Play Ball! Wisconsin’s Contact Sports Immunity Statute
Everybody has witnessed, caused, or been the unfortunate recipient of a sports-related injury. Whether occurring in baseball, football, hockey, golf, or any other sport, everybody knows that sports-related injuries are not uncommon.
The purpose of this article is to explore the legal ramifications of a sports-related injury. Specifically, can someone be legally responsible for causing a sports-related injury? Under Wisconsin law, the answer depends on the conduct causing the injury. Wis. Stat. §895.525(4m) provides qualified immunity to individuals participating in contact sports (the “contact sports immunity statute”):
(4m) Liability of contact sports participants.
(a) A participant in a recreational activity that includes physical contact between persons in a sport involving amateur teams, including teams in recreational, municipal, high school and college leagues, may be liable for an injury inflicted on another participant during and as part of that sport in a tort action only if the participant who caused the injury acted recklessly or with intent to cause injury.
Subsection (1) sets forth the legislative purpose for the contact sports immunity statute as follows:
(1) Legislative purpose. The legislature intends by this section to establish the responsibilities of participants in recreational activities in order to decrease uncertainty regarding the legal responsibility for deaths or injuries that result from participation in recreational activities and thereby to help assure the continued availability in this state of enterprises that offer recreational activities to the public.
The contact sports immunity statute was enacted in response to Lestina v. West Bend Mutual Insurance Co.1 There, a personal injury claim was pursued for injuries sustained in a recreational soccer match.2 The Wisconsin Supreme Court applied a negligence standard to govern the conduct of soccer match participants.3 In his dissent, Justice Wilcox opined that liability should exist only if the participant defendant acted in reckless disregard for the safety of the other player, but not for ordinary negligence.4
Subsequently, the legislature enacted legislation that adopted Justice Wilcox’s opinion -- participants in contact sports would be liable for injuries resulting only from recklessness or intent to cause injury.5
The Wisconsin Supreme Court analyzed the contact sports immunity statute in Noffke v. Bakke.6 There, the Court held that a cheerleader’s claim against another cheerleader for injuries sustained while participating in cheerleading was barred pursuant to §895.525(4m) as the defendant cheerleader was not reckless, as a matter of law. The Court set forth the elements that must be proven in order to obtain the benefit of immunity pursuant to §895.525(4m).For immunity to apply, a defendant must demonstrate:
(1) participation in a recreational activity;
(2) the recreational activity must include physical contact between persons;
(3) the persons must be participating in a sport; and
(4) the sport must involve amateur teams.7
The relevant jury instruction provides as follows:
A participant in a recreational athletic activity that includes physical contact is liable for injury caused to another participant during the activity if the participant who caused the injury acted recklessly or with intent to cause injury.
A participant acts with intent to cause injury if he/she engages in conduct with the intent to cause injury by that conduct. An intent to cause injury exists where the participant either means to cause injury by his/her conduct or where an injury is almost certain to follow from this conduct.
A participant acts recklessly if his/her conduct is in reckless disregard of the safety of another. It occurs where a participant engages in conduct under circumstances in which he/ she knows or a reasonable person under the same circumstances would know that the conduct creates a high risk of physical harm to another and he/she proceeds in conscious disregard of or indifference to that risk. Conduct which creates a high risk of physical harm to another is substantially greater than negligent conduct. Mere inadvertence or lack of skill is not reckless conduct.
In considering the conduct involved in this case, you should consider the sport involved; the rules, regulations, customs and practices governing the sport, including the types of contact and the level of violence generally accepted; the risks inherent in the game and those that are outside the realm of anticipation; and the protective equipment worn. You should also consider the age and physical attributes of the participants and their respective skills and knowledge of the rules and customs of the game.
If you find that defendant engaged in conduct and intended to cause injury by that conduct, however great or small, or that defendant’s conduct was almost certain to cause injury in some way, however great or small, then defendant acted with intent to injure.
If you find that defendant engaged in conduct which he knew or a reasonable person under the same circumstances would know created a high risk of physical harm to another, and he proceeded anyway, then defendant acted recklessly.8
The Wisconsin Court of Appeals recently analyzed immunity in the context of an injury sustained during a little league game in Radebaugh v. Wausau Underwriters Ins. Co.9 The issue was whether the contact sports immunity statute immunized the coaches and umpires involved in a little league baseball game from liability to a participant who was injured by a wayward foul ball.10
Dane Radebaugh was injured when he was struck in the head by a line-drive foul ball while he was sitting on an overturned bucket in the dugout area keeping score for a recreational league baseball game at Campus Field in Lake Mills, Wisconsin. During recreational baseball games at Campus Field, it was customary for years for members of the teams participating in the games to keep score on an electronic scoreboard which was operated by a control box near the dugout while sitting on an overturned bucket in the dugout area.11 Consistent with that customary practice, Radebaugh sat on an overturned bucket in front of and to the home plate side of the dugout to operate the scoreboard. Radebaugh was behind a chain link fence in front of the dugout, but, when viewed from home plate, there was no fence between Radebaugh and home plate. While operating the scoreboard, Radebaugh, who was not wearing a helmet, was struck in the head by a line-drive foul ball and sustained serious personal injuries.12
Radebaugh and his parents sued the Lake Mills School District, the Lake Mills Recreational Department, Radebaugh’s coach, the two umpires refereeing the game, and their insurers, alleging negligence.
