No. 2--08--0789 Filed: 12-31-09

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ MICHAEL

WEISBERG, ) Appeal from the Circuit Court ) of Du Pa ge Co un ty. Plaintiff -Appella nt, )

) v. ) No. 05--L--697 ) CHIC AGO ST EEL a nd C ODY LAMP L, ) Honorab le ) Stephen J. Culliton, Defend ants-App ellees. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE HUTCHI NSON deli

vered the opinion o f the cou rt: Pursuant to Supreme

Court Rule

304(a) (210 Ill. 2d R. 304(a)) , plain tiff, Micha el Wei sberg, appeals an order from the trial court gra nting the motion of def

endants, Chic ago Steel and Cody Lamp l, to dismiss pursuant to se ction 2-- 619 of the Code of Civ

il Proced ure (the Code) (7 35 IL

CS 5/2--619 (West 2004 )); t he order d ismissed counts I and II of plaintiff's four -count amended complain t. Counts I

and I I all eged neglig ence against d e fendants, and counts II I and I V alleged will ful andwanton c onduct against def endants, respectively . The only issue ra ised on ap

peal is whether the trial court erred when it grante d defendants' motion to dismiss wi

th respe ct to coun

ts I and II . For the reasons set forth below, we re verse and remand. The rele vant facts are not in dispute. Plaintiff was employe d by Chicag o Acceleration and
was assign ed to p rovid e athl etic t raini ng serv ices t o the C hicago Steel, an amateur hockey tea

m part of the United Hockey

League . Lampl was a play er on the Steel at all relevant times herein.No. 2--08--0789

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Plai ntiff 's duties as athletic trainer included refilling water bo ttles for the Chicago Steel players during practice. Players on the Chicago Steel would notify plaintiff that water bottles needed to be refilled by

banging a hockey

stick on the locker room door, and plaintiff would proceed to the bench next to the ice rink to refill the water bottles. On October 24, 2004, the Chicago Stee l was engaged in a practice at the Edge I ce Arena in Bensenville. Plaintiff was in the trainer 's roo m working onpaperwork when he heard a pla yer bang ing a stick on the locker room door. As plaintiff entered the bench area to refill the water bottles, he was struck in the ri g ht eye by a hockey puck. Plaintiff suffered a fracture be low his right eye and retinal tearing, wh ich resulted in permanent vision loss. OnJuly 15, 200 5, plaintif f file d a com plain t again st def endan ts. As amend ed, pl ainti ff's complaint alleged two counts of neglig ence and two counts of willful and

wanton c onduct against defenda nts. Count I of the complaint alleged that the Chicago Steel committed negligence by failing to preventplayers fr

om shooting pucks toward the bench area. Count I I alleged tha

t Lampl committed

negligence by

engaging in " sniping," or shooting pucks at water bottles on the bench, as plaintiff entered the bench area to re fill the wat er b ot tl es. Co unt s III and IV of the complaint alleg ed that th e C hi ca go St ee l a nd Lam pl en ga ge d i n w il lf ul an d w an to n c on du ct , r es pe ct iv el y. Defend ants filed a joint moti on to dismiss the negligence counts pursuant to sections 2--615 and 2--619 of the Code and to dismiss the willful and wanton counts pursuant to section 2-- 615 of the Code. Al te rn at iv el y, defendants' motion reque sted that the trial co urt grant summary judgment in their favor with regar d to counts II

I and IV p ursuant t o section 2--1005 o f the Code

(735 I LCS 5/2 --1005 (

West 2004)). On June 30, 2008, the trial court granted defenda nts' sec tion 2--6 19 motion to

dismiss with regard to the negligence claims, concluding that plaintiff's negligence claims were barred by

theNo. 2--08--0789

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contact sports exception, but denied the remainder of defendants' motion. Specifically , in rendering its order, t he trial c ourt conc luded tha t the par ties wer e enga ged in hockey, which isa contact sport, and then held that "plaintiff was a person who, when he was injured by t he ho ck ey a ct iv it y, thou gh he was outside the boundary of the actual game that

is the actual ice, he was, as a matter of law *** within an area naturally

encompassed

by the g ame, namely the

bench area *** and the contact sports rule app lies. " On plaintiff's motion, the trial court amended its order on July 24, 2008, to include langua ge pursuant to Rule 304(a) (210 Ill. 2d R. 304(a)) wi th respe ct to the d ismissed c ounts. Plaintiff timely appeals
. A section 2 --619 mot

ion to dismis s admits the

legal s ufficie ncy of the complaint, butraises defect s, defenses, or other affirmative matter appearing on the face of

