specially concurring:
I agree with the result reached by the majority, and I do not generally quarrel with the majority’s adoption of the standards announced in Knight and Kahn. Nonetheless, I believe the majority goes too far when it holds that, under Knight, participants in full-contact sports may consciously disregard the safety of their coparticipants. I cannot countenance the notion that a participant in any civilized activity may consciously disregard the safety of another without consequence. Furthermore, I believe the majority has not sufficiently explained the scope of liability incurred by youth sport coaches and sporting organizations under Kahn. Therefore, I specially concur in the result reached by the majority but not in its reasoning.
The majority contends that “[i]n full-contact sports such as tackle football, and ice hockey where bodychecking is permitted, a conscious disregard for the safety of the opposing player is an inherent part of the game.” 227 Ill. 2d at 456. Therefore, keeping the Pfister contact sports exception would produce a chilling effect, and “the games of ice hockey and football as we know them would not be played.” 227 Ill. 2d at 457. They further suggest that it would be unfair to defendants playing full-contact sports to hold them liable for conduct inherent in their sport. 227 Ill. 2d at 457. Hence, the majority claims that full-contact sports require a new and different standard of care to address adequately the aggressiveness and physicality involved, namely, Knight’s duty to avoid conduct totally outside the normal range of activity in the sport. 227 Ill. 2d at 459. I, however, disagree.
To begin, I disagree with the conclusion that a conscious disregard for the safety of opposing players is inherent in full-contact sports. The majority supports this conclusion by noting that some risk of injury is involved when one player strikes another, even within the rules of a sport. 227 Ill. 2d at 455. While this is undoubtedly true, proper bodychecking or tackling does not necessarily disregard the opponent’s “safety.” In organized hockey, football, and lacrosse, for example, the rules mandate a wide variety of protective equipment, including helmets and pads, to reduce the risk of injury. Similarly, the rules addressing players’ physical contact are designed to shield sensitive and unprotected areas of the body. Notably, blows to the head are prohibited in all three sports. Moreover, through social disapproval, participants in full-contact sports discourage play likely to cause significant injury. Indeed, to be known as a “cheap shot artist” is a significant source of shame for most participants. Therefore, when participants collide in the normal course of play, both reasonably expect they will get up and continue the game. It is fair to say that even in boxing, the most extreme sports example, both boxers expect to shake hands after the bout with no greater injuries than cuts and bruises despite having forcefully struck each other in the face and midsection.
Further, any risk of injury presented by the kind of physical contact the majority describes is by no means unique to full-contact sports. Defensive basketball players regularly take charges from others driving to the basket with a running start. Basketball players may also collide while pursuing rebounds, sometimes known as “banging under the boards.” Soccer players sometimes miss while attempting to hit the ball with their heads and, instead, slam into the head of an opponent also competing for the ball. In that same sport, devastating knee injuries occur based on ill-timed, sliding tackles from behind. See also Kahn, 31 Cal. 4th at 1003, 75 P.3d at 37, 4 Cal. Rptr. 3d at 112 (“In a game of touch football *** there is an inherent risk that players will collide” (emphasis added)).
Therefore, I fail to see why full-contact sports require any special legal treatment. In fact, contrary to the majority’s conclusion, we previously suggested that the contact sports exception in Pfister would adequately address full-contact sports. The majority even quotes the pertinent portion in its own analysis:
“ ‘Those who participate in soccer, football, softball, basketball, or even a spontaneous game of can kicking, choose to play games in which physical contact among participants is inherent in the conduct of the game. Participants in such games assume a greater risk of injury resulting from the negligent conduct of coparticipants. ***
* * *
*** The contact sports exception allows recovery for injuries resulting from willful and wanton and intentional misconduct while taking into account the voluntary nature of participation in games where physical contact is anticipated and where the risk of injury caused by this contact is inherent.’ ” (Emphases added.) 227 Ill. 2d at 452, quoting Pfister, 167 Ill. 2d at 426-27.
Instead of replacing the willful and wanton standard in full-contact sports, I believe the Knight standard merely further explains willful and wanton behavior and the conscious disregard of a coparticipant’s safety. Pfister also supports this conclusion.
When compared side-by-side, the language in Knight and Pfister is substantively indistinguishable. As the majority points out, Pfister defined willful and wanton conduct “as ‘a course of action which shows actual or deliberate intent to harm or which, if the course of action is not intentional, shows an utter indifference to or conscious disregard for a person’s own safety or the safety or property of others.’ ” 227 Ill. 2d at 455, quoting Pfister, 167 Ill. 2d at 421. Similarly, Knight imposes liability on a contact sport participant where “the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.” (Emphasis added.) Knight, 3 Cal. 4th at 320, 834 P.2d at 711, 11 Cal. Rptr. 2d at 17. See also Kahn, 31 Cal. 4th at 996, 75 P.3d at 32-33, 4 Cal. Rptr. 3d at 106-07 (“A sports instructor may be found to have breached a duty of care to a student or athlete only if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is ‘totally outside the range of the ordinary activity’ *** involved in teaching or coaching the sport” (emphasis added)).
