In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-4220

THOMAS BEVOLO,

Plaintiff-Appellant,

v.

ALAN CARTER,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 03 C 447—William D. Stiehl, Judge.

____________

ARGUED JANUARY 4, 2006—DECIDED APRIL 20, 2006

____________

Before CUDAHY, RIPPLE, and KANNE, Circuit Judges.

KANNE, Circuit Judge. In this diversity action, Thomas

Bevolo filed suit against Alan Carter for personal injuries

he sustained during a demonstration at a martial arts

banquet. The district court ordered stricken the affidavit of

Bevolo’s expert, as the expert had not been disclosed prior

to the appropriate deadline. Thereafter, it granted summary judgment for Carter. Belovo appeals both decisions.

For the reasons set forth below, we affirm.

I. BACKGROUND

On October 23, 2003, Bevolo and his family attended a

martial arts banquet for the Christian Kajukenbo Ministry.

Bevolo, an Illinois resident, was a student of Kajukenbo, a
2 No. 04-4220

Hawaiian form of martial arts. Bevolo had been studying

various forms of martial arts for five years; he had been

studying Kajukenbo since January 2002. At the banquet,

Bevolo was to be promoted to an orange belt. He was

wearing his Gi, a black uniform worn by martial arts

practitioners. Bevolo’s class warmed up and sparred during

the first thirty minutes of the banquet. During this time,

while other classmates sparred with each other, Bevolo

warmed up solo. The warm-up and sparring session was

followed by a promotions ceremony and “[d]inner,

[f]ellowship, and [p]hotos.”

One of the “very special guests” from Missouri (and

featured speaker) that evening was Professor Carter, a

Kajukenbo expert and an 8th degree black belt. Evidently,

Carter has the rare ability to “move people with his mind.”

After dinner, Bevolo was introduced to Carter and asked

Carter to demonstrate this uncanny skill. With a group of

onlookers (including Bevolo’s own family) present and

with cameras in hand, Carter began his demonstration. The

demonstration, however, included the use of Carter’s welltrained hands as well as his well-trained mind. The mood

in the air was light, and Carter demonstrated various

pressure points on Bevolo, including pulling his hair and

touching his arms. During the demonstration, Carter was

talking with the crowd while Bevolo’s family took pictures.

After performing several maneuvers, including two that put

Bevolo on the ground, Carter hit him in the neck. Carter did

not intend to injure him, but serious damage was done with

that one blow. None of the previous blows or maneuvers had

caused any injury.

One of the stated goals of Kajukenbo is that, “[w]hen

attacked, a student’s instincts will take over and the body

will react to the situation, diffusing it without hesitation.”

Unfortunately for Bevolo, his body did not react to Carter’s

demonstration, nor did it make any attempt to diffuse the

situation. As the old saying goes, “[i]t’s all fun and games
No. 04-4220 3

1 We are not surprised to learn Bevolo incurred more than

$75,000 in damages.

until someone loses an eye,” or in this case, until someone

injures his neck and has to have a cadaver bone and a

titanium plate surgically inserted.1

II. ANALYSIS

A. Expert Witness Disclosure

The court ordered that Bevolo’s expert witness disclosure be filed on or before November 15, 2003. The depositions of any of his experts were to be completed by

December 15, 2003. The court also set a discovery deadline

for both parties of March 25, 2004. On June 2, 2004,

pursuant to the parties’ joint motion, the court extended the

discovery deadline to August 8, 2004. In that order, the

court spoke only of the discovery deadline and the deadline for filing dispositive motions. There was no mention

of an extension of the expert witness disclosure deadline,

nor was there any mention of an extension of the deadline

for the taking of depositions of Bevolo’s expert witnesses.

At no time did Bevolo complain that the court did not

extend the expert witness disclosure deadline. In fact,

Bevolo did not specifically request an extension of this

deadline at any time. The court and Carter only caught

wind of the existence of Bevolo’s expert when Bevolo filed

the expert’s affidavit on September 21, 2004, which was

attached to his response to Carter’s summary judgment

motion. This was much too late, said the district court, and

the affidavit was ordered stricken. Bevolo now complains to

us this was an abuse of discretion. We are not at all sympathetic to Bevolo’s argument because the expert was not
4 No. 04-4220

2 We hesitate to use the word “disclosed” to describe Bevolo’s

actions. It would be more apt to say Bevolo sprung the existence

of the expert on the defense at the last minute.

