IN THE SUPREME COURT OF IOWA

No. 07–1333

Filed October 22, 2010

BENJAMIN FELD, LARRY FELD, and JUDITH FELD,

Appellants,

vs.

LUKE BORKOWSKI,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Carroll County, Dale E. Ruigh, 

Judge.

Plaintiffs appeal from summary judgment entered by the district court 

in an action by one participant in a softball practice against a coparticipant 

for injuries sustained when struck by a bat. DECISION OF COURT OF 

APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED; CASE 

REMANDED FOR TRIAL.

Gregory J. Siemann of Green, Siemann & Greteman, P.L.C., Carroll, 

and Dan Connell of Dan Connell, P.C., Storm Lake, for appellants.

Joel T.S. Greer of Cartwright, Druker & Ryden, Marshalltown, for 

appellee.
2

CADY, Justice.

This appeal arises from an action by a participant in a softball practice 

against a coparticipant for head injuries suffered from a flying bat when the 

defendant released his bat while hitting a pitched ball. We primarily 

consider the application of the contact-sports exception and the sufficiency 

of evidence to support a finding of recklessness. The district court granted 

summary judgment for the defendant. We transferred the case to the court 

of appeals, who affirmed the decision of the district court. We granted 

further review. On our review, we vacate the decision of the court of appeals, 

reverse the decision of the district court, and remand for trial. 

I. Background Facts and Prior Proceedings.

Benjamin Feld and Luke Borkowski were teammates on an intramural

slow-pitch sixteen-inch softball team, composed of male high school 

students, during the summer of 2005. Feld and Borkowski were experienced 

players, having played various levels of the game throughout their 

childhoods. The team assembled to play games against other teams and to 

practice among themselves. Practice primarily consisted of batting practice,

which allowed each player the opportunity to swing at approximately twenty 

pitches before the next player rotated into the batter’s position. The team 

members who were not batting or pitching played various field positions, 

except catcher, and attempted to catch or retrieve the balls.

During a batting practice on June 2, 2005, Feld was playing first base 

while Borkowski batted. Home plate and first base were sixty feet apart, the 

customary arrangement in slow-pitch softball. Borkowski, a right-handed 

hitter, swung at pitch after pitch using an aluminum bat. He was known as 

a strong hitter. After about a dozen pitches, Borkowski hit a high fly ball

into foul territory on the third base side of the field. A split second after the 

bat made contact with the ball, it left Borkowski’s hands. Most of the team 
3

watched the fly ball sail over the head of the third baseman as the bat,

almost simultaneously, flew directly down the first baseline, in a horizontal 

helicopter motion, toward Feld. Borkowski yelled Feld’s nickname in an 

effort to warn him of the flying bat. The warning was ineffective, and the bat 

struck Feld in the forehead. Feld suffered a severe injury to his left eye. 

Feld and his parents filed a negligence action against Borkowski. The 

lawsuit sought damages for medical expenses and other associated damages. 

Borkowski denied the claims of negligence in his answer to the petition and 

asserted assumption of the risk as an affirmative defense. He also claimed 

softball was a contact sport, and no liability could be imposed because his 

conduct was not reckless. Following discovery, Borkowski moved for 

summary judgment on the grounds liability was limited under the contactsports exception and the facts of the incident failed to generate a jury 

question that his conduct was reckless. 

In resistance to the motion for summary judgment, the Felds first 

argued that softball is not a contact sport, as a matter of law, and therefore 

did not qualify for the exception to the rule of negligence. In the alternative,

the Felds claimed Borkowski’s actions in releasing the bat constituted 

reckless conduct. In support of this argument, the Felds presented expert 

testimony from Ed Servais, head baseball coach at Creighton University. 

Servais is an experienced college coach and a former baseball player. He

testified he had never seen a right-handed batter hit a ball left of third base 

and lose control of a bat by releasing it in the direction of first base. 

Further, Servais testified the only way a right-handed batter could hit a first 

baseman with a bat in such a manner is if the batter “followed through and 

rotated around after striking the foul ball and deliberately threw the bat or 

let go of the bat in such a way that it was flung with considerable force 

through the air towards the first base position.” Thus, the Felds claimed, 
4

even if the contact-sports exception to negligence applied, an issue of 

material fact existed as to whether Borkowski acted recklessly or 

intentionally in losing control of his bat.

The parties disputed the manner in which the bat left Borkowski’s

hands after he hit the pitch. Borkowski maintained the bat slipped from his 

sweaty hands on the hot June day, he did not rotate his body completely 

around before releasing the bat, and he did not intentionally throw the bat 

towards first base. Members of the team, including Borkowski, referred to 

the incident as “a freak accident.” 

Following a hearing, the district court granted Borkowski’s motion for 

summary judgment. The court found softball qualified as a contact sport

because it is an “athletic activit[y] which involve[s] the general risk of 

physical injury to the participants,” and liability could only be based on 

reckless or intentional conduct. The court concluded Borkowski’s actions 

were not outside the normal course of playing softball because any 

misconduct would have occurred while swinging at a pitch during softball 

practice. Although the court recognized Feld may not have accepted the risk 

of being struck by a bat at first base, it concluded the risks were not specific 

to the type of injury he received, but instead included all inherent dangers in 

the normal course of playing softball. The district court also found the 

contact-sports exception barred the claim against Borkowski because the 

Felds failed to allege in their petition that Borkowski’s conduct was reckless 

or deliberate. 

The Felds filed an appeal from the district court’s order granting 

summary judgment. They claimed the district court erred in finding softball 

to be a contact sport. Additionally, they claimed the summary judgment 

facts generated a jury question on whether the conduct of Borkowski was 

reckless. Finally, they claimed the contact-sports exception was inapplicable 
5

to the particular circumstances of this case because those circumstances 

showed Feld did not accept the risk of the particular injury he sustained. In 

the end, the Felds believed the case should be tried under a negligence 

standard, yet based solely on the argument that softball was not a contact 

sport. 

We transferred the case to the court of appeals. The court of appeals 

affirmed the district court, concluding physical contact is generally inherent 

in the game of softball and there was no conclusive evidence of recklessness 

sufficient to present an issue of material fact for a fact finder. The Felds

sought, and we granted, further review.

II. Standard of Review.

We review a district court’s ruling on a motion for summary judgment 

for correction of errors at law. Sweeney v. City of Bettendorf, 762 N.W.2d 

873, 877 (Iowa 2009). Summary judgment is appropriate when the moving 

party proves no genuine issue of material fact exists on the record. Berte v. 

Bode, 692 N.W.2d 368, 370 (Iowa 2005). If reasonable minds can differ on 

how a material fact issue should be resolved, summary judgment should not 

be granted. Hills Bank & Trust Co. v. Converse, 772 N.W.2d 764, 771 (Iowa 

2009). We make every legitimate inference that can be reasonably deduced 

from the evidence in favor of the nonmoving party. Id.

III. Analysis.

A. Contact-Sports Exception. As a general rule, our law recognizes 

that every person owes a duty to exercise reasonable care to avoid causing 

injuries to others. Thompson v. Kaczinski, 774 N.W.2d 829, 834 (Iowa 2009); 

Restatement (Third) of Torts: Liability for Physical and Emotional Harm

§ 7(a), at 77 (2010) [hereinafter Restatement (Third)]. A breach of this duty 

will subject the actor to liability if the injury caused by the actor’s conduct 

resulted from the risks that made the actor’s conduct negligent.
6

Restatement (Third) § 6, at 67; Thompson, 774 N.W.2d at 839. In most all 

cases involving physical harm, we have adopted the view that a duty of 

reasonable care exists, and it is for the fact finder to consider the specific 

facts and circumstances to determine if the actor breached the duty. 

Thompson, 774 N.W.2d at 834–35. 

