dissenting:
I dissent from the reasoning and result reached in the majority opinion.
It is evident that the plaintiff was guilty of contributory negligence. Previous to his injury he had participated in the unsupervised game of “tackle the football” with other youngsters, both boys and girls. The defendant, a later arriver at the Cronin’s backyard, was invited to take part in the game by the participants. When the plaintiff decided to cease playing the game he seated himself in the same backyard where the “tackle the football” game had been played. The plaintiff saw the defendant and another youngster continue to play in the backyard by passing and catching the football. Thus the plaintiff was aware of the defendant’s activities prior to the accident and before the plaintiff was warned by the Slaughterback youngster to “watch out.”
In the light of such a factual situation it cannot be logically concluded that the plaintiff did not knowingly place himself in a position of danger and thereby assumed the risk of injury. (Colclough v. Orleans Parish School Board (La. App. 1964), 166 So.2d 647.) In Colclough a father sued for injuries received when he was run into by high school football players who were making an end run. The father was a spectator watching his son participate in a team scrimmage in an open area of a city park which had neither markings of gridiron boundary lines nor seats or accommodations for spectators. There were no barricades around the playing fields. The appeals court of Louisiana noted that plaintiff s complaint contained no allegation of malicious or willful conduct and stated that as regards the plaintiff, “There is no reasonable hypothesis that he was free from negligence.” (See also Cadieux v. Board of Education (1966), 25 App. Div. 2d 579, 266 N.Y.S. 2d 895.) In Cadieux the reviewing court stated that it is well settled that a spectator at a sporting event assumes the obvious and necessary risks incidental to a game. Like results were reached in the cases of Ingerson v. Shattuck School (1931), 185 Minn. 16, 239 N.W. 667 (lady spectator injured when standing on the sidelines by being struck by high school age football players), and Turner v. Caddo Parish School Board (1968), 252 La. 810, 214 So. 2d 153 (a grandmother spectator was denied recovery for injuries received at a ninth grade football game and the reviewing court, inter alia, held that the plaintiff was charged with common knowledge that players run out of bounds), and Perry v. Seattle School District (1965), 66 Wash. 2d 800, 405 P.2d 589 (spectator injured at high school football game held to have committed contributory negligence when she positioned herself along the sidelines). The same rules as to contributory negligence or assumption of risk has been applied as to spectators at a baseball game. Brown v. San Francisco Ball Club (1950), 99 Cal. App. 2d 484, 222 P.2d 19; Cincinnati Baseball Club Co. v. Eno (1925), 112 Ohio St. 175, 147 N.E. 86.
The foregoing cited cases all relate to injuries received by spectators, and the majority opinion concludes that the plaintiff was not contributorily negligent by categorically classifying him as a nonspectator. The question as to contributory negligence or assumption of risk in the instant case cannot be so casually or easily determined. A pedestrian traveling on a sidewalk when struck by a baseball resulting from a game being played on unfenced city property was entitled to recover damages from the city. (Jones v. Kane & Roach, Inc. (1943), 182 Misc. 37,43 N.Y.S. 2d 149.) Such a factual situation was far different from the one presented to this court. We are confronted with a situation where a voluntary “tackle the football” game took place in a back yard. The plaintiff was a participant and along with other youngsters invited the defendant to participate. The game called “tackle the football” included among other feats the passing and catching of a football. When the game was terminated the passing and catching of a football continued in the same yard. The plaintiff chose to seat himself in that yard with his back turned to the activity. The record discloses that the plaintiff was aware of the continued activity in the yard because he saw it, yet he chose not to remove himself from the sphere of activity. Technically it could be argued that the plaintiff was a spectator, but I am not constrained to consider the question as to whether or not he was a spectator to be of any import. The plaintiff had knowledge and familiarity that the movements of participants passing and throwing a football are not relegated to a set, precise, defined portion of a play area. He was aware of the activity and failed to exercise ordinary care by locating himself in the play area and turning his back on the activity. I fail to find it logical to conclude that there is no assumption of risk when a participant in an unregulated game, fraught with some risk, terminates his participation and is injured when he seats himself on the edge of the playing area with his back turned to activity like that in which he participated a few minutes earlier. Based upon my rationale, the plaintiff was guilty of contributory negligence as a matter of law.
I further cannot accept a determination that the defendant was a tortfeasor. Mr. Justice Schaefer of our supreme court stated:
“In many negligence cases no more than foreseeability is involved. And because so many actions grounded upon negligence involve familiar patterns of conduct, it is easy to forget that implicit in an allegation of negligence is the assertion of a failure to comply with the standard of care that the law requires — the assertion of a duty and its breach. (See Prosser on Torts, sec. 36; Green, Duties, Risks, Causation Doctrines, 41 Tex. L. Rev. 42, reprinted in Green, The Litigation Process in Tort Law 125; Harper & James, The Law of Torts, sec. 18.2; Gregory & Kalvan, Cases and Materials on Torts 252.)” Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, 233.
In the instant case there was no evidence of reckless, malicious, willful or wanton conduct on the part of the defendant. Nor did the defendant violate any established rule of a game or contest. The evidence failed to disclose any indifference to a conscious disregard on the part of the defendant as to the safety of others. The defendant was found guilty of violating the simple negligence standard. The act of running to catch a football was found to be a tortious act because in so catching the ball he fell upon the plaintiff. After the accident, hindsight makes the occurrence foreseeable. Foreseeability alone, however, does not determine whether an act is tortious. At the base of every tort case in which liability is imposed on a defendant there must be a duty. For the purpose of litigation the duty issue should be specifically stated, to wit, does the defendant’s duty, whatever it may be, extend to the specific injury which the victim has received? See Green, Duties, Risks, Causation Doctrines, 41 Tex. L. Rev. 42, 4546 (1962).
Directing the “duty” question to the defendant in the instant case it should be asked, was he under a duty not to participate in a backyard game of passing or catching a football? Was he under a duty to take his eyes off the ball when he attempted to catch it? Was he under a duty to restrict his activity to a defined portion of the yard? The answers to these questions are in the negative, as is the answer to the overall question as to whether the defendant violated or ignored any duty in regard to the injury suffered by the plaintiff. An accident occurred, albeit a regrettable one, but contrary to what appears to be a trend every accident is not the result of tortious conduct.
Lastly, counsel for defendant during oral argument of this case stated that no public policy existed. With this statement I disagree. The imposition of liability upon the facts present in the instant case might well deter participation by young Americans in the wholesome and healthy activity provided by neighborhood pickup games. Such activity and participation should be fostered and encouraged rather than thwarted and discouraged. Such activity is specially refreshing in light of today’s permissive society. It is fundamental that the standard of conduct which is the basis of the law of negligence is determined by balancing the risk in the light of the social value of the interest threatened. See Prosper, Torts §31, at 149 (4th ed. 1971); also, the observations of Mr. Justice Schaefer Lance v. Senior (1967), 36 Ill. 2d 516, 224 N.E.2d 231, while obiter dictum, are nevertheless enlightening as to the public policy question.
For the foregoing reasons I cannot concur with the majority view.