“disclosed”2 until some ten months after the appropriate

deadline, and over a month after the close of discovery.

Despite the timeline described above, Bevolo argues he

only missed the deadline by five days. He argues the

deadline was September 16, 2004, and since he never

received the court’s order extending the deadline to this

date, he was justified in missing the hidden deadline by

only a few days. He then relies on a district court case from

New York to argue the expert’s testimony should have been

admitted. The entire argument on this point is misplaced,

however.

On November 23, 2004, the district court granted summary judgment for Carter and ordered stricken the expert’s

affidavit. The order contains an error and a typo. The court

mistakenly stated Carter had argued to the court that the

expert witness disclosure was due by September 16, 2004.

This is the statement Bevolo now relies on to argue the

deadline was September 16, 2004. However, the underlying

motion filed by Carter stated, “In addition, on or about

September 16, 2003 [not 2004] the plaintiff filed his Rule

26(a)(1) Initial Disclosures and did not identify [the expert].” The district court simply mischaracterized the

argument Carter had made to the court. Bevolo cannot rely

on the mischaracterization to claim now that the deadline

had somehow been moved without his knowledge. The error

and typo in the district court’s order granting summary

judgment and striking the affidavit do not change the fact

that the deadline for filing the expert witness disclosure

was November 15, 2003. Moreover, Bevolo suffers no prejudice by way of the court’s mistake because he did not know

of it.
No. 04-4220 5

Bevolo also argues he did not know he would need an

expert until he read Carter’s motion for summary judgment.

To make such an argument shows a lack of understanding

of the discovery process as well as the purpose of Federal

Rule of Civil Procedure 26(a), which provides for the

disclosure of expert witnesses to the opposing side in a

timely fashion. There is no question Bevolo was not timely

in this case; therefore, it was not an abuse of discretion for

the district court to think so too.

B. Contact Sports Exception to Negligence

We review a district court’s grant of summary judgment de novo. Isbell v. Allstate Ins. Co., 418 F.3d 788, 793

(7th Cir. 2005) (citation omitted). Summary judgment is

appropriate if “ ‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled to

a judgment as a matter of law.’ ” Id. (quoting Fed. R. Civ. P.

56(c)); Ezell v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005)

(citation omitted); see Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986). As a federal court sitting in diversity, we

apply state law “to resolve substantive questions and

federal law to resolve procedural and evidentiary issues.”

Colip v. Clare, 26 F.3d 712, 714 (7th Cir. 1994) (citation

omitted); see 28 U.S.C. § 1332. The parties agree Illinois law

applies to the substantive questions in this case.

Illinois courts have established the “contact sports exception” to negligence. Under this exception, voluntary participants in contact sports may be held liable for injuries to coparticipants caused by wilful and wanton or intentional

misconduct, but they are not liable for injuries caused by

ordinary negligence. Nabozny v. Barnhill, 334 N.E.2d 258,

260-61 (Ill. App. Ct. 1975); Oswald v. Twp. High Sch. Dist.

No. 214, 406 N.E.2d 157, 159-60 (Ill. App. Ct. 1980). “[A]
6 No. 04-4220

player is liable for injury in a tort action if his conduct is

such that it is either deliberate, wilful or with a reckless

disregard for the safety of the other player so as to cause

injury to that player . . . .” Nabozny, 334 N.E.2d at 261. The

parties agree the exception has been expanded to include

unorganized, informal, and spontaneous sports activities.

See Pfister v. Shusta, 657 N.E.2d 1013, 1014-15, 1018 (Ill.

App. Ct. 1995) (applying exception to spontaneous game of

kick-the-can in college dormitory); Landrun v. Gonzalez,

629 N.E.2d 710, 715 (Ill. App. Ct. 1994) (applying exception

to informal company softball game).

Bevolo contends he did not expect, nor would a reasonable

person expect, any physical contact when inquiring about

Carter’s ability to move people with his mind. Perhaps this

may be true if the circumstances involved a magic show or

some telekinetic demonstration. But that is not what we

have here. The situation arose during a martial arts event.