While the duty to exercise reasonable care accompanies each 

individual in most all activities of life, some activities or circumstances have 

been excepted from the reasonable-care duty in favor of the imposition of a 

less stringent duty of care for participants in the activity to protect others 

from injury. See id. (recognizing occasions when countervailing principles 

and policies justify displacement or modification of the general duty to 

exercise reasonable care). One such activity that has been identified as an 

exception is contact sports. Prior to our decision in Thompson to follow the 

analytical framework of the Restatement (Third) of Torts for claims of 

negligence involving physical harm, we followed other states in excepting 

participants in contact sports from constraining their actions under the 

conventional duty to act as a reasonable person. See Leonard ex rel. Meyer 

v. Behrens, 601 N.W.2d 76, 81 (Iowa 1999).1 In finding the game of paintball 

 1The Restatement (Third) provides the general duty to exercise reasonable care may 

be modified or displaced “when an articulated countervailing principle or policy” justifies a 

special rule of liability. Restatement (Third) § 7, at 77. Although we adopted the contactsports exception prior to Thompson, our decision in Leonard fits within a special rule for 

liability in the sports context found in the Restatement (Third) of Torts. See Leonard, 601 

N.W.2d at 79–80 (striking a balance between competing interests, including the need to 

preserve “vigorous and active participation in contact sports without fear of liability for 

merely negligent bodily contact,” and the need to diminish public-policy concerns over the 

flood of litigation that would result under a negligence standard against the interest in 

protecting those who participate in those events). Thus, Leonard followed the Thompson 

framework, and our adoption of the Restatement (Third) in Thompson did not undermine our 

prior adoption of the contact-sports exception in Leonard. In fact, the Restatement (Third) 

specifically recognizes that the contact-sports exception is an example of a recognized 

exception to the reasonable-care standard under its approach. Restatement (Third) § 7 cmt. 

a, at 78. Importantly, the Restatement (Third) does not focus on how courts should identify 

occasions when a different duty replaces the reasonable-care standard. Instead, it 

expresses the notion that a reasonable-care duty applies in each case unless a special duty, 
7

to be a contact sport in Leonard, we imposed a duty for participants in the 

sport to merely refrain from reckless or intentional conduct. Id. at 81 (“We 

therefore hold that paintball is a contact sport for which a participant’s 

liability is determined under a recklessness standard.”); see also Pfister v. 

Shusta, 657 N.E.2d 1013, 1013 (Ill. 1995) (holding contact-sports exception 

imposes “the duty to refrain from willful and wanton or intentional 

misconduct”); Restatement (Third) § 7 cmt. a, at 78 (recognizing “some 

courts have modified the general duty of reasonable care for those engaging 

in competitive sports to a more limited duty to refrain from recklessly 

dangerous conduct”). This standard recognizes that known risks associated

with a contact sport are assumed by participants in the sport, and it is 

inapposite to the competitiveness of contact sports to impose a duty on 

participants to protect coparticipants from such known and accepted risks 

through the exercise of reasonable care.2 See Leonard, 601 N.W.2d at 79 & 

n.3 (noting assumption of the risk in its primary sense is a defense to 

negligence). The standard also recognizes that athletes who step onto the 

playing field to compete are not completely free from legal responsibility for 

their conduct that creates a risk of injury, but are restrained under a 

substantially lower duty of care. See Nabozny v. Barnhill, 334 N.E.2d 258,

260–61 (Ill. App. Ct. 1975). 

__________________________

like the contact-sports exception, is specifically recognized. Id. § 7, at 77. The Restatement 

(Third) primarily sought to eliminate specific arguments that no duty of care exists under a 

particular set of circumstances. Id. § 7 cmt. a, at 77. 

2The assumption-of-the-risk underpinning of the contact-sports exception does not 

mean that a participant in a contact sport is barred from recovery due to his own 

contributory negligence. The assumption-of-the-risk doctrine, in that respect, has been 

abolished in Iowa. See Coker v. Abell-Howe Co., 491 N.W.2d 143, 148 (Iowa 1992). Rather, 

assumption of the risk in this context merely reflects the evolution of the policy basis for 

this modified duty rule. This rule does not bar plaintiffs in contact sports from recovery 

altogether, but instead recognizes that the various risks associated with contact sports 

justify a modified duty of care. 
8

In examining the extent or scope of the contact-sports exception, we 

recognize a sport involving contact between participants or contact with 

instruments or objects used by participants provides knowledge and 

understanding to the participants of the inherent risks of harm that can be 

created. This applies not only by the conduct that occurs within the rules 

and objectives of the sport, but also by conduct from participants who fail to 

properly execute an activity contemplated by the sport. See Leonard, 601 

N.W.2d at 79 (recognizing that participants in athletic events voluntarily 

endure “risks normally associated with the activity”). As we observed in 

Leonard, the violation of a sport’s rules creates a risk of injury to

participants that would not necessarily exist without the infraction, such as 

when players run into punters in football, midfielders are high-sticked in 

lacrosse, basketball players are fouled, batters are hit by pitched balls in 

baseball, and hockey players are tripped. Id. at 80. Yet, such contact is 

nevertheless inherent in each game because no participant can play the 

game error free. Thus, players accept risks of harm inherent in a sport both 

derived from activities that are executed as contemplated by the sport and 

activities that are improperly executed. For example, a base runner in 

softball can be struck and injured by a ball hit by a batter or can be struck 

and injured by a wild throw from a fielder. In both instances, the risk of 

harm from contact is inherent in the game, even though the batter is 

credited with a hit and the fielder is charged with an error. These known 

risks, under the contact-sports exception, support a duty of care less 

stringent than reasonable care. 

In contrast, conduct by participants done with reckless disregard for 

the safety of others or with an intent to harm others beyond the rules and 

objectives of the sport creates risks that are not inherent in the sport. See 

id. at 79–80. Such risks do not inhere in the sport because conduct 
9

involving recklessness or intent to harm presents risks substantially greater 

than risks of negligent conduct. See Restatement (Second) of Torts § 500, at 

587 (1965) [hereinafter Restatement (Second)] (risk involved in reckless 

conduct is “substantially greater” than risk involved in negligent conduct).3 

For example, the risk of harm to a base runner in softball is much greater 

when a fielder throws a ball intended to hit the base runner than when a 

fielder throws a ball to another fielder, intending for the other fielder to 

complete the play by tagging or forcing the base runner out, but instead 

misfires and hits the runner with the ball. Thus, the recklessness standard

captures conduct that imposes risks of harm to participants that are not a 

normal part of the sport. See Leonard, 601 N.W.2d at 79–80 (“[I]njuries 

inflicted intentionally or as the result of reckless disregard for safety are not 

assumed.”). 

The parties to this case do not challenge the viability of the contactsports exception in Iowa, but only challenge its application to the sport of 

softball. Our obligation on appeal is to decide the case within the framework 

of the issues raised by the parties. Worthington v. Kenkel, 684 N.W.2d 228, 

234 (Iowa 2004). Consequently, we do no more and no less.4 

 3The American Law Institute published a revised definition of “recklessness” in its 

most current Restatement. Restatement (Third) § 2, at 16–17. The drafters acknowledge 

that the current standard of recklessness is “somewhat more restrictive” than the 

Restatement (Second) standard. Id. cmt. c, at 19. Primarily, the standard provided in the 

Restatement (Third) differs from the Restatement (Second) by focusing on the obviousness of 

the danger presented by the conduct. Id. We do not address the issue of adopting the 

substance of the Restatement (Third) standard for recklessness in this case.

4We recognize our obligation to construe the law in resolving legal issues presented 

on appeal independent of any construction advocated by the parties. The arguments of the 

parties do not constrain us in our obligation to search for and apply controlling law to 

resolve legal issues. See Rants v. Vilsack, 684 N.W.2d 193, 211–12 (Iowa 2004) (applying 

controlling law to reach a result not advocated by either party). However, in the absence of 

the most cogent circumstances, we do not create issues or unnecessarily overturn existing 

law sua sponte when the parties have not advocated for such a change. See, e.g., Pierce v. 

Pierce, 287 N.W.2d 879, 882 (Iowa 1980) (recognizing subject matter jurisdiction issues will 

be considered sua sponte because an appeal pursuant to improper jurisdiction is contrary 

to governing rules of procedure); Sisson v. Janssen, 244 Iowa 123, 130–31, 56 N.W.2d 30, 
10

The threshold inquiry is whether the activity or sport engaged in by 

the parties was an activity or game covered by the contact-sports exception. 

This analysis does not focus on whether the participants were engaged in a 

formally organized or coached sport, but instead centers on whether the 

activity inherently involves the risk of injurious contact to participants. See 

Leonard, 601 N.W.2d at 80–81 (applying the recklessness standard to an 

informal game of paintball and rejecting formality and organization as 

threshold qualifications). Not all sports inherently involve contact capable of 

injury. Yet, even the description of a particular sport as a contact sport can 

vary depending upon the purpose for which a sport is classified as a contact 

activity. See 34 C.F.R. § 106.41(b) (2009) (defining contact sports for 

purposes of gender discrimination on school sports teams and excluding 

softball as a contact sport). Notwithstanding, the purpose of deciding 

whether an activity is a contact sport is to determine if the risk of harm of 

injurious contact was known and understood as a part of the sport. If the 

risk of injury is a part of the sport, then the participants must only refrain 

from reckless or intentional conduct causing injury. 

