Allison v. United States

927 F. Supp. 2d 550, 2013 WL 811434, 2013 U.S. Dist. LEXIS 29875
CourtDistrict Court, C.D. Illinois
DecidedFebruary 21, 2013
DocketNo. 09-cv-3341
StatusPublished

This text of 927 F. Supp. 2d 550 (Allison v. United States) is published on Counsel Stack Legal Research, covering District Court, C.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allison v. United States, 927 F. Supp. 2d 550, 2013 WL 811434, 2013 U.S. Dist. LEXIS 29875 (C.D. Ill. 2013).

Opinion

OPINION

RICHARD MILLS, District Judge:

A high school senior claims he was injured while sparring against an Army re[552]*552cruiter during a martial arts demonstration during a school gym class.

However, the contact sports exception to tort liability applies.1

Summary judgment must be entered for the United States.

I.

In October 2007, two U.S. Army recruiters — Staff Sergeants Gary A. Roth and Mark White — were actively looking for opportunities to speak with young people regarding serving in the Armed Forces.

Roth and White were invited to spend a day with the physical education classes at Virden High School,2 Virden, Illinois. During the day they would be demonstrating the Modern Army Combatives Program — a program primarily based on Brazilian jiu jitsu that the Army uses to prepare soldiers for hand-to-hand combat.

The recruiters arrived on the morning of October 17, 2007, and prepared for the day by placing the school’s mats on the floor. Roth and White demonstrated the basic positions and techniques, and had the students pair up and practice with their partners. The parties dispute whether Roth and White specifically told the students that the use of the “armbar” technique would be prohibited, while agreeing that the recruiters did prohibit hitting, choking, or hurting others.

One of the students in attendance was Plaintiff Nathan Allison. Allison, who was seventeen at the time, had become familiar with mixed martial arts from watching televised matches. During the first portion of the class period, Allison had done well against his peers.

Eventually, the recruiters asked for volunteers to demonstrate in front of the entire class. Allison willingly accepted the invitation, and issued a challenge to Roth, stating that he could easily force Roth into submission.

The two began sparring, and Allison was unable to force Roth into submission. After a minute or two, Allison began to get frustrated and started to thrash about carelessly. Allison then became aggressive and began to dig his elbows into Roth’s inner thigh, getting close to Roth’s genital area. The recruiters recognized this as a jiu jitsu move. Allison also began pressing on and striking Roth’s chin in an aggressive fashion, and Roth became concerned because he did not have a mouth guard.

Roth decided that it was time to stop the demonstration, so he used the armbar technique against Allison — taking Allison’s extended arm and rotating it straight backwards so as to put pressure on Allison’s shoulder. Roth testified that the arm was not twisted behind Allison’s back.

Allison communicated his submission by tapping the floor.

Following the match, Roth shook Allison’s hand and ensured that he was alright. Allison and Roth discussed opportunities in the Army for several minutes before the class period ended. Allison did not indicate to the recruiters that he was in any pain at that time.

Allison stated under oath that his shoulder was tender immediately after sparring with Roth.

[553]*553Allison fully participated in his physical education class in the days and weeks after the recruiters visited.

A short time later the high school basketball season began, and Allison was a member of Virden High School’s team. During the month of November in 2007, he felt his shoulder pop in practice on one occasion, and at a different time that month, his shoulder was slammed into a wall while playing basketball. During that period he alternatively played through the pain, took pain relievers, used ice, and sat out from basketball.

Eventually, he sought medical attention, and the documentation associated with his visits reflects that either Allison or his mother initially reported that he was seeking treatment following a basketball injury.

Eventually, he consulted with a specialist, who performed surgery on the shoulder in late December 2007. The specialist would later conclude that Roth’s application of the armbar, combined with being slammed into a wall during basketball practice, led to Allison’s injury.

II.

Allison filed an administrative claim with the Army on November 3, 2008. The administrative claim was denied on July 2, 2009.

On December 30, 2009, this Federal Tort Claims Act case was initiated against the United States, Roth, and White. Allison made the same two claims against each of the three Defendants — one negligence claim and one wanton conduct claim. In the Complaint, Allison alleged that the incident occurred at a non-sanctioned, non-school sponsored wrestling match, that Roth and/or White violated the rules of the match, that they were negligent, and that the activities were carried out without parental consent. Allison alleged that the Defendants breached their duty of ordinary care.

On April 9, 2010, the United States filed a Westfall Act certification executed by the United States Attorney, stating that Roth and White were acting within the scope of their job duties at the time the incident occurred. See 28 U.S.C. § 2679; 28 C.F.R. § 15.4. The Court allowed the United States’ motion to enter judgment in favor of Roth and White, on the basis of the pleadings and the Westfall Act certification.

On June 22, 2011, the United States filed a Motion for Summary Judgment, claiming that it was entitled to judgment because the contact sports exception to tort liability precludes any recovery. Allison requested permission to file an amended complaint which would have altered the nature of the claim — instead of a wrestling match that was not approved by the school, Allison argued that the recruiters were teaching a class and the activities were not covered by the contact sports exception. The Court denied the request to file the amended complaint on March 28, 2012.

III.

“Summary judgment is appropriate when the evidence submitted, viewed in the light most favorable to the non-moving party, shows ‘no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Smith v. Hope School, 560 F.3d 694, 699 (7th Cir.2009) (quoting Fed.R.Civ.P. 56(c) and citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

In order to survive summary judgment, there must be sufficient evidence that a reasonable factfinder could return a verdict for the nonmoving party. Trade Finance Partners, LLC v. AAR Corp., 573 F.3d 401, 406-407 (7th Cir.2009).

[554]*554“[A] motion for summary judgment requires the responding party to come forward with the evidence that it has — it is the ‘put up or shut up’ moment in a lawsuit.” Eberts v. Goderstad,

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927 F. Supp. 2d 550, 2013 WL 811434, 2013 U.S. Dist. LEXIS 29875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allison-v-united-states-ilcd-2013.