Weisberg v. Chicago Steel

922 N.E.2d 489, 397 Ill. App. 3d 310, 337 Ill. Dec. 366, 2009 Ill. App. LEXIS 1337
CourtAppellate Court of Illinois
DecidedDecember 31, 2009
Docket2-08-0789
StatusPublished
Cited by3 cases

This text of 922 N.E.2d 489 (Weisberg v. Chicago Steel) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weisberg v. Chicago Steel, 922 N.E.2d 489, 397 Ill. App. 3d 310, 337 Ill. Dec. 366, 2009 Ill. App. LEXIS 1337 (Ill. Ct. App. 2009).

Opinion

JUSTICE HUTCHINSON

delivered the opinion of the court:

Pursuant to Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)), plaintiff, Michael Weisberg, appeals an order from the trial court granting the motion of defendants, Chicago Steel and Cody Lampl, to dismiss pursuant to section 2—619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2—619 (West 2004)); the order dismissed counts I and II of plaintiffs four-count amended complaint. Counts I and II alleged negligence against defendants, and counts III and IV alleged willful and wanton conduct against defendants, respectively. The only issue raised on appeal is whether the trial court erred when it granted defendants’ motion to dismiss with respect to counts I and II. For the reasons set forth below, we reverse and remand.

The relevant facts are not in dispute. Plaintiff was employed by Chicago Acceleration and was assigned to provide athletic training services to the Chicago Steel, an amateur hockey team part of the United Hockey League. Lampl was a player on the Steel at all relevant times herein.

Plaintiffs duties as athletic trainer included refilling water bottles 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 Steel was engaged in a practice at the Edge Ice Arena in Bensenville. Plaintiff was in the trainer’s room working on paperwork when he heard a player banging a stick on the locker room door. As plaintiff entered the bench area to refill the water bottles, he was struck in the right eye by a hockey puck. Plaintiff suffered a fracture below his right eye and retinal tearing, which resulted in permanent vision loss.

On July 15, 2005, plaintiff filed a complaint against defendants. As amended, plaintiffs complaint alleged two counts of negligence and two counts of willful and wanton conduct against defendants. Count I of the complaint alleged that the Chicago Steel committed negligence by failing to prevent players from shooting pucks toward the bench area. Count II alleged that Lampl committed negligence by engaging in “sniping,” or shooting pucks at water bottles on the bench, as plaintiff entered the bench area to refill the water bottles. Counts III and IV of the complaint alleged that the Chicago Steel and Lampl engaged in willful and wanton conduct, respectively. Defendants filed a joint motion 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. Alternatively, defendants’ motion requested that the trial court grant summary judgment in their favor with regard to counts III and IV pursuant to section 2—1005 of the Code (735 ILCS 5/2—1005 (West 2004)). On June 30, 2008, the trial court granted defendants’ section 2—619 motion to dismiss with regard to the negligence claims, concluding that plaintiffs negligence claims were barred by the contact sports exception, but denied the remainder of defendants’ motion. Specifically, in rendering its order, the trial court concluded that the parties were engaged in hockey, which is a contact sport, and then held that “plaintiff was a person who, when he was injured by the hockey activity, though 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 game, namely the bench area *** and the contact sports rule applies.” On plaintiffs motion, the trial court amended its order on July 24, 2008, to include language pursuant to Rule 304(a) (210 Ill. 2d R. 304(a)) with respect to the dismissed counts. Plaintiff timely appeals.

A section 2—619 motion to dismiss admits the legal sufficiency of the complaint, but raises defects, 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 action should be dismissed pursuant to section 2—619, all well-pleaded facts in the complaint are admitted together with all reasonable inferences that can be drawn from those facts in the plaintiff’s favor. LaSalle Bank National Ass’n v. Village of Bull Valley, 355 Ill. App. 3d 629, 634-35 (2005), citing Redwood v. Lierman, 331 Ill. App. 3d 1073, 1076-77 (2002). In deciding the merits of a section 2—619 motion, the trial court may not determine disputed factual issues without an evidentiary hearing. LaSalle Bank National Ass’n, 355 Ill. App. 3d at 635, citing Timberline, Inc. v. Towne, 225 Ill. App. 3d 433, 439 (1992). Where a cause of action is dismissed under a section 2—619 motion, 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. LaSalle Bank National Ass’n, 355 Ill. App. 3d at 635, citing Nowak v. St. Rita High School, 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 National Ass’n, 355 Ill. App. 3d at 635, citing Nowak, 197 Ill. 2d at 389.

On appeal, plaintiff contends that the trial court erred in dismissing counts I and II of the complaint pursuant to section 2—619 of the Code. In support of this contention, plaintiff argues that the contact sports exception is not applicable and defendants should be held liable for negligent conduct because plaintiff was not a participant in a contact sport, but rather, an athletic trainer providing training services. In the alternative, plaintiff argues that, even if he is considered a participant in a contact sport, the contact sports exception does not apply, because sniping involves conduct that was “totally outside the range of ordinary activities associated with ice hockey.”

The contact sports exception is a judicially created exception to ordinary negligence claims, which provides that voluntary participants in a contact sport may be held liable for injuries to coparticipants caused by willful 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. Barnhill, 31 Ill. App. 3d 212, 215 (1975). In creating the contact sports exception, the court in Nabozny stated that its underlying purpose was to ensure that the law did not place unreasonable burdens on the free and vigorous participation in sports by our youth, and therefore the exception was “carefully drawn” to control a new field of personal injury litigation. Nabozny, 31 Ill. App. 3d at 215. By allowing recovery for injuries resulting from willful and wanton and intentional misconduct, but not ordinary negligence, the contact sports exception takes into account the voluntary nature of participation in games where physical contact is anticipated and where the risk of injury caused by the contact is inherent. Pfister v. Shusta, 167 Ill. 2d 417, 427 (1995).

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Bluebook (online)
922 N.E.2d 489, 397 Ill. App. 3d 310, 337 Ill. Dec. 366, 2009 Ill. App. LEXIS 1337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weisberg-v-chicago-steel-illappct-2009.