Lestina v. West Bend Mutual Insurance

Citations: 501 N.W.2d 28; 176 Wis. 2d 901; 55 A.L.R. 5th 863; 1993 Wisc. LEXIS 532Docket: 91-3030

Court: Wisconsin Supreme Court; June 16, 1993; Wisconsin; State Supreme Court

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In the case of Robert F. Lestina v. West Bend Mutual Insurance Company and Leopold Jerger, the Supreme Court of Wisconsin addressed the standard of care applicable to recreational sports players causing injury to others during competition. The circuit court had ruled that negligence was the relevant standard, which the Supreme Court affirmed. The plaintiff, Lestina, sustained injuries during a soccer match organized by the Waukesha County Old Timers League, where he collided with defendant Jerger, the opposing team's goalkeeper. The incident occurred after Lestina had scored a goal, and he claimed that Jerger executed a prohibited "slide tackle" to prevent a second goal, while Jerger contended that the collision was accidental as both players attempted to kick the ball.

Following the injury, Lestina filed a personal injury lawsuit citing negligence and recklessness. Jerger sought summary judgment, arguing that Lestina's claims did not meet the legal threshold for negligence in a recreational sports context, but the circuit court denied this motion based on precedent. The parties subsequently agreed to limit the trial to the negligence issue, with a stipulation regarding damages based on the jury's findings. The jury found Jerger 100% causally negligent, and post-verdict motions challenging the negligence standard were denied by the circuit court. Jerger's appeal to the court of appeals on this standard led to the certification of the case to the Supreme Court, which ultimately upheld the negligence standard for liability in recreational team contact sports.

The central legal question in this case is whether negligence is the applicable standard for participants in recreational team contact sports. The circuit court previously held that negligence was the controlling standard, referencing Ceplina v. South Milwaukee School Board, where a sixth-grade student was injured during a softball game. In Ceplina, the complainant's negligence claim against her teammate, who unintentionally struck her with a bat, was upheld despite the defendant's argument that the danger was open and obvious. The court affirmed the trial court's decision to deny summary judgment, stating that the jury should determine if either player was causally negligent. However, this case did not address the broader question of whether negligence should govern sports-related injuries, leading the current court to find Ceplina unpersuasive in this context.

The court notes that jurisdictions have applied three main legal theories to sports injury cases: intentional torts, willful or reckless misconduct, and negligent conduct. Historically, courts have been hesitant to grant damages for injuries in contact sports unless there is clear intent to harm. While both parties agree that intentional torts, such as assault and battery, apply, they differ on the standard to be used for negligence or recklessness. The defendant advocates for a recklessness standard, while the plaintiff argues for negligence. Several courts have determined that recklessness is applicable in personal injury cases among sports participants, positioned between intentional acts and negligence. The Restatement (Second) of Torts defines recklessness as conduct that is so dangerous that the actor knows or should know it is likely to cause harm. The lead case establishing this principle is Nabozny v. Barnhill, which holds that a player can be liable for injuries caused by conduct that is deliberate, willful, or shows reckless disregard for another player's safety.

The legal case Nabozny involved a soccer match where a player, in the goal area, was kicked in the head by an opposing player, referred to as the tortfeasor. Witnesses indicated that the tortfeasor could have avoided the kick and that his actions were against the game's rules. The court established a recklessness standard for liability, asserting that this approach balances the need to encourage vigorous participation in contact sports with the necessity of holding players accountable for dangerous conduct. The court acknowledged that while sports should not be inhibited by the threat of litigation, athletes must still adhere to reasonable safety standards. The Massachusetts Supreme Judicial Court also supports this recklessness standard, arguing that it prevents players from seeking retaliation and promotes safe competition. Several other jurisdictions have followed suit, reinforcing the notion that sports-related injuries should only be actionable in cases of gross negligence or recklessness. However, the plaintiff in the current case challenges the applicability of this standard in Wisconsin, claiming the state does not recognize the assumption of risk doctrine, which is often linked to the recklessness standard in other jurisdictions. The plaintiff contends that negligence should be a valid basis for recovery, although such cases are rare due to concerns that imposing liability could deter participation in sports. Ultimately, the document suggests skepticism towards the dismissals of negligence claims in favor of a recklessness standard.

The application of the negligence standard is argued to effectively achieve the same objectives as the recklessness standard for cases involving recreational team contact sports. The negligence standard requires individuals to exercise ordinary care, allowing for adaptability to various situations where negligence may vary based on circumstances. Factors influencing the assessment of a player's conduct include the sport's rules, accepted customs, inherent risks, presence of protective gear, and the participants' characteristics and skills. The flexibility of the negligence standard is deemed adequate to accommodate the vigorous nature of sports without necessitating a recklessness standard. 