B. Softball as a Contact Sport. With this background in mind, we 

turn to answer the issue presented by the arguments of the parties. In the 

sport of softball, the risk of injury to participants includes the risk of contact 

between a participant and a bat swung by a batter, as well as other risks of 

__________________________

34 (1952) (noting the issue of “unclean hands” may be raised sua sponte by the court, even 

though no party advocates it due to the strong public interest in equitable proceedings). See 

also Varnum v. Brien, 763 N.W.2d 862, 884 n.9 (Iowa 2009) (questioning sua sponte the 

viability of the threshold test used to dispose of equal protection claims, but refusing to 

abandon the test until parties in a future case could present the full arguments since the 

plaintiffs nevertheless satisfied the threshold test and suffered no prejudice by its 

application). In this case, we are restrained to apply the controlling law as advocated by the 

parties, and we do not consider or forecast whether or not that controlling law should be 

abandoned or changed in favor of a duty of reasonable care or modified by a standard 

staking out some middle ground. 
11

contact from other actions by participants that are part of the game. Batting 

and swinging a bat are normal and expected activities of the game, and 

participants familiar with the sport know and understand that a risk of 

harm is presented to other participants by the activity. In particular, a bat 

can be released from the hands of a batter during a swing. This scenario

presents a risk of harm from injurious contact between the bat and other 

participants on or around the playing field. 

Nevertheless, the Felds argue that liability should not be limited to

recklessness or intentional conduct by generally labeling a sport as a contact 

sport. Instead, they argue the particular contact involved in causing the 

injury in each case must be analyzed to determine if the specific incident 

involved contact that should have been anticipated. The Felds assert this 

analysis is consistent with the underlying assumption-of-the-risk premise of 

the contact-sports exception. Thus, they argue softball may be a contact 

sport for a player like a catcher, but not for an individual playing first base 

when a right-handed hitter hits a ball left of the third baseline. More 

specifically, the Felds argue no first baseman could have anticipated harm 

from a bat under the circumstances of the case. 

In Leonard, we examined the nature, objectives, rules, and traditions

of the particular sport or game to determine if paintball was a contact sport 

so as to exempt participants from liability for injury to coparticipants

predicated on negligence. 601 N.W.2d at 81. We did not dissect the game to 

determine if certain parts should be subjected to the exception, but looked at 

the game itself. This approach is consistent with the purpose of maintaining 

the desired spirited competition in sports; the law cannot expect competitors 

in a contact sport to play under multiple standards of care, just as it cannot 

expect competitors in a contact sport to apply standards of reasonableness 
12

when engaged in conduct that only presents a risk of harm inherent in the 

sport. 

Thus, we conclude softball for purposes of tort liability is a contact 

sport, and this conclusion is sufficient to transform liability for an injury 

sustained by a participant while engaged in the sport from a standard of 

negligence to a standard of recklessness. Clearly, batting is normal activity 

in the sport of softball and creates a risk of harm to participants in a 

number of ways, including a risk that the bat will be released during the 

swing in some way and will become an instrument of harm to participants in 

some way. Other jurisdictions that have examined liability in the context of 

softball have similarly concluded that softball presents inherent risks that 

qualify the sport for the recklessness standard. See, e.g., Landrum v. 

Gonzalez, 629 N.E.2d 710, 715 (Ill. App. Ct. 1994); Picou v. Hartford Ins. Co., 

558 So. 2d 787, 790 (La. Ct. App. 1990); Crawn v. Campo, 643 A.2d 600, 

608 (N.J. 1994); O’Neill v. Daniels, 523 N.Y.S.2d 264, 264–65 (N.Y. App. Div. 

1987). As such, the contact-sports exception applies in this case, and 

Borkowski can only be liable for the injurious contact with Feld if his actions 

were intentional or reckless. 

C. Reckless Conduct. The district court concluded the Felds failed 

to claim in their petition that Borkowski was reckless, and the undisputed 

facts presented in the course of the summary judgment proceedings did not 

support a finding of recklessness as a matter of law. It found Feld accepted

the risk of harm presented by a batter who negligently released a bat from 

his hands while swinging at a pitch, even though it would be unforeseeable 

that a first baseman would be in the zone of danger for contact with a bat by 

a right-handed hitter who had swung and hit the pitch with the bat. 

We commence our review of this portion of the district court decision 

by recognizing that our inquiry is to determine whether the Felds presented 
13

facts sufficient to support a jury question on the issue of whether 

Borkowski’s actions in releasing the bat during the swing was reckless. We 

begin by noting it is not fatal to the Felds’ lawsuit that he only asserted a 

claim for negligence in his petition rather than asserting a claim for both 

negligence and recklessness. Borkowski raised the contact-sports exception 

as a defense. The contact-sports exception was also the basis for 

Borkowski’s motion for summary judgment, and the Felds resisted the 

summary judgment by arguing Borkowski’s conduct amounted to 

recklessness. The Felds’ resistance to the motion for summary judgment 

placed the issue of recklessness squarely in play, predicated on the 

understanding that it supported an actionable claim for liability based on 

recklessness.5 See Rieff v. Evans, 630 N.W.2d 278, 292 (Iowa 2001) (“[W]e 

do not require a petition to allege a specific legal theory.”); see also Smith v. 

Smith, 513 N.W.2d 728, 730 (Iowa 1994) (“A petition gives ‘fair notice’ if it 

informs the defendant of the incident giving rise to the claim and of the 

claim’s general nature.”). Thus, the question is whether the Felds produced 

sufficient evidence of recklessness to withstand summary judgment. 

We find the affidavit from Ed Servais, the long-time baseball coach, 

supported a jury question on recklessness. The facts are undisputed that 

Borkowski swung at a pitch and struck the bottom portion of the softball 

with the bat. The contact between the bat and ball resulted in a high foul 

ball outside the third baseline. The path of the ball after it was hit revealed 

 5The contact-sports exception is not an affirmative defense to a claim for negligence 

so as to require the defendant to plead and prove the defense. It is a doctrine that limits 

liability by modifying the standard of care. Leonard, 601 N.W.2d at 81. Once an activity is 

determined to be a contact sport, a plaintiff must plead and prove a claim for recklessness. 

See 57A Am. Jur. 2d Negligence § 274, at 339 (2004) (“Once an actor’s conduct is 

determined to be reckless, his or her liability for harm resulting from that behavior is 

determined by the same rules that determine the liability of a negligent actor; to state a 

claim upon which relief may be granted, the plaintiff must still prove facts demonstrating 

the existence of the basic elements of duty, breach, proximate cause, and damages.”). 
14

Borkowski swung too early to hit the pitch into the playing field. Up to the 

point of the bat’s contact with the pitch, nothing occurred out of the ordinary 

to support a claim of recklessness. However, Borkowski’s actions that

followed during the split second after he struck the ball were far from 

normal. In his experience as a player and coach, Servais had never seen or 

even heard of a first baseman being hit by a bat released from the hands of a 

right-handed hitter who had hit the pitched ball to the left side of the third 

baseline. Moreover, Servais attempted to duplicate such an occurrence

without success, which led him to the conclusion that Borkowski must have 

deliberately released the bat in a very abnormal, contorted act of 

recklessness. 

Importantly, the affidavit of Servais supports a reasonable conclusion 

that Borkowski did not continue to swing the bat in a normal manner after 

he hit the ball. The rare abnormality of the bat’s flight pattern after the ball 

was struck at least supports an inference of recklessness. An act performed 

by a participant in a sport that produces a radically different result from the 

normal and expected result of the act, even when performed negligently,

gives rise to an inference that the result was purposeful. 

A party resisting summary judgment is entitled to “every legitimate 

inference that can reasonably be deduced from the evidence.” Cent. Nat’l 

Ins. Co. v. Ins. Co. of N. Am., 522 N.W.2d 39, 42 (Iowa 1994). Here, the 

Servais affidavit gives rise to a reasonable inference of recklessness. 

Considering all the facts presented in the summary judgment proceedings, a 

jury could conclude Borkowski, knowing he had swung ahead of the pitch 

and that his body was out of position to make solid contact with the ball,

continued his swing in a very unorthodox manner and released the bat in 

momentary frustration and anger. This inference is sufficient to support a 

jury question on recklessness. See Leonard, 601 N.W.2d at 80 (“[I]n order to 
15

prove recklessness as the basis for a duty, a plaintiff must show that the 

actor has intentionally done an act of an unreasonable character in 

disregard of a known risk or a risk so obvious that the actor must be taken 

to have been aware of it and so great as to make it highly probable that harm 

would follow.”); accord Restatement (Second) § 500, at 587.

IV. Conclusion. 

We conclude the district court erred in granting summary judgment. 