All defendants moved for summary judgment on grounds that they were immune from liability pursuant to the contact sports immunity statute and, for some defendants, that they were immune pursuant to the governmental immunity statute.13 In granting the motion, the circuit court noted in its written decision the following with respect to the contact sports immunity statute:
• The evidence is that defendants did not know that allowing plaintiff to sit on the 5 gallon pail in the dugout area but outside of the recessed portion of the dugout to keep score created a high risk of physical harm to plaintiff.14
• Up until plaintiff’s injury, the practice of players keeping score on the overturned bucket had been going on for years. This practice had never been questioned by anyone -- players, parents, coaches, umpires, athletic/ recreational employees/directors, observers. This practice had never resulted in an injury; it had never resulted in close to an injury, such that someone might take note of the risk. For these same reasons, a jury could not conclude that a reasonable person under the same circumstances would have known.15
Thus, the circuit court concluded that plaintiff’s claims against the coach and umpires were subject to Wis. Stat. §895.525(4m) and that plaintiff’s claims were barred pursuant to that statute because the coach and umpires were not reckless, as a matter of law. Radebaugh appealed.
The Court of Appeals affirmed. After discussing the applicable jury instruction and the Noffke decision, the court stated as follows:
As in Noffke, the record in this case does not support a claim that the individual defendants were reckless. Like the circuit court, we conclude that the evidence establishes that none of the individual defendants knew, before Radebaugh was struck, that allowing the scorekeeper to sit on a bucket in front of the dugout unprotected by a helmet or by a fence between the scorekeeper and home plate created a high risk of physical harm to the scorekeeper or that the individual defendants consciously disregarded that risk. Scorekeeping in that manner and location was a routine practice for years. While they were aware that there was a possibility that the scorekeeper could be struck by a line-drive foul ball, there is no evidence that anyone had seen a ball hit in that location or seen a player in that location struck by a ball. And, there is no evidence of any complaints or recommendations for change. Coach Yandre testified that he had never thought about recommending that the fencing continue around that end of the dugout area, and that it was so common for players to operate the scoreboard there that he did not focus on it. Meyers testified that he had never seen a ball hit in the area around the scorekeeper and never anticipated anyone being possibly hit there, and was not concerned because the practice was within the rules and the player was out of play. Burrow testified that he had never seen anyone in that area get hurt and so had never thought about it. We cannot reasonably infer from these facts that the individual defendants consciously disregarded a high risk of harm to Radebaugh.16
Thus, pursuant to Wis. Stat. §895.525(4m) and appellate decisions interpreting and applying the contact sports immunity statute to sports-related injuries, a claimant pursuing a claim for a sports-related injury must be able to demonstrate reckless conduct; that is, that the defendant recklessly disregarded the safety of the claimant in causing the injury. The Noffke and Radebaugh decisions demonstrate that the courts will dismiss claims lacking evidence of recklessness. Those holdings are consistent with the legislative purpose for enacting the contact sports immunity statute -- to establish the responsibilities of participants in recreational activities in order to decrease uncertainty regarding the legal responsibility for deaths or injuries that result from participation in recreational activities and to help assure the continued availability in this state of enterprises that offer recreational activities to the public.
That said, there remain a number of questions about the applicability of Wis. Stat. §895.525(4m). Specifically, what impact will Wis. Stat.§895.525(4m) have on injury-causing conduct that falls within the custom or accepted violence of a given sport. For example, is a hockey player immune from liability if the injury causing conduct was subject to penalty or ejection from the game? What about injuries sustained from a hockey fight? What about a football player penalized or ejected for hitting a defenseless receiver? What about a pitcher that beans a batter in a baseball game? While participants in those sports may agree that such conduct falls within the custom and accepted violence of the sport, it remains to be seen whether such conduct is immunized under Wis. Stat. §895.525(4m), the contact sports immunity statute. Regardless, to recover for a sports-related injury, a claimant must be able to meet a higher burden than ordinary negligence -- there must be evidence of reckless conduct.
James Murray is a Shareholder in the Litigation and Risk Management Practice Group. He has tried over 150 cases to verdict, including drug and medical device, commercial fraud, product liability and insurance bad faith cases.
He is recognized in The Best Lawyers in America® in Commercial Litigation, Construction Litigation, Insurance Law, Personal Injury Litigation and Product Liability Litigation - Defendants. He is recognized by Wisconsin Super Lawyers® as one of the Top 10 Attorneys in Wisconsin. He was awarded an AV Preeminent® Peer Review Rating by Martindale-Hubbell®, the highest rating possible.
James is a Fellow of the American College of Trial Lawyers (Wisconsin Chair, 2006-2007; Regent, 2012-2016) and a member of the American Board of Trial Advocates (President, Wisconsin Chapter, 2002), the Wisconsin Defense Counsel (President, 1988-1989) and the Defense Research Institute.
Kevin Fetherston is a member of the firm’s Litigation and Risk Management Practice Group. He focuses his practice on general tort litigation, business and 13 commercial litigation, and professional liability litigation. Kevin has extensive experience litigating complex cases and appeals in both state and federal courts.
Kevin is recognized as a Rising StarSM (2015-2017) by Wisconsin Super Lawyers® in General Litigation.
He is a member of the State Bar of Wisconsin and the Milwaukee Young Lawyers Association.
1 176 Wis.2d 901, 501 N.W.2d 28 (1993).
2 Lestina, 176 Wis.2d at 904-905.
3 Id. at 903.
4 Id. at 919.
5 See Wis. Stat. § 895.525(4m).
6 2009 WI 10, 315 Wis.2d 350, 760 N.W.2d 156.
7 Noffke, 315 Wis.2d 350, ¶16.
8 WIS JI – Civil 2020.
9 Radebaugh v. Wausau Underwriters Ins. Co., 2018 WI App 8, 379 Wis. 2d 767, 909 N.W.2d 210 (Ct. App. Dec. 7, 2017)(unpublished).
10 Id. at ¶¶ 6-11.
13 Id. at ¶ 3.
14 Id. at ¶ 34.