the complaint or established by external submissions that defeat the action. Jenkins v. Concorde Acceptance Corp. , 345 Ill. App. 3d 669, 674 (2003). When considering whether an ac tion should be dismissed pursuant to section 2--619, all well-pleaded facts in the complaint are admitted togethe r with all reasonable inferences that can be drawn from those facts in the plaintiff's favor
. LaSalle Bank Na tion al Ass 'nv. Vil lage
o f Bull Valley , 355 Ill . App. 3d 629 , 634- 35 (20 05), c itin g Redwood v. Lierman , 331 Ill. App. 3d 1073 , 1076-77 (2002). I

n decidin g the me rits of a s ection 2- -619 motion, the tria l court m ay no t determine disputed factual issues without an evidentiary hearing. LaSalle Bank Na tion al Ass 'n , 355 Ill. App. 3 d at 63 5, cit ing Timberline, Inc. v. Towne , 225 Ill. App. 3d 433, 4 39 ( 1992). Where a
cause of action is dismissed under a section 2--619 mo ti on, the question on appeal is whether a genuine issue of material fact exists and whether the defendant is entitled to a judgment as a matter of law. LaSa

lle Bank Na tion al Ass 'n , 355 I ll. App. 3 d at 63 5, cit ing Nowak v. St. Rita High School ,No. 2--08--0789

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197 Ill. 2d 381, 389 (2001). We review de novo a trial court's ruling on a section 2--619 motion to dismiss. LaSalle Bank Na tion al Ass 'n , 355 Ill . App. 3d at 6 35, ci ting Nowak , 197 Ill. 2d at 389. Onappeal, pl a intiff contends that the trial court erred in dismissing counts I and II of the complaint pursuant to section 2--619 of the Code. In suppor t of this contention, plaintiff argues that the contact sport s exce ption is not applicable and defendants should be held liable for neg ligent conduct because plaintiff was not a participant in a contac t sport, but rather, an athletic trainer providing training services. I n the alternat ive, plain tiff argues that, even if he is considere d a participant

ina contac

t sport, the

contact sports exc eption doe s not apply , becau se sniping involves conduct that was "totally

outside the range of ordinary activities associated with ice hockey ." The contact

sports exception

is a judicia

lly c reated exception

to ordina ry neglig ence cl aims, whichprovides

that volun

tary particip ants in a c ontact sp ort may be held li able for

injuries t

o coparti cipantscause d by willfu l and wanton or intentional conduct, but not for injuries caused by ordinary negligence. Azzano v. Catholic Bishop , 304 Ill. App. 3d 713, 716 (1999), citing Nabozny
v. Barnhi ll , 31 Ill. App. 3d 212, 215 (1975). I n creating the con

tact spor ts exception , the cour

t in Nabozny stated tha

t its under

lyin g purpo se was to ensur e that the law did no t place u

nreasonable burdens on the free and vigorous participation in sports by our youth, and there fo re the ex ception
was "carefully

drawn" to control a new field of persona l injury litigation. Nabozny , 31 Ill. App. 3d at 215. By allowing

recov ery for injuries resulting from willful and wanton and intentional misconduct, but not ord inary neglig ence, the contac

t sports exc eption ta

kes in to accoun t the voluntary nature o f partic ipation in games w here phy sical contact is a

nticipate d and whe

re the r isk of injury caused

by the contact is inherent. Pfister v. Shusta , 167 Ill. 2d 417, 427 (1995). Thus, as
our supreme court held, the "contact sports exception strikes an appr opriate balance betweenNo. 2--08--0789

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socie ty's interest in limiting liability for injuries resulting fr om physical contact inher ent in a contact sport and s o ciety' s interest in allowing recovery for injuries resulting from willful and wanton or intentional misconduc t by participants. " Pfister , 167 Ill. 2d at 426. Since the inception of the contact sports exception, Nabozny and its p roge ny have c larified what constitutes a contact sport for the
con tact spor

ts exc eption to apply. Compare Keller v . Mols , 156 Ill. App. 3d 235, 237 (1987) (holding that an informal game of floor hockey is a contact sport), with Novak v. Virene , 224 Ill. App. 3d 317, 320-21 (1991) (holding that down

