Tired of Winter? Ponder and Protect Yourself from the Possible Liability in Managing Fun, Outdoor Activities.
by Meaghan Brady
Two recent Illinois appellate court cases address the possible liability in managing outdoor activities. In Gvillo v. DeCamp Junction, Inc., the court addressed the issue of whether the contact sports exception applied to the organizational defendants, Decamp Junction, Inc. and its employee, Moultrie, under the circumstances of the case. The contact sports exception bars a plaintiff from suing a co-participant in a contact sport for ordinary negligence. Instead, the plaintiff must prove willful and wanton or intentional misconduct to prevail.
Plaintiff was injured during an informal amateur softball game when the defendant base runner collided with him while he was attempting to make a catch at first base. Plaintiff alleged that the organizational defendants set up the softball field in an unreasonably dangerous manner, which caused the collision. Plaintiff alleged that the organizational defendants neglected to follow two safety rules of the Amateur Softball Association (ASA) that are designed to prevent collisions between batters and first basemen. Specifically, plaintiff alleged the defendants: (1) failed to use a double base for first base; and (2) failed to paint a running lane along the baseline to first base.
The trial court initially denied the motion for summary judgment filed by Decamp Junction, Inc. and its employee, Moultrie, but then reconsidered, granting the motion. The appellate court reversed and remanded, finding that the contact sports exception did not apply to the organizational defendants under these circumstances, and therefore, the Plaintiff only had to show ordinary negligence by the organizational defendants to prevail. This case is significant because it holds that based on the circumstances, plaintiffs may only have to prove ordinary negligence to prevail against informal amateur sporting clubs.
In Barnett v. Ludwig & Co., Plaintiff brought a negligence claim after Darius Smith drowned in an apartment pool where no life guard was on duty. The trial court granted summary judgment for the defendants, holding that defendants had no duty to provide Darius a lifeguard. On appeal, Plaintiff claimed that defendant's duty to have a lifeguard arose under common law and statutory and administrative provisions, specifically section 820.300(b) of the Illinois Administrative Code. Section 820.300(b) states, "[l]ifeguards shall be provided at all pools, when persons under the age of 16 are allowed in the pool . . . without supervision by a parent, guardian or other responsible person at least 16 years of age. At facilities where lifeguards are not provided, a sign shall be posted that states 'This facility is not protected by lifeguards. Persons under the age of 16 must be accompanied by a parent, guardian or other responsible person at least 16 years of age. Swimming alone is not recommended.'"
Plaintiff argued that defendants violated the regulation, and that a violation of a regulation designed to protect human life is prima facie evidence of negligence. Although the plaintiff was correct, the court noted that a party injured by such violation can only recover if: (1) the party suffered the kind of harm the provision was meant to prevent, and (2) the party falls within the class of persons the provision was meant to protect. Section 820.300(b) requires a lifeguard to be on duty "when persons under the age of 16 are allowed in the pool . . . without supervision by a parent, guardian or other responsible person at least 16 years of age." Since Darius was 17 and was not within the class of persons intended to be protected under the regulation, the appellate court held that defendants owed no duty to Darius to provide a lifeguard. Alternatively, the court held that even if a duty to Darius could be derived from section 820.300(b), defendants fulfilled that duty by posting the proper notice required by the regulation in the pool area that read: "NOTICE. This facility is NOT protected by lifeguards. Persons under the age of 16 must be accompanied by a parent, guardian, or other responsible person at least 16 years of age. Swimming alone is not recommended." This case reiterates the well-known principle that managers of residential buildings with pools must strictly enforce the policies and regulations when allowing tenants and their guests to enter the pool area. If Darius had been just a few months younger, the defendants may have been liable for letting him in the pool without a responsible adult.