“Recklessness” Is the Proper Standard of Care for Injuries Sustained in Connection with Physical Contact Sports.

WDC Journal Edition: Winter 2008
By: Kara M. Burgos - Moen Sheehan Meyer, Ltd.

I. “Recklessness” Is the Proper Standard of Care for Injuries Sustained in Connection with Physical Contact Sports.

In 1995, the legislature enacted section 895.525(4m), Wisconsin Stats., allowing recovery in sports injury cases only for reckless or willful conduct.[i] section imposes civil liability for a participant’s injuries only if the participant who caused the injury acted recklessly or with intent to cause injury:

(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.[ii]

The Legislative Reference Bureau raised the standard of care in Wis. Stat. § 895.525(4m) from mere negligence to “recklessness” in reaction to the Wisconsin Supreme Court’s decision in Lestina v. West Bend Mut. Ins. Co. [iii], [iv]

There, Robert Lestina sustained serious injuries to his leg and knee after defendant Leopold Jerger slide tackled him during an adult recreational soccer league game. The league’s rules clearly stated that slide tackling was illegal during league play. Lestina sued, claiming Jerger’s conduct was both negligent and reckless.[v] Jerger filed a motion for summary judgment. The circuit court denied the motion and the jury returned a unanimous verdict finding Jerger 100 percent causally negligent.[vi]

Jerger appealed, contending that recklessness, not negligence, was the proper legal standard to judge his conduct. He argued that if a court applied the negligence standard, vigorous competition inherent in athletics would diminish.[vii] The court of appeals certified the case to the Supreme Court.

The Court, affirming the lower courts, disagreed with the circuit court’s decision, holding that a negligence standard was the correct standard to apply in such situations:

Depending as it does on all the surrounding circumstances, the negligence standard can subsume all the factors and considerations presented by recreational team contact sports and is sufficiently flexible to permit the “vigorous competition” that the defendant urges. We see no need for the court to adopt a recklessness standard for recreational team contact sports when the negligence standard, properly understood and applied, is sufficient.[viii]

The legislature, following a majority of jurisdictions, deemed recklessness or willful/wanton conduct a more appropriate standard. The adoption of subsection (4m) returns a court’s analysis to prior appellate precedent. The Supreme Court has recently entertained argument on this issue in the context of cheerleading in Noffke ex rel. Swenson v. Bakke.[ix]



II. Cheerleading is a Recreational Activity that Involves Physical Contact Under the Statute.

A. The Court of Appeals Incorrectly Held that Cheerleading is Not a Recreational Activity that Involves Physical Contact Under the Statute.

In Noffke¸ on December 17, 2004, Brittany Noffke, a cheerleader with the Holmen High School cheerleading team, fell and was injured while performing a pre-game warm-up stunt.[x] Kevin Bakke, a team member, participated in the stunt. Noffke sued, among others, Bakke and his parents’ homeowners’ insurer, American Family Mutual Insurance Company.[xi]

Bakke and American Family (“Defendants”) subsequently filed a Motion for Summary Judgment based upon recreational immunity granted amateur athletic participants.[xii] The circuit court found that there were no disputed issues of fact and that it could decide, as a matter of law, whether or not cheerleading fell within the scope of the limitation on liability to reckless conduct.[xiii]

The court determined that the statute, as enacted, does not contain the limitation to contact sports competition referred to in Lestina.[xiv] It further held that the statute is not ambiguous: cheerleading is a recreational team activity that involves physical contact and that, under these circumstances, Bakke was immune absent evidence of reckless conduct. The circuit court therefore granted Defendants’ motion for summary judgment and dismissed the complaint.

Noffke appealed the circuit court’s order. On February 14, 2008, the Court of Appeals, District IV, reversed the circuit court, finding: “Cheerleading is not a contact sport within the meaning of Wis. Stat. §895.525(4m) and, therefore, Noffke may proceed with her negligence claim against Bakke.”[xv]

The phrase “physical contact between persons in a sport” is not self-defining. Plainly, cheerleaders engage in stunts which involve physical contact with other participants, but is any physical contact sufficient under the statute? We conclude that the required “physical contact” is ambiguous. . . .