hill skiing is not a contact sport). The se case s clear ly provide that t he cou rt mus t cons ider t he obj ectiv e facto rs sur round ing the gam e itself and not the subjective expectations of the parties. Karas v . Strevel l , 227 Ill. 2d 440, 454 (2008), citing Landrum v. Gonzalez , 257 Ill. App. 3d 942, 947 (1994). However, whether the contact sports exception is applicable to a plain tiff who was not actively partaki ng in a contact sport is less clear. In Karas , our supreme court addressed whether the contact sports exc eption wa s applica ble to organizational defendants. The plaintiff in Karas was a participant

ina high school hockey

game who was checked f rom behind in violation of league rules and commenced a lawsuit against other play ers and various organizational defendants, including the hockey league, for injuries that allege dly resulted from the c heck from behind. Karas , 227 Ill. 2d at 443-45. The allegations against the organ izational d

efenda nts alleg ed that th ey

failed to adequa tely enforce the rules aga

inst checking from behind. Karas , 227 Ill. 2d at 445. In considering w hether the contact sports exception applied to the organizational defendants, our supreme court relied on the California Supreme Court decision in Kahn v. East Side Union High School District , 31 Cal. 4th 990, 75 P.3d 30, 4 Cal. Rptr. 3d 103 (2003). In Kahn , the California Supreme Court held that the contact sports exc eption ap

plied to a sports inst

ructor or coach

whose al leged l iability

was based

onNo. 2--08--0789

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the claim that he or she failed to adequately instructa player or challenge a play

er to perform above his or her capabilities. Kahn , 31 Cal. 4th at 996, 75 P.3d at 32-33, 4 Cal. Rptr. 3d at 106. Relying
on Kahn , our supreme court in Karas concluded that whether the contact

sports exception applied to a nonparticipant defendant was a policy determination that rested on the circumstances of the sport and its inherent risk, the relationship of the parties to the sport and to each other, and w hether imposing broader liability on the de fendant " 'would harm the sport or cause it to be changed or abandoned.' " Karas , 227 Ill. 2d at 465, q uoti ng Kahn , 31 Cal. 4t h at 1006, 75 P.3d at 3 9, 4 Cal. Rptr. 3d at

115. The Karas court held that the contact sports exception applied to the organizational defenda nts because imposing too strict a stand ard of liability on those de fendant s for fa iling to adequa tely enforce rules would have a chilling effect on the vig orous participation in the sport of hockey a nd would open the door to a surfeit of litigation. Karas , 227 Ill. 2d at 464. Alth ough the decisions in Karas and K ahn are f actually distinguishable , their underlying rationa le is appli cable to

the present case in deciding whether plaintiff was a participant subject to the conta ct spo rts ex cepti on. W e concl ude th at perm itti ng plaintiff to maintain a cause of action agains tdefendants based on ordinary negligence would

not violate the spirit and purpose of the contact sports exception. Our

de te rm in at io n r es ts on th e a ll eg ed ci rc um st an ce s o f p la in ti ff 's in ju ry, the relationship of

the parties to each other and the sport of hockey, a

nd whether allowing plaintiff to bring a cause of action pr emised on ordinar y ne glige nce woul d harm the

sport of hockey

or cause it to be changed. See Karas , 227 I ll. 2d at 465. With respect to the circumstances of plaintiff's injury
as all eged in plaintiff's amended complaint, which we must accept as true for the purposesof a section2--619 motion to dismiss (see LaSalle Bank Na tion al Ass 'n , 355 Ill. App. 3d at 634), this is nota scenario in which the contact sports exception has ty pically been a

pplied. For

example, th eNo. 2--08--0789

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plaintiff in Karas brought a lawsuit as a result of injuries he suffer ed while he was playing

in a hockey game ( Karas , 227 Ill. 2d at 444), and the plaintiff i n Kahn was a member of a high school swim team who was injured while partaking in the sport of swim ming ( Kahn , 31 Cal. 4th at 997, 75 P.3dat 33, 4 Cal. Rptr. 3d at 107). Conv ersely

, here, p laintiff

was not a play er for the Chicag o Steel, notother wise a ffili ated w ith t he Chi cago Steel, and not otherwise partaking in the sport of hockey
or the game of snipi

ng that allegedly

occurr ed on October 24, 2004. Rather, he was a trainer employed by an independe

ntcompany providing

training services to the Chicago Steel and wa s only inthe vicin

ity o f the hockey

rink duri ng pra ctice to r eplace water bottles, whi ch was r equired of him pursuant to his job re sponsibilit

ies. Ther efore, this is not a situa

tion that r equires us to take

into account the voluntary nature

of plaintiff' s "partic ipation in games whe re phy sical contact is anticipated

and where the risk of injury caused by this conta

ct is inherent." See Pfister , 167 Ill. 2d 417. Further, unlike the org anizational defendants in Karas and the sw im-coac h defend ant in Kahn , plaintiff