We vacate the decision of the court of appeals, reverse the judgment of the 

district court, and remand for further proceedings. 

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT 

JUDGMENT REVERSED; CASE REMANDED FOR TRIAL. 

All justices concur except Wiggins, J., who concurs specially, and 

Appel, J., who concurs specially with Wiggins, J., joining divisions I and 

III(A) and Hecht, J., joining in its entirety. 
16

#07–1333, Feld v. Borkowski

WIGGINS, Justice (concurring specially).

I concur in the result by joining in divisions I and III(A) of Justice 

Appel’s special concurrence. The majority opinion clings to the contactsports exception on the grounds neither party urges its abandonment. As 

Justice Appel rightly points out in division I of his special concurrence, the 

question of the continued viability of the contact-sports exception is clearly 

before us. Moreover, we cannot let the parties’ narrow framing of an issue 

preclude us from applying the proper analysis to an issue. In past cases 

where the parties did not raise the applicability of the Restatement (Third) of 

Torts: Liability for Physical and Emotional Harm, we have applied the 

Restatement (Third) when necessary to properly analyze the issues before the 

court. Brokaw v. Winfield-Mt. Union Cmty. Sch. Dist., 788 N.W.2d 386, 391

(Iowa 2010); Royal Indem. Co. v. Factory Mut. Ins. Co., 786 N.W.2d 839, 849

(Iowa 2010); Van Fossen v. MidAmerican Energy Co., 777 N.W.2d 689, 696–

98 (Iowa 2009); Thompson v. Kaczinski, 774 N.W.2d 829, 834–40 (Iowa 

2009).

The procedural posture of this case makes it even more important for 

us to address the issue under the Restatement (Third). The majority opinion 

reverses the district court’s order granting Borkowski’s motion for summary 

judgment and remands the case for a trial on the merits. We have recently 

adopted section seven of the Restatement (Third) as the proper duty analysis 

in a negligence case. Thompson, 774 N.W.2d at 834–36. Therefore, the duty 

analysis under section seven of the Restatement (Third) is the controlling law 

on remand. The Restatement (Third) leaves the question open as to whether 

the court should instruct on a more limited duty when competitive sports are 

involved. Restatement (Third) of Torts: Liability for Physical and Emotional 

Harm § 7 cmt. a, at 77–78 (2010). The majority does not reach this issue,
17

finding the parties failed to preserve and raise it. As I previously noted, I 

disagree and say we should reach this issue now. 

By not reaching this issue, the majority leaves the district court and 

the parties with a terrible dilemma. The court has an obligation to cover all 

the legal principles involved in a case when it instructs the jury. Greninger 

v. City of Des Moines, 264 N.W.2d 615, 617 (Iowa 1978). Accordingly, the 

court must consider section seven of the Restatement (Third) when it writes 

its instructions. The Felds will probably urge the court to hold the contactsports exception does not have a sound foundation in today’s sports world 

and that it has no viability under a Restatement (Third) analysis. Therefore, 

they will urge the court to instruct the jury as it would in any other 

negligence action. On the other hand, Borkowski will probably urge the 

court to keep the contact-sports exception and request the court to instruct 

the jury using a recklessness standard. At that time, the district court will 

have to decide if the contact-sports exception is still viable under a 

Restatement (Third) analysis. No matter how the court rules, we will 

probably see another appeal where we must decide if the contact-sports 

exception is still viable under a Restatement (Third) analysis. 

In writing this concurrence, I feel compelled to ask the majority a 

couple of questions. Why should we leave the question unanswered when 

the district court will be confronted with it on remand? Why are we creating 

a potential appeal on this issue under the Restatement (Third) when we can 

answer the question now? It seems to me, for us not to address the issue 

creates extra expense for the parties and the court. Accordingly, I would 

address the issue head on and give the contact-sports exception a proper 

burial. 
18

#07–1333, Feld v. Borkowski

APPEL, Justice (concurring in part and dissenting in part).

This case raises two substantive issues. The first substantive issue is 

whether there is a special limited-duty rule for contact sports under Iowa law 

that applies to the game of softball. If so, a second question arises, namely, 

whether the contact-sports exception should prevent liability based on 

negligence under the facts and circumstances of this case. 

For the reasons stated below, I would reject application of the contactsports exception to softball. In the alternative, I would hold that there is a 

factual question regarding whether the conduct in this case was outside the 

scope of the ordinary risks of softball and, therefore, subject to liability 

based on negligence.

I. Matters Properly Before the Court. 

In the proceedings below, the plaintiff framed the argument narrowly 

as to whether the game of softball falls within the contact-sports exception. 

In making this argument, the plaintiff clearly and indisputably has 

maintained the case should be tried as an ordinary negligence claim. The 

plaintiff, however, did not argue that the contact-sports exception should be

eliminated altogether. The question thus arises whether it is proper for the 

court to address the larger question in this appeal.

The question of when an issue not argued by the parties should be 

decided by the court involves a number of considerations. Although 

sometimes discussed in a conclusory fashion as involving “issue 

preservation” or “waiver,” the field is, in fact, considerably more nuanced. 

On the one hand, the judicial process is normally driven by the 

parties. They bring their cases to the court and ask the court to decide the 

issues they present. Judges are not advocates who reach out to decide 

questions the parties themselves either deem unimportant or, for whatever 
19

reasons, fail to raise. The job of the court is to decide concrete cases the 

parties bring to it. 

On the other hand, judges should not allow the parties’ framing of the 

issues to usurp the judicial function. The courts, and not the parties, are 

responsible for the coherent development of law. This is particularly true 

when courts are performing their common law function. A judicially-driven 

decision may produce a more accurate statement of law. Amanda Frost, The 

Limits of Advocacy, 59 Duke L.J. 447, 452 (2009) [hereinafter Frost]. The 

courts are not some kind of private arbitration service working for the parties 

and no one else. Id. at 474. 

It is the tension between these two roles of deciding cases and 

developing the law that must be resolved in this case when we consider 

whether to address the ongoing validity of the contact-sports exception when 

the parties have declined to expressly address it in their briefs. See 

generally Chad M. Oldfather, Defining Judicial Inactivism: Models of 

Adjudication and the Duty to Decide, 94 Geo. L.J. 121, 164–75 (2005)

(discussing the scope of a court’s adjudicative duty). 

The United States Supreme Court has addressed this kind of question 

by distinguishing between a claim and an argument. As noted by Sarah 

Cravens, the Supreme Court has made it clear that once a claim is properly 

presented, a party is not limited to arguments presented below. Sarah M. R. 

Cravens, Involved Appellate Judging, 88 Marq. L. Rev. 251, 259 (2004) 

[hereinafter Cravens]; see also Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 

374, 378–83, 115 S. Ct. 961, 965–66, 130 L. Ed. 2d 902, 909–13 (1995). 

Further, the Court has emphasized that it “is not limited to the particular 

legal theories advanced by the parties, but rather retains the independent 

power to identify and apply the proper construction of governing law.” 

Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99, 111 S. Ct. 1711, 1718, 
20

114 L. Ed. 2d 152, 166 (1991). Whether to exercise this independent power 

is said to be a question of prudence. U.S. Nat’l Bank of Or. v. Indep. Ins. 

Agents of Am., Inc., 508 U.S. 439, 446–47, 113 S. Ct. 2173, 2178, 124 L. Ed. 

2d 402, 412–13 (1993).

The Supreme Court has been willing to employ this flexible, 

discretionary approach to determining whether it should decide an issue not 

argued by the parties in several important cases. For example, in Erie 

Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), 

the United States Supreme Court overruled Swift v. Tyson, 41 U.S. 1, 10 L. 

Ed. 865 (1842), even though neither party argued that it should be 

overturned. Frost, 59 Duke L.J. at 450. In Washington v. Davis, 426 U.S. 

229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976), the Supreme Court held that 

the constitution prohibited only intentional discrimination although both 

parties indicated that it barred disparate racial impact. Id. In Dickerson v. 

United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000), the 

Supreme Court considered the question of whether a statute governing the 

admission of confessions displaced Miranda even though the question was 

not raised by the parties. Id. 

The leading commentator on Supreme Court practice has stated that 

the decision to confront a question not raised by the petition for certiorari 

“ ‘is not circumscribed by any particular formula’ ” and “ ‘reflects the Court’s 

discretionary authority to dispose of cases in what it determines to be the 

most sensible and reasonable way.’ ” Id. at 463 (quoting Robert L. Stern et 

al., Supreme Court Practice 346 (7th ed. 1993)). While the Supreme Court 

has stated that it “ordinarily” does not consider questions outside the 

certiorari petition, the practice is “prudential,” not jurisdictional. See Yee v. 