Bevolo had been coming to this same location for some time

to engage in martial arts training, where physical contact

with other participants was the norm. Carter was a master

and instructor in the martial arts, a role that Bevolo and all

the other attendees were aware. The entire evening was

organized for the members of this particular group. The

attendees were actually engaged in martial arts training

that night, warming up, sparring with each other, and

discussing Carter’s role as master. A reasonable person

would have understood in this context that the particular

form of martial art being taught, including moving people

with their minds, inherently involved physical contact. See

Landrum, 629 N.E.2d at 714-15; cf. Rodrigo v. Koryo

Martial Arts, 122 Cal.Rptr.2d 832, 842 (Ct. App. 2002)

(explaining, in context of analogous provision of California

law, that “[i]nherent in participating in—and learning—[martial arts] is the risk of injury stemming from

being punched, kicked or otherwise contacted by a fellow

competitor or student,” which includes when a student is
No. 04-4220 7

injured when simply waiting in line and is kicked from

behind).

The way Bevolo tells the story, and his counsel demonstrated at oral argument, Bevolo was just standing in front

of Carter, arms at his side with no defensive positioning,

when Carter basically attacked him. But this misrepresents

the record. Carter began to physically engage Bevolo.

According to Bevolo’s own testimony, he was forcibly taken

to the ground twice through a series of maneuvers before

the fateful blow to the neck was delivered. Tellingly, Bevolo

did not object at any time prior to that blow. He argues no

reasonable person would dare object to such a dangerous

and intimidating figure’s attacks. But we are unpersuaded.

Bevolo did not yell “Stop it!” or make any attempt to run

away or simply stay on the ground after he was (twice)

taken there. Nor did he otherwise make any attempt

whatsoever to stop the encounter. For example, he did not

look pleadingly at the onlookers, silently asking for someone

to help him. He did not yelp in pain. Even the spectators,

consisting of Bevolo’s own family, were laughing and taking

pictures throughout the demonstration. In the end, it is

Bevolo’s own deposition testimony that makes it crystal

clear he was a willing participant:

Q: What did you tell him, if anything, when he was

[performing the demonstration]?

A: I was going along with it. You know, we were having

fun. And I thought this was at the end of this, or maybe

somewhere in there it would be the mind moving thing.

(emphasis added).

Bevolo’s own deposition testimony shows he had a

complete understanding of the situation as well as his

role as a willing participant. Therefore, the district court

was correct to conclude the contact sports exception to

negligence applied to this situation, and Carter could only
8 No. 04-4220

be liable for Bevolo’s injuries if Carter’s behavior amounted

to wilful and wanton misconduct.

Bevolo next argues Carter’s conduct was reckless, thereby

making Carter liable for his injuries. As we alluded to

earlier, Carter can only be liable if his conduct was “either

deliberate, wilful or with a reckless disregard” for Bevolo’s

safety. See Nabozny, 334 N.E.2d at 260-61; Pfister, 657

N.E.2d at 1016 (defining wilful and wanton as action that

demonstrates actual or deliberate intent to harm or shows

an utter indifference or conscious disregard for someone’s

safety). Surprisingly, Bevolo’s argument is unburdened by

any case law citations or legal analysis. What little argument there is on the subject focuses solely on Carter’s

alleged recklessness. In effect, Bevolo has waived any

argument concerning whether Carter’s actions were deliberate. In fact, Bevolo conceded as much at oral argument

when he stated Carter’s acts were not intentional.

As to recklessness, once again, Bevolo’s own testimony

is dispositive. The mood was light, the parties were talking,

and all outward appearances reflected that everyone was

having an enjoyable time during the demonstration. Bevolo

explained, “We were in a real good mood. He was talking

with like my sister-in-law, my wife. And, you know, it was

just demonstrating a personality. There wasn’t any overtones of evil or anything.” As for the actual blow that caused

the injury, Bevolo stated, “And I don’t think he hit me with

any seriousness about hurting me; just that was one of

those places where it’s sensitive.” There is simply no

evidence Carter was behaving recklessly; he was performing

a martial arts demonstration with a willing participant, as

he had done numerous times before. This type of physical

contact is inherent in martial arts training, and there is no

evidence Carter evinced an utter indifference to or conscious

disregard for Bevolo’s safety.
No. 04-4220 9

III. CONCLUSION

For the reasons set forth above, the decisions of the

district court are AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-20-06