's rela tionship wi

thdef end ant s he re a nd t he s por t o f ho cke y was att enu ate d. In Karas , the court determined that the contact sports exception should apply to the organizational defenda nts, and therefore they

could not be liablefor ordinary negligence, in part bec ause enforcing rules and making officiating decisions involve subjective decision making that takes place during a fast-paced game and is prone to second-guessing. Karas , 227 Ill. 2d at 440. L ikewise, the court in Kahn held that the contact sports exception should be invoked for the swim-coac h defendant because a significant

part o f an in struc tor's role is to challenge the athlete to perform be tter. Kahn , 31 Cal. 4th at 996, 75 P.3d

at 32, 4 Cal. Rptr. 3d

at 106. Th e emphas is place d on the de fendant s' rela tionship to the sport

and to the particip ants in both Karas and Kahn strongly suggests that an important factorNo. 2--08--0789

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indetermining if the contact sports except ion sh ould be invoked is whether the parties bore a significant

relationship to each other and the sport being p layed. Bas ed on the f acts alleged here, we conclude that plaintiff, as a trainer employ ed by an indepe

ndent training company

tha t contract ed to provide training services to the arena, a nd who was not otherwise engaging in conduct inherent in the sport of hockey, did not bea r a significant relationship to either the sport of hockey or the particip ants to the extent that the contact sports exception should be invoked as a matter

of po li cy. Therefore, the trial court's conclusion that the contact sports exception applied because plaintiff was within an area natural ly e

ncompass e d by the s port of hockey was erroneous, as its ruling was not premised on the policy considera

tions put forth by our supreme c ourt in Karas
. See Karas , 227 I ll. 2d at 465. Moreover, concludingthat defendants could be liable for negligence ba sed on the conduct alleged will not have a

chilling effect on vigorous participation in the sport of hoc key. The a

mended complaint alleged that La

mpl had set up water bottles on the bench wall and was shooting pucks at thos e bottles . The amended complaint further allege d that the Chicago Steel had failed to stop players shooting pucks at water bottles in the bench area. Unlike body checking, shooting pucks at
w ater bottles located in the bench area, as opposed to shooting pucks a t a goal or at othe r target s within the ice rink, is not an inherent part of the sport of hockey . See gen e ra ll y Karas , 227 Ill. 2d at 456-57 (stating that body checking is an inherent part of hocke y). There fore, establish

ing liab ility agains ta person who engage d in sniping at water bottles in the bench area will not chang e the ga

me of hockey a s we commonly know it to be play ed. Fi na ll y, our determination that plaintiff can maintain a cause of acti on aga

inst defe ndants premised on ordina ry neglig ence is c onsistent w iththe spirit

and purp ose for w

hich the c ontact sp ortsNo. 2--08--0789

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exception was c reated. The reviewing court in Nabozny create d the cont

act spor ts exception as a result of an in ju ry a goalie in a soccer match sustained fr om another playe

r in that match. Nabozny , 31 Ill. App. 3d at 213-14. The court consider ed the policy impl ications o f imposing ordinary negligence

liability and rea soned tha

t, although the law should not impose burdens on the free and vigorous particip ation in sp orts by our y outh, "some of the restraints of civilizationmust accompany [an] athlete on t o the playing field." Nabozny , 31 Ill. A pp. 3d at 215. The court held that it had "care fully drawn" an exception that provides that a play er should be liable for conduct th at was willful or wa nt on or de mo ns tr at ed a r ec kl es s d is re ga rd fo r t he sa fe ty o f another playe

r. Nabozny , 31 Ill. App. 3d at 215. Under the fac ts prese

nted in this

case, however, extending the conta ct sports exception to prevent a trainer, who was providing tra ining services to any

one who used the ice arena and not the hockey tea

m specifically, a

nd who suffered i nj uries as a result of alleged conduct that
was not inherent to the sport of hockey , would ex tend the contact sports exception beyond the rationales for whic

h it was or iginally intended --to avoid placing an unreasonable burde n on vigorous participation

in sports by our

you th and to control a new type of litigation. Accordingly , we therefore hold that the trial c ourt err ed when i t dismissed

counts I and I I of p laintiff

's amen ded compl aint. For the foregoing r

easons, we reverse the

judgment of

the circ uit court o f Du Pag e County and remand this matter for further procee dings consistent with this opinion. Reversed and remanded. BOWMAN and BURKE, JJ., concur.