City of Escondido, 503 U.S. 519, 535, 112 S. Ct. 1522, 1532–33, 118 L. Ed. 

2d 153, 170 (1992); Blonder-Tongue Labs. v. Univ. of Ill. Found., 402 U.S. 
21

313, 320 n.6, 91 S. Ct. 1434, 1439 n.6, 28 L. Ed. 2d 788, 794–95 n.6 (1971) 

(stating that the rule “does not limit our power to decide important questions 

not raised by the parties.”). On occasion, the Supreme Court orders 

supplemental briefing by the parties or amici. Cravens, 88 Marq. L. Rev. at 

268.

High courts in other states have, from time to time, been willing to 

consider arguments not raised by the parties. Every law student studies the 

famous case of MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916). In 

that case, the plaintiff sought to sue an automobile manufacturer for an 

allegedly defective vehicle. MacPherson, 111 N.E. at 1051. Under existing 

law, however, the doctrine of privity barred the plaintiff from bringing a claim 

against the manufacturer, with whom the plaintiff had no direct contact, 

unless the plaintiff could show that the automobile was “inherently 

dangerous.” Id. As a result, the plaintiff argued that an automobile was 

“inherently dangerous.” Id.

Justice Cardozo did not address the narrow argument made by the 

plaintiff. Instead, after canvassing the applicable law, Cardozo held that the 

larger doctrine which required privity of contract for a purchaser to bring a 

claim against a manufacturer was no longer good law. Id. at 1053. 

According to Cardozo, “We have put aside the notion that the duty to 

safeguard life and limb, when the consequence of negligence may be 

foreseen, grows out of contract and nothing else.” Id.

Although Iowa courts are not governed by the “case or controversy” 

restrictions in Article III of the United States Constitution, we have held that 

a plaintiff may not raise a new theory of liability after trial. See, e.g., Field v. 

Palmer, 592 N.W.2d 347, 351 n.1 (Iowa 1999); Shill v. Careage Corp., 353 

N.W.2d 416, 420 (Iowa 1984); Gosha v. Woller, 288 N.W.2d 329, 331 (Iowa 

1980). Our cases, however, are generally not inconsistent with the approach 
22

of the United States Supreme Court distinguishing between a claim, which 

must be raised below and argued in briefs on appeal, and an argument in 

support of a preserved claim.

Indeed, we have been willing to relax ordinary rules of issue 

preservation based on notions of judicial economy and efficiency. For 

example, we may decide evidentiary questions not presented to the district 

court where we reverse a decision of the district court but the record reveals 

an alternate ground for admission of the evidence. DeVoss v. State, 648 

N.W.2d 56, 60–63 (Iowa 2002). 

We have also stated that we will address issues that are “incident” to a 

determination of other issues properly presented. Presbytery of Se. Iowa v. 

Harris, 226 N.W.2d 232, 234 (Iowa 1975). In this case, it seems to me, the 

issues here are so intertwined—namely, whether the contact-sports 

exception should be embraced and whether a contact-sports exception 

should apply in softball, that there is no insurmountable obstacle to our 

consideration of the larger issue. 

In summary, we are not confronted with a case where the issue—

whether the plaintiff may proceed with a cause of action based on 

negligence—was not raised or ruled upon by the district court. The case 

thus does not fall within the hardcore area where arguments on appeal 

should rarely, if ever, be entertained. Nor is this a case where the factual 

record developed below is inadequate, thereby preventing meaningful 

appellate review. 

On the other hand, there are some good reasons to consider the larger 

question. This case is a classic example of intertwined issues. It is one 

thing to decline to address an issue not raised where orderly development of 

the law is not affected, but it is quite another thing to refuse to consider the 
23

policy underpinnings of a doctrine while at the same time extending it into 

new and uncharted territory. 

Because the parties chose to present only the narrow argument that 

the contact-sports exception should not be extended to softball, the majority 

sees itself as locked into the contact-sports doctrine and has no choice but 

to extend it outside the context previously established by Iowa case law even 

though there is a substantial question regarding its ongoing validity. I 

regard this approach as ceding the court’s fundamental authority to develop 

the law to the parties. See Frost, 59 Duke L.J. at 472 (arguing that litigants 

should not wrest away from courts the interpretation of law). Yet, while 

refusing to consider the validity of the underlying doctrine, the court at the 

same time considers the question of whether the contact-sports doctrine is 

consistent with the Restatement (Third) of Torts: Liability for Physical and 

Emotional Harm, an issue that, like the question of the continued validity of 

the contact-sports exception, was not briefed by the parties. 

Further, because public policy is at the heart of the contact-sports 

exception, this case presents the kind of dispute that even Professor 

Eisenberg, who generally endorses the adversary or participatory model of 

adjudication, believes justifies the relaxation of the ordinary rules. See 

generally Melvin Aron Eisenberg, Participation, Responsiveness, and the 

Consultative Process: An Essay for Lon Fuller, 92 Harv. L. Rev. 410 (1978). 

Indeed, under the Restatement (Third) of Torts, the contact-sports exception, 

as a special rule to ordinary negligence, can only be adopted if there are 

compelling public policies in support of the special rule. Further, in 

common law cases, courts must make decisions on grounds of policy 

because of their implications for future cases. Craven, 88 Marq. L. Rev. at 

255. 
24

In any event, if there is a reluctance to address the broader question 

because of the failure of the parties to make this argument, we should order 

the parties to file supplemental briefs to address the issue rather than 

render an opinion based on what may prove to be a fatally flawed premise. 

There is no reason not to order supplemental briefs in order to ensure that 

this court “gets it right” now rather than wait for an additional case to come 

along. Supplemental briefing would also promote fairness to the parties by 

ensuring that they have an opportunity to weigh in on the larger issue. See

Adam A. Milani & Michael R. Smith, Playing God: A Critical Look at Sua 

Sponte Decisions by Appellate Courts, 69 Tenn. L. Rev. 245, 287 (2002) 

(advocating that when courts use discretion to decide issues not raised by 

parties, supplemental briefing should be requested to avoid abuse of 

discretion). 

I would have ordered the parties to present supplemental briefing on 

the larger issues presented in this case. Since such briefing has not been 

ordered, the case must be decided as is in a less than optimum posture. 

Nonetheless, I am convinced that there is ample reason not to extend the 

contact-sports exception to this case for the reasons expressed below. 

Before discussing my views on the merits, it is important to note what 

this case means. The continued validity of the contact-sports exception and 

its viability and scope under the Restatement (Third) of Torts are not 

addressed by a majority of the members of the court and therefore remain 

open questions. The court may have reached a result on this appeal, but it 

has left the law in this area murky and uncertain. 

II. The Contact-Sports Exception. 

A. Development of the Contact-Sports Exception. Prior to 1975, 

plaintiffs were generally allowed to recover in sports injury cases based on a 

showing of ordinary negligence. See Crawn v. Campo, 630 A.2d 368, 370–71 
25

(N.J. Super. Ct. App. Div. 1993). The first noteworthy case to depart from 

the traditional application of negligence law to sports-injury cases was the 

Illinois case of Nabozny v. Barnhill, 334 N.E.2d 258 (Ill. App. Ct. 1975). In 

Nabozny, the court introduced an innovation into the law, namely, that the 

ordinary rules of negligence do not generally apply in the context of contact 

sports, including soccer. Nabozny, 334 N.E.2d at 260–61. Instead, sports 

injuries are only actionable if they are the result of reckless or intentional 

conduct. Id. The Nabozny court offered several policy reasons for this 

deviation. The court cited the need “to control a new field of personal injury 

litigation.” Id. at 261. The Nabozny court also asserted “that the law should 

not place unreasonable burdens on the free and vigorous participation in 

sports by our youth.” Id. at 260.

Since Nabozny, the question of whether to alter the application of 

traditional negligence in sports-injury cases has not been decided in many 

jurisdictions. See generally Matthew G. Cole, No Blood No Foul: The 

Standard of Care in Texas Owed by Participants to One Another in Athletic 

Contests, 59 Baylor L. Rev. 435, 443–57 (2007) (cataloguing status of the 

contact-sports exception in all fifty states). In those that have, a majority of 

courts have departed from traditional precedents and developed a common 

law innovation that has been labeled as the “contact-sports exception” to

ordinary rules of tort liability. See, e.g., Knight v. Jewett, 834 P.2d 696, 711 

(Cal. 1992); Jaworski v. Kiernan, 696 A.2d 332, 337 (Conn. 1997); Pfister v. 

Shusta, 657 N.E.2d 1013, 1017–18 (Ill. 1995). 

