiff testified that he did not believe the organizational defendants
       intended to injure him. He also testified that he believed Aron Klenke ran into him
       intentionally, and he acknowledged that if this was the case, a different setup of the field
       would not have prevented the collision. We may dispose of the first of these two claims
       easily. As the plaintiff correctly notes, he does not need to prove that the defendants acted
       intentionally even under the contact sports exception. See Karas, 227 Ill. 2d at 459, 884
       N.E.2d at 134 (holding that participant liability for injuries in full-contact sports such as ice
       hockey or tackle football may be premised either on intentional injury or on conduct outside
       the ordinary activities associated with the sport); Pickel v. Springfield Stallions, Inc., 398 Ill.
       App. 3d 1063, 1067-68, 926 N.E.2d 877, 882-83 (2010) (explaining that in other contact
       sports, participant liability may be premised on intentional misconduct or “conscious
       disregard” for another participant’s safety). Here, we have already concluded that the contact
       sports exception does not apply; thus, the plaintiff only needs to prove that the defendants’
       actions in setting up the field were negligent and that their negligence caused his injuries.

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¶ 20        We are also not persuaded that the plaintiff’s deposition testimony regarding Klenke’s
       intent is sufficient to remove genuine questions of fact as to whether the setup of the softball
       field proximately caused the plaintiff’s injuries. The plaintiff testified that he discussed the
       incident with Jessica Ketchum. Ketchum was the scorekeeper for the plaintiff’s team during
       the game in question, and she saw the collision between the plaintiff and Klenke. According
       to the plaintiff, he and Ketchum discussed their belief that Klenke collided with the plaintiff
       intentionally. This belief was based on the positioning of Klenke’s shoulder as he ran into
       the plaintiff. The plaintiff further testified that, if Klenke collided with him deliberately,
       neither the double-base system nor a running lane would have prevented the collision.
       However, the plaintiff also admitted that he did not see Klenke because his attention was
       focused on the ball, and he also admitted that he did not actually know what Klenke’s intent
       was. This deposition testimony is not sufficiently “deliberate, clear, and unequivocal” to
       qualify as a judicial admission. See In re Estate of Rennick, 181 Ill. 2d 395, 406, 692 N.E.2d
       1150, 1155 (1998). In addition, we note that Klenke denied intentionally colliding with the
       plaintiff. Thus, there is a genuine question remaining as to whether Klenke intentionally
       caused the collision. This question precludes summary judgment.
¶ 21        We conclude that the contact sports exception does not apply to the facts before us. We
       further conclude that the court erred in granting the defendants’ motion for summary
       judgment. We therefore reverse the court’s judgment and remand for further proceedings.

¶ 22      Reversed; cause remanded.




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