However, a dissenting opinion posits that the unique characteristics of contact sports warrant a different standard of care, arguing that ordinary negligence may discourage active participation. This dissent aligns with other jurisdictions that maintain that personal injury claims in athletic contexts should be based on reckless disregard for safety, rather than mere negligence. The dissent references case law supporting this perspective, emphasizing the complexities of imposing a duty of care in sports and the need to avoid imposing excessive liability that could stifle athletic competition.

Athletes must adhere to certain societal norms while participating in sports, which necessitates reasonable controls to protect both players and the integrity of the game. Legal precedent across various jurisdictions establishes that personal injury claims stemming from athletic events require a showing of reckless disregard for safety, rather than mere negligence. Cases such as Hackbart v. Cincinnati Bengals, Nabozny v. Barnhill, and Kabella v. Bouschelle support this standard, emphasizing that allowing liability for reckless misconduct helps reduce the likelihood of players seeking retaliation and maintains the enthusiasm of participation without the chilling effect of potential litigation.

In Ross v. Clouser, the court ruled that a player injured during a game must demonstrate recklessness for a valid claim, as fear of liability for negligence could hinder the competitive spirit of sports. The recklessness standard, based on the Restatement (Second) of Torts, defines it as conduct that knowingly creates an unreasonable risk of significant harm to others. Unlike negligence, which may arise from inadvertence or lack of skill, recklessness involves a conscious choice to engage in risky behavior despite an awareness of the potential dangers. Overall, the legal framework underscores the necessity for a balance between protecting players and promoting active engagement in sports.

Disagreement is expressed with the majority's view that the negligence standard suffices for addressing issues in sporting contexts, particularly regarding contact sports. The standard jury instruction on ordinary negligence was provided, defining negligence as a failure to exercise ordinary care, which is the level of care expected under similar circumstances. However, the jury was not instructed on how to apply this standard considering the context of voluntary sports participation, where the potential for injury is inherent. The dissent argues that actions taken in the course of a game, even if they violated a rule, should not be the basis for a negligence claim, as the primary goal of courts adopting a recklessness standard is to prevent discouragement of active participation in sports due to litigation fears.

An example from the case illustrates the problematic nature of applying the ordinary negligence standard: the plaintiff's attempt to introduce expert testimony regarding recklessness in a pickup basketball game was denied, highlighting the challenge in establishing negligence in such contexts. The dissent emphasizes that Wisconsin should align with the judicial trend favoring the recklessness standard for sports-related injuries, given that participants in contact sports inherently accept greater risks. The conclusion reached is that liability for injuries in contact sports should only arise from reckless disregard for safety, not from ordinary negligence, warranting dismissal of the negligence claim. Justices STEINMETZ and BABLITCH concur with this dissenting opinion.

The court established that individuals have a duty of care to avoid actions that could foreseeably harm others. In this case, the complainant's understanding of the risks associated with a swinging bat was considered relevant to the principles of contributory negligence within the framework of ordinary negligence. The Restatement (Second) of Torts addresses sports injuries by focusing on intentional torts and consent in the context of participation in games, indicating that players consent to typical contacts but not to actions violating the rules designed for their protection. Reckless conduct is defined as knowingly creating an unreasonable risk of harm that exceeds ordinary negligence. Commentators note ambiguity in the legal standard articulated in the Nabozny opinion, suggesting it may reflect an ordinary negligence standard while also considering contributory negligence. This raises questions about the appropriate standard of conduct in such cases, particularly given that the claim was based on ordinary negligence rather than reckless conduct.

Various legal cases illustrate the application of recklessness and negligence standards in sports-related injuries. Courts have consistently applied the reckless disregard for safety standard in numerous recreational settings, including college hockey (Gauvin v. Clark), church picnics (Ross v. Clouser), and informal basketball games (Dotzler v. Tuttle). Specific cases, such as Kabella v. Bouschelle, highlight instances where claims for negligence were disallowed in favor of recklessness in recreational football. Additionally, cases like Picou v. Hartford Ins. Co. and Connell v. Payne demonstrated the adoption of the recklessness standard despite the prevailing defense of contributory negligence in those states. 

Most negligence cases, such as Babych v. McRae (professional hockey) and LaVine v. Clear Creek Skiing Corp. (skiing collision), do not involve contact team sports. There is a notable distinction where negligence was applied in injuries during golf (Duke's GMC, Inc. v. Erskine) and softball (Bourque v. Duplechin), though some cases like Picou later adopted a recklessness standard. The plaintiff references Wisconsin statute sec. 895.525, asserting it establishes a negligence standard for recreational activities; however, this statute was enacted post-injury and its applicability, particularly regarding team contact sports, remains disputed by the parties involved.