The courts adopting the contact-sports exception have often cited the 

policy concerns of Nabozny, namely, that immunity for negligent conduct is 

essential to ensure vigorous competition and to impede the filing of lawsuits 

over sports injuries. Knight, 834 P.2d at 710; Jaworski, 696 A.2d at 337; 

Pfister, 657 N.E.2d at 1018. Further, the cases suggest that application of 
26

the ordinary standard of care could alter the way in which the game is 

played and require integral parts of sports to be abandoned. Knight, 834 

P.2d at 710.

The doctrine employed to avoid these untoward consequences is 

usually assumption of risk. It is claimed the normal expectations of 

participants in contact sports include the potential for injuries, participants 

assume the risk of injuries, and therefore there should be no negligence 

liability for such injuries. See Jaworski, 696 A.2d at 336–37; Pfister, 657 

N.E.2d at 1017–18.

While most courts that have considered the matter have adopted the 

contact-sports exception, a minority have rejected it. A leading minority case 

is Lestina v. West Bend Mutual Insurance Co., 501 N.W.2d 28 (Wis. 1993), 

superseded by statute, Wis. Stat. § 895.525(4m) (1995), as recognized in 

Noffke ex rel. Swenson v. Bakke, 748 N.W.2d 195 (Wis. Ct. App. 2008). In 

Lestina, the Wisconsin Supreme Court considered whether to apply an 

ordinary negligence standard in an action arising out of injuries suffered in a 

soccer game. Lestina, 501 N.W.2d at 29. In rejecting the contact-sports 

exception, the Lestina court emphasized that the proponents of the contactsports exception failed to realize negligence is a flexible standard that is 

adaptable to a wide range of conduct. Id. at 33. According to the Lestina

court:

The very fact that an injury is sustained during the course 

of a game in which the participants voluntarily engaged and in 

which the likelihood of bodily contact and injury could 

reasonably be foreseen materially affects the manner in which 

each player’s conduct is to be evaluated under the negligence 

standard.

Id. As a result, the Lestina court found that the negligence doctrine was 

sufficiently flexible to permit “vigorous competition” and to give adequate 
27

consideration to other factors cited in support of the contact-sports 

exception. Id. 

The New Hampshire Supreme Court in Allen v. Dover Co-Recreational 

Softball League, 807 A.2d 1274 (N.H. 2002), came to a similar conclusion. In 

Allen, the court considered whether the plaintiff could recover under a 

negligence theory for injuries resulting from an errantly thrown softball. 

Allen, 807 A.2d at 1283. Citing Lestina, the court rejected the reckless 

standard of the contact-sports exception. Id. at 1284. The court noted that 

in ordinary negligence cases, “a participant . . . ‘who creates only risks that 

are normal or ordinary to the sport acts as a reasonable person of ordinary 

prudence under the circumstances.’ ” Id. at 1284 (quoting Crawn, 630 A.2d 

at 373). A participant acts in an unreasonable manner only when the 

participant increases or creates a risk outside the range of risks that flow 

from participation in the sport. Id. at 1285. 

Another case that rejects the contact-sports exception is Auckenthaler 

v. Grundmeyer, 877 P.2d 1039 (Nev. 1994). In this case, the Nevada 

Supreme Court considered whether a horse rider could bring a negligence 

claim to recover for injuries sustained from a kick from another rider’s horse. 

Auckenthaler, 877 P.2d at 1040. As in Lestina, the Auckenthaler court 

emphasized the flexibility of the negligence standard. Id. at 1043. The court 

also, however, noted that the contact-sports exception was “merely another 

way of recognizing implied assumption of risk through the back door or by 

way of duty/risk principles.” Id. at 1044. The Auckenthaler court noted that 

Nevada’s comparative fault statute abolished assumption of risk and left no 

room for the special rule. Id. Finally, the Auckenthaler court observed that 

the claims regarding the flood of litigation and the chilling effect upon 

participation in recreational activities “seem overstated.” Id. The court 
28

found very few cases where plaintiffs had recovered based upon ordinary 

negligence in sporting contexts. Id. 

B. Application of the Contact-Sports Exception to Softball. There 

are several cases that consider whether softball should be considered a 

contact sport for the purposes of any exception to ordinary negligence law. 

In the majority of cases, courts have held that softball was a contact sport, 

albeit in highly conclusory language. See Blancher v. Metro. Dade County, 

436 So. 2d 1077, 1079 (Fla. Dist. Ct. App. 1983); Landrum v. Gonzalez, 629 

N.E.2d 710, 714–15 (Ill. App. Ct. 1994). Softball, however, was not found to 

be a contact sport in Cahill v. Carella, 648 A.2d 169 (Conn. Super. Ct. 1994). 

In Cahill, the court noted that while some contact will occasionally and 

accidentally occur in recreational softball games, softball is not a contact 

sport. Cahill, 648 A.2d at 174. 

C. Scope of the Contact-Sports Exception. Some of the cases 

dealing with the contact-sports exception contain broad, unqualified 

statements that recovery for injuries suffered in the course of contact sports 

requires a showing of recklessness. However, in a number of cases that 

have adopted the contact-sports exception, there have been some clearly 

drawn limitations on the doctrine.

Limitations to the contact-sports exception finds support in a relatively 

early case regarding assumption of risk. As stated by Chief Justice Cardozo, 

a party who engages in a sporting activity “accepts the dangers that inhere 

in it so far as they are obvious and necessary.” Murphy v. Steeplechase 

Amusement Co., 166 N.E. 173, 174 (N.Y. 1929) (emphasis added). The 

limitation of assumption of risk to “obvious and necessary” risks has been 

carried forward in sports cases. For instance, in the frequently cited case of 

Turcotte v. Fell, 502 N.E.2d 964 (N.Y. 1986), the court noted that the contactsport exception applies only to risks “that are known, apparent or reasonably 
29

foreseeable.” Turcotte, 502 N.E.2d at 967. And, as the California Supreme 

Court has repeatedly emphasized: “[D]efendants generally do not have a duty 

to protect the plaintiff from the risks inherent in the sport, or to eliminate 

risk from the sport . . . . [T]hey generally do have a duty [however] not to 

increase the risk of harm beyond what is inherent in the sport.” Kahn v. E. 

Side Union High Sch. Dist., 75 P.3d 30, 38 (Cal. 2003).

D. Developments in Tort Law Following Adoption of the ContactSports Exception. Since the advent of the contact-sports exception, there 

have been significant developments in tort law. One such development is the 

adoption of the Restatement (Third) of Torts. The Restatement (Third) of 

Torts provides that “[a]n actor ordinarily has a duty to exercise reasonable 

care when the actor’s conduct creates a risk of physical harm.” Restatement 

(Third) of Torts: Liab. for Physical and Emotional Harm § 7(a), at 77 (2010). 

The Restatement (Third) of Torts, moreover, has an overarching philosophy, 

namely, that the duty of care owed by one to another in matters involving 

personal safety is ordinarily the generally-applicable negligence standard 

and that the question of whether that generally-applicable standard has 

been breached is a factual question for the jury. See id. at § 6 cmt. f, at 69, 

§ 7 cmt. a, at 77–78. The Restatement (Third) of Torts eschews special 

judge-made rules that apply in narrow situations as incoherent and 

inconsistent with the overarching architecture of our modern tort law. See 

also Yount v. Johnson, 915 P.2d 341, 342 (N.M. Ct. App. 1996) (noting the 

law has “moved forcefully towards a public policy that defines duty under a 

universal standard of ordinary care, a standard which holds all citizens 

accountable for the reasonableness of their actions [and] away from 

judicially declared immunity or protectionism, whether of a special class, 

group, or activity”). 
30

That said, section 7 of the Restatement (Third) of Torts does reserve 

special duty rules for “exceptional cases.” Restatement (Third) of Torts: Liab. 

for Physical and Emotional Harm § 7(b) (2010). Section 7(b) provides, “In 

exceptional cases . . . a court may decide that the defendant has no duty or 

that the ordinary duty of reasonable care requires modification.” Id. And, 

while implied assumption of risk is disapproved in section 2 of the 

Restatement (Third) of Torts: Apportionment of Liability, comment j

expressly declines to take a position on the application of limited duty in 

sports cases. Restatement (Third) of Torts: Apportionment of Liability § 2, 

cmts. i, j, at 21–22 (2000). 