Recklessness, the standard actually used in Knight, is synonymous with willful and wanton and encompasses conscious disregard for the safety of another. As Professor Dobbs explains:
“Courts often recognize a kind of *** category of fault that is distinguishable both from intent and from negligence. This category is called recklessness or willful or wanton misconduct. ***
*** [C]ourts find conduct to be reckless, willful or wanton when two elements concur. First, the conduct must not only create an unreasonable risk of harm to others, it must create a high degree of risk or a risk of very serious harm. Second, the defendant must be conscious of the risk and proceed without concern for the safety of others.” (Emphasis added.) 1 D. Dobbs, Torts §27, at 51 (2001).
In essence, Knight does not create a different standard than Pfister.
I disagree with the majority’s conclusion that adopting the Knight standard heralds a new standard of care permitting participants in full-contact sports to disregard consciously the safety of other participants. Rather, this court should affirm the vitality of Pfister in all contact sports and merely explain its application in full-contact sports. Therefore, I respectfully concur in the majority opinion because, while I agree with the result reached, I cannot agree with its rationale.
I also respectfully seek to clarify the majority’s analysis of the duty properly attributed to youth sports coaches and sporting organizations. The age and experience of the participants must play a role in considering the duty owed by adult coaches and adult-organized sporting organizations. Relying on Kahn, the majority adopts a standard of care to be applied to coaches and sporting organizations without specifically addressing these critical factors.
Although Kahn involved a young, novice sport participant allegedly hurt due to inadequate instruction from her adult, high school coach, the Kahn majority did not expressly consider how a participant’s age and experience would affect the coach’s duty. In fact, the two justices of the California Supreme Court who wrote separately in Kahn criticized the inflexibility of the rule created by the majority as failing to account for the age and skill level of the participants and coaches. In his special concurrence, Justice Werdegar stated his belief that coaches and teachers of minor students should bear “a somewhat greater duty.” Kahn, 31 Cal. 4th at 1019, 75 P.3d at 49, 4 Cal. Rptr. 3d at 126 (Werdegar, J., specially concurring). He further noted:
“When the instructor or coach is a school teacher *** the safety of the minor students will usually be a primary consideration. Society expects — legitimately, in my view— more from instructors and coaches than merely that they will refrain from harming a student intentionally or with wanton disregard for safety. An instructor’s gross or extreme lack of care for student safety is not an inherent risk of school athletics programs.” Kahn, 31 Cal. 4th at 1019-20, 75 P.3d at 49, 4 Cal. Rptr. 3d at 126 (Werdegar, J., specially concurring).
Similarly, Justice Kennard observed in his dissent:
“[T]he majority adopts the same standard for a professional coach of novice teenage athletes that the Knight and Ford plurality found appropriate for participants in active sports. Not taken into account by the majority is the significant difference between the two groups. *** Because student athletes, particularly minors, often consider their coach a mentor or role model, they trust the coach not to carelessly and needlessly expose them to injury.” (Emphases in original.) Kahn, 31 Cal. 4th at 1023, 75 P.3d at 52, 4 Cal. Rptr. 3d at 129-30 (Kennard, J., concurring in part and dissenting in part).
Perhaps to avoid these pitfalls, the majority here cites those portions of the Kahn majority opinion noting the relationship of the parties to each other, and to the sport, in assessing whether a coach or sporting organization has acted totally outside of the range of ordinary coaching or instruction. 227 Ill. 2d at 461-65. Although the majority does not expressly discuss the significant factors of youth and inexperience, this acknowledgment suggests it intends to require a higher standard of care for coaches and organizations with young, inexperienced participants. This higher standard of care will be triggered by the nature of the relationships among these players and their coaches and organizations. The pertinent question in determining whether a coach or organization acted willfully and wantonly will be whether the action of the coaches or the sporting organizations was totally outside of the range of the ordinary coaching, instruction, supervision, or organization of players of a certain age and experience level in a particular sport. With that addition, the Kahn framework as presented by this majority is sufficient. If this is not the majority’s intent, however, it should be. We cannot legitimately ignore younger athletes’ greater physical vulnerability or their limited autonomy from their coaches and sporting organizations in assessing the propriety of their conduct toward their young athletes.
To the extent that the majority departs from this interpretation of the full-contact sports standard in Knight and the application of Kahn in the context of youth sports, I respectfully concur in the majority’s judgment but not in its reasoning.