E. Iowa Case Law Regarding the Contact-Sports Exception. This 

court in a per curiam opinion in Leonard ex rel. Meyer v. Behrens, 601 

N.W.2d 76, 80–81 (Iowa 1999), embraced without discussion the contactsports exception in the context of a game of paintball. In Behrens, the very 

purpose of the sport, paintball, involved shooting other participants with 

projectiles. Behrens, 601 N.W.2d at 77–78. Because of the contact inherent 

in the activity, the court determined that a special rule of liability requiring 

recklessness was applicable. Id. at 80–81. 

The court cited Dudley v. William Penn College, 219 N.W.2d 484 (Iowa 

1974), in support. Behrens, 601 N.W.2d at 79. Dudley, however, involved a 

failure to supervise claim against a coach and college brought by a player 

who was hit by a foul ball while sitting in an unprotected dugout. Dudley, 

219 N.W.2d at 486. In Dudley, the court affirmed a directed verdict for lack 

of causal connection, noting, in passing, “Most injuries in athletic contests 

result from the rough and tumble of the game itself.” Id. at 486. 

Next, the Behrens court briefly cited but did not analyze sports cases. 

Behrens, 601 N.W.2d at 79–81. It relied upon the language in Jaworski for 

the twin propositions that if negligence were the standard in coparticipant-
31

athletic-injury cases, vigorous play would be affected and there would be a 

flood of litigation. Id. at 80. And so, the social policies of promoting vigorous 

competition and avoiding lawsuits in the sport of paintball demanded that, 

as a matter of law, unreasonable conduct proximately causing serious eye 

injuries was immune from liability. Id. at 81.

III. Application of Principles. 

A. Analysis of the Underpinnings of the Contact-Sports 

Exception. This court adopted the Restatement (Third) of Torts in 

Thompson. Thompson v. Kaczinski, 774 N.W.2d 829, 835 (Iowa 2009). While 

the Restatement (Third) of Torts applies a duty of care, it does allow for 

specific public policy exceptions to the generally-applicable standard of care. 

Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 7(b)

(2010). Generally speaking, the public policy supporting an exception must 

be compelling. Id. Otherwise, our tort law will be a minefield of formalistic 

and incoherent doctrine. Like the per curiam decision in Behrens, the 

majority does not adequately discuss the policy basis for such an exception 

for contact sports. I am fearful that under the approach of the majority, the 

ground work has been laid for a series of judge-made exceptions, which if 

unabated could create a hodgepodge of our tort law. As I see it, because of 

the lack of strong policy reasons, the adoption of a reduced standard of care 

in contact sports is simply another way of recognizing implied assumption of 

risk through the back door of duty principles. Auckenthaler, 877 P.2d at 

1044. The public policy rationale behind the contact-sports exception has 

no sound basis for a number of reasons.

First, the contact-sports cases generally do not adequately take into 

consideration the flexibility of negligence as a cause of action. In order for a 

defendant to be found negligent, the defendant’s acts or omissions must be 

found to be unreasonable under all the facts and circumstances of the 
32

particular case. As emphasized in Lestina and Allen, a key fact and 

circumstance of a sports-injury case is the competitive environment in which 

it occurs. Allen, 807 A.2d at 1285; Lestina, 501 N.W.2d at 33. In applying 

ordinary negligence standards, the fact that a defendant was engaged in a 

competitive sport that involved direct physical contact would be a critical 

and often an outcome-determining factor on the issue of negligence. 

Conduct that would be a tort on Eighth and Main is perfectly acceptable on 

the football field. Thus, even the sports cases applying the negligence 

standard generally would be consistent with the observation in Dudley, 

namely, that “[m]ost injuries in athletic contests result from the rough and 

tumble of the game itself.” Dudley, 219 N.W.2d at 486.

As a result, sports injuries that occur in the ordinary course of a 

contact sport would not give rise to negligence claims. As noted in Allen, it 

would be part of the ordinary course of reasonable play for a player to throw 

a ball in an errant direction in a softball game. Allen, 807 A.2d at 1286. 

Such an act, absent aggravating factors that increase the ordinary risk of the 

game, would not amount to negligence. Id.; see also McGee v. Bd. of Educ., 

226 N.Y.S.2d 329, 331–32 (App. Div. 1962) (“Players . . . must accept the 

risks to which their roles expose them. Of course, this is not to say that 

actionable negligence can never be committed on a playing field. 

Considering the skill of the players, the rules and nature of the particular 

game, and risks which normally attend it, a participant’s conduct may 

amount to such careless disregard for the safety of others as to create risks 

not fairly assumed.”). Only when a defendant acts unreasonably in light of 

the goals and purposes of the game, including vigorous competition, would a 

cause of action arise. See 4 Fowler V. Harper et al., The Law of Torts § 21.5, 

at 239–40 & n.17 (2d ed. 1986) (criticizing the contact-sport exception on 
33

ground that, properly understood, ordinary negligence provides the 

appropriate framework for sports cases).

Second, the contact-sports exception does not adequately take into 

consideration our comparative-fault framework. In Iowa, comparative fault 

has abolished assumption of risk, one of the main underpinnings of the 

contact-sports exception. Iowa Code § 668.1(1) (2005). The legislature has 

not crafted an exception for contact sports. In many cases, assumption of 

risk provides the analytical framework for special rules for sports 

participants. In Iowa, a special duty rule cannot be fashioned based on this 

type of assumption of risk. The majority seems to anticipate what the 

legislature should have done, or perhaps will do, namely, craft an exception 

to comparative fault, rather than rely upon what the current law provides. 

Third, I question whether “the sky is falling” approach of the contactsports cases bears any reasonable relationship to reality. For example, in 

Jaworski, the Connecticut Supreme Court declared:

If simple negligence were adopted as the standard of care, 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.

Jaworski, 696 A.2d at 338. Such quotable language has been cited slinkystyle in a string of case law that includes Behrens, but has no factual basis. 

For example, prior to 1975, before the development of the contactsports exception, there is no evidence that sports competition was being 

suppressed by negligence law. The players in the historic Army-Navy games, 

or those who participated in state basketball tournaments in that golden era, 

would be stunned to learn that the members of this court sitting in our 

conference room thirty-five years later have concluded that their 

participation in these events was less vigorous because of their concern 
34

about the prevailing tort law. Furthermore, it would be preposterous to 

believe that after the Lestina decision of the Wisconsin Supreme Court in 

1993, Iowa athletic teams who traveled to Wisconsin for away games played 

differently than they did at home, or in Wisconsin in the years prior to the 

decision. Similarly, in jurisdictions like Nevada and Arizona, where sports 

teams have achieved national prominence, there is no evidence that vigorous

competition has been impacted by appellate court decisions that have 

explicitly rejected the contact-sports exception. Further, no one seriously 

claims that athletic competition over recent decades is less vigorous in the 

many states where there is no authority one way or the other on the contactsports exception. 

After over four decades of experimentation with the special rule in 

some states, no special rule in other states, and uncertainty in many states, 

one would think the states as laboratories of democracy would have 

produced some evidence to support the speculation of courts regarding 

“vigorous competition.” The lack of evidence over this prolonged period of 

time is a powerful indicator that the vigorous competition policy rationale of 

the contact-sports exception has no basis in fact. 

In any event, one might wonder, in today’s world, whether vigorous 

competition needs the “breathing room” provided by a recklessness 

standard. As noted in one leading sports law text, “the evidence is 

accumulating that, on every level of competition, participants need to be 

restrained and not emboldened.” See Ray Yasser et al., Sports Law: Cases 

and Materials 720 (4th ed. 2000). To the extent tort rules would affect 

behavior in the context of athletics, the elimination of the contact-sports 

exception would promote a sense of restraint, a sense that the game has to 

be played within the rules, a sense of respect for the bodily integrity and 

person of the opposing player. There is a word that encompasses these 
35

traits—sportsmanship. I am old-fashioned enough to want our tort system 

to give this traditional value contemporary life.

Fourth, the bogeyman of an “avalanche of lawsuits,” that reliable and 

hoary chestnut that is relied upon whenever there is potential liability, has 

no more validity in the sports context than in most contexts in which it is 

applied. The majority of cases upon which it relies cite no evidence of an 

avalanche of lawsuits in states that have rejected or have not yet embraced 

the contact-sports exception. Indeed, in Iowa, there was no reported case 

involving coparticipants in sports until the court considered the exotic sport 

of paintball in Behrens in 1999. In short, not one case involving 

coparticipants in football, basketball, baseball, softball, or soccer came to 

this court for resolution prior to 1999. There was no threatened “avalanche 

of litigation” in Iowa, then or since.

Indeed, the leading case with the inflated rhetoric about the potential 

“avalanche of litigation” comes from the Connecticut Supreme Court in 

Jaworski. Mark M. Rembish, Liability for Personal Injuries Sustained in 

Sporting Events After Jaworski v. Kiernan, 18 Quinnipiac L. Rev. 307, 337–

38 (1998). Yet in the fifty-five-year period from 1941, when the Connecticut 

Supreme Court held that negligence was the standard in sports cases, until 

1997, when Jaworski announced its contact-sports exception, the reported 

cases in Connecticut involving coparticipants in sports cases amounted to 

the grand total of two! Id. at 338.

In any event, even if there were a semblance of reality to the myth of a 

litigation avalanche, adoption of the contact-sports exception is just as likely 

to increase litigation as it is to diminish it. Here is the argument: advocates 

of the contact-sports exception believe that it will encourage robust and 

vigorous play; the more robust and vigorous the play, the more injuries are 

likely to occur; and the more injuries that occur, the more litigation results. 
36

See Thomas F. Miller, Torts and Sports: Has Michigan Joined the Wrong Team 

with Ritchie-Gamester, 48 Wayne L. Rev. 113, 131 (2002). I do not claim to 

have empirical evidence to support this line of reasoning, but it is just as 

likely to be correct as any opposite conclusion.

I further question the underlying premise of the “avalanche of 

litigation” theory. First, it reaches too far. If the “avalanche of litigation” 

theory were a driving principle of tort law, it would have more application in 

the world of airplanes and automobiles than competitive sports. Second, it 

is just wrong. The tort system exists to compensate persons who are injured 

by the unreasonable conduct of others. 

It may be, I suppose, that there is an unarticulated reason behind the 

“avalanche of litigation” theory, namely, a mistrust of juries to do the right 

thing. Yet, we trust juries to do the fact finding in complicated matters 

ranging from medical malpractice to business tort cases. If juries can 

handle these types of cases, they can surely be trusted with cases arising 

from competitive sports injuries.

Fifth, assuming that the application of ordinary negligence would have 

some mild deterrent effect on play and produce a few additional lawsuits, 

this would not be an untoward development. The cases that embrace the 

contact-sports exception generally note that there must be a balance 

between the interests of promoting vigorous participation in sports and the 

safety of participants. See Ross v. Clouser, 637 S.W.2d 11, 14 (Mo. 1982). 

In the last three or four decades, there is one empirical fact that the majority 

ignores and no knowledgeable person challenges—there has been an 

epidemic of sports injuries among children. See Griffin Toronjo Pivateau, 

Tackling the Competitive Sports Doctrine: A New Proposal for Sports Injuries in 

Texas, 9 Tex. Rev. Ent. & Sports L. 85, 88 nn.8–9 (2007) (citing statistics 

from the U.S. Consumer Products Safety Commission and the National 
37

Center for Injury Prevention and Control showing substantial increase in 

sports injuries in recent years).

The increase in injuries in contact sports has had a number of adverse 

effects. For those injured due to unreasonable conduct, the adverse effects 

are self-evident. Further, however, the increasingly dangerous nature of 

competitive sports has tendencies to deter participation by those who might 

be willing to play but who do not wish to be exposed to the risk of injuries 

from unreasonable conduct. For those who wish to promote broadly the 

values of athletics across the culture, the contact-sports exception may be 

self-defeating. If it is true that application of the negligence doctrine would 

modestly deter unreasonable conduct, the time has come to tip the balance 

in the direction of safety and potentially broader participation. 

For the above reasons, I question whether the contact-sports exception 

has a sound foundation in fact or law in today’s sports world. 

B. Softball as a Contact Sport. Because of my concerns regarding 

the validity of the contact-sports exception generally, I have no interest in 

seeing it expanded outside the limited context of Behrens, which emphasizes 

that the very purpose of the sport is to strike an opposing player. Behrens, 

601 N.W.2d at 77–78. As a result, I would conclude that softball is outside 

the scope of Behrens and is not a contact sport for purposes of the rule. The 

primary purpose of softball does not involve clashing bodies like that of 

football or rugby. There is no doubt that, on relatively rare occasions, a 

participant in a softball game may be injured by an errant throw of a ball or 

a bat. Hitting participants with balls and bats, however, is not the purpose 

of the sport. There is, of course, incidental contact, but there is occasional 

incidental contact in golf (thrown clubs and misdirected shots), ping-pong 

(flying mallets and spinning balls to the eye), and the racing of toads 

(participants bumping into one another as they urge their champions to 
38

victory). There are ordinarily no immunities for injuries arising from these 

types of incidental contact, and I would not apply them to the game of 

softball. 

Aside from my policy concerns, I also have technical concerns with 

developing some kind of imprecise and irrelevant category of “contact” vs. 

“noncontact” sport. It is a meaningless exercise. This is the kind of 

pointless labeling that we recently rejected in Koenig. See generally Koenig v. 

Koenig, 766 N.W.2d 635, 643–45 (Iowa 2009) (abolishing the distinction 

between invitees and licensees in premises liability). Instead of some kind of 

grand categorization of sports, the better approach, even if one were to 

embrace the immunity rule sought by the majority, is not to divide sports 

into categories, but instead look at the fundamental nature of any 

competitive sport and determine whether the injury was the result of an 

inherent risk of the game, i.e., a risk that is part and parcel of the activity 

and necessary if the game is to be played at all. If the answer is yes, then a 

special duty rule might apply. If the answer is no, then ordinary negligence 

applies. 

It makes no sense at all to adopt the blunt and imprecise 

categorization approach that has the potential of being both overbroad and 

underinclusive. I, of course, doubt that the court would be willing to extend 

the contact-sports exception to sports like golf, table tennis, and the racing 

of toads, but this is an argument against the rule in the first place. 

Further, not all “softball” is the same. An informal game of softball 

involving children and adults may operate by one set of rules and generate 

gentle expectations, while a highly competitive game involving adults played 

for high stakes may involve more risk of physical contact. In this case, there 

is no elaboration in the record other than the game was a slow-pitch softball 

game involving seventeen year olds playing in an organized league. These 
39

facts alone, in my view, are not sufficient to declare that this softball game 

was a “contact sport.”

In any event, if forced to make a choice in a bipolar world, I would 

conclude that softball is not a contact sport. Unlike football or paintball, for 

example, the very purpose of the game does not involve the collision of 

bodies or projectiles. I do not believe the nature of the game of softball will 

be dramatically changed by a rule imposing liability for negligence under all 

the facts and circumstances. I would, therefore, not apply any special 

immunity to the game. 

C. Scope of the Contact-Sports Exception. Even if the court 

decides to embrace the contact-sports exception and even if softball is 

declared by verbal bludgeon to be a contact sport, it is clear even from the 

case law upon which the majority relies that this is not the end of the 

matter. The immunities of any special rule that the majority adopts plainly 

do not extend to every occasion when a participant is injured. 

In my view, under the better-reasoned contact-sports cases, a person 

who commits acts or omissions that create risks that are outside the 

ordinary risks inherent in a game are subject to liability sounding in 

negligence. Such acts or omissions “increase the risk of harm beyond what 

is inherent in the sport.” Kahn, 75 P.3d at 38. The proper standard of 

liability in these situations is ordinary negligence, not recklessness. See Phi 

Delta Theta Co. v. Moore, 10 S.W.3d 658, 662–63 (Tex. 1999) (Enoch, J., 

dissenting).

Here, the plaintiff is entitled to assert that the throwing of the bat by 

this right-handed hitter behind his back all the way down to the first 

baseman with its resultant injuries was not an inherent and inevitable part 

of the game but was outside the risks associated with the activity. An expert 

testified that in thirty years of coaching softball, he had never seen this kind 
40

of incident. As a result, there is a factual question regarding whether the 

acts of the defendant fell outside the scope of the contact-sports exception

and therefore triable as an ordinary negligence action.

IV. Conclusion.

In light of the underlying weakness in the contact-sports rationale, I 

would not permit it to drift outside its moorings. As a result, I would not 

extend the contact-sports exception to an amateur game of softball. At a 

minimum, whether the contact-sports exception applies involves a careful 

consideration of the facts and circumstances.

Even assuming the contact-sports exception applies to the game 

involved in this case, the rule does not immunize negligent conduct that is 

outside the inherent risk of the activity. In this case, at a minimum, the 

plaintiff is entitled to argue that the conduct involved—the throwing of a bat 

by a right-handed batter who twirls around and throws the bat with 

sufficient force to strike the first baseman, what was indisputably an 

extraordinary and unheard of event—presents a danger that was outside the 

inherent risk of the game and, as a result, subjects the actor to liability 

based on ordinary negligence.

Wiggins, J., joins divisions I and III(A) of this special concurrence and 

Hecht, J., joins this special concurrence in its entirety.