The title’s use of the term “contact sport” is significant. The term “contact sport” is normally used to describe sports in which opposing players make aggressive and sometimes injury-causing contact, . . .

We acknowledge the obvious. In many ways the risks and the athleticism involved in cheerleading are comparable to those in contact sports. Nonetheless, cheerleading does not fit the commonly accepted meaning of “contact sport.” Specifically, it does not involve physical contact between opponents.[xvi]

The statutory interpretation of sec. 895.525(4m), Stats., as adopted by the Court of Appeals ignored plain statutory language and unambiguous legislative intent. The statute explicitly provides immunity to a participant engaged in a recreational activity that includes physical contact between persons in a sport involving teams in a high school league, who injures another, unless that participant acts intentionally or recklessly. The only issue to be decided by the Supreme Court was the interpretation of the term “physical contact.”

The terms of the statute do not limit it to contact sports. The court of appeals referred to the title of the statute, “Liability of Contact Sports Participants,” as evidence of the legislature’s desire that the statute apply only to physical contact between opponents.[xvii] But the language in the title is not in the statute.


B. The Supreme Court Must Reverse the Court of Appeals’ Decision in Noffke and Correctly Interpret the Meaning of “Physical Contact Between Persons in a Sport” to Include Cheerleading.

The Supreme Court must presume that the language employed in the statute was employed for a reason.[xviii] The legislature could have incorporated the narrower language, “contact sports participants,” into the statute. Instead, it used the broader language “that includes physical contact between persons in a sport.” Broader language of the statute applies, not the narrow language of the Title. This distinction should be given meaning because “. . . the title, while helpful in discerning legislative intent, is not part of the statute and cannot prevail over its language.[xix] “In order to arrive at legislative intent, the Court should construe a subparagraph or its title in isolation, but examine it in light of the entire statute.”[xx]

The Court of Appeals’ decision limits the statute’s application only to contact sports between opponents, such as hockey, football, and boxing. What of baseball, tennis, track and field, volleyball? Are participants in these sports, where there is occasional physical contact at times between players, less deserving of the protections of the statute if their conduct is less than reckless? Limiting the protection of the statute defeats the intent of the statute.

In each case where courts have applied the contact sports exception, physical contact with co-participants or “some physical component of the game” has been “part and parcel of the sport” involved. The inquiry is broader than whether the sport is a contact sport. The inquiry is: “Is physical contact involved?”[xxi] Cheerleading is a sport deserving no lower standard of care than those where opponents engage each other on a field.

To achieve the protections of the statute, it should be sufficient for a participant to show that:

  1. He/she participated in a recreational activity;
  2. The recreational activity included physical contact between persons in a team sport (physical contact was an intrinsic part of the activity); and
  3. His/her conduct was not reckless or done with intent to cause injury.

The evidence before the Supreme Court in Noffke satisfies all three criteria. Bakke was a post/base for Noffke during a pre-game warm-up stunt for the cheerleading team at Holmen High School.[xxii] His actions were misguided based on lack of skill and experience, and Noffke fell. Physical contact was an intrinsic part of the activity, and there was foreseeable risk of harm associated with participation.

Application of the statute is no less relevant because Noffke and Bakke were in pre-game warm-ups. The level of contact between participants practicing and participants competing is no different.[xxiii] Surely the legislature would not insulate a participant from liability during the game but render them liable for the same activity during warm-up.

If the court of appeals’ interpretation of the statute is adopted, the prevailing standard of recklessness applies only to “chosen” sports participants and derails others from free and active participation in their “chosen” sport.[xxiv] The court’s narrow interpretation signals a return to the exact position the legislature sought to change: “. . . recklessness strikes the proper balance between freeing active and vigorous participation in recreational team contact sports from the chilling effect of litigation and providing a right of redress to an athlete injured through the fault of another.”[xxv]

The Supreme Court of Illinois, in Pfister v. Shusta,[xxvi] stated that the rationale for limiting participants’ liability in sports involving contact is the balance between punishing the reckless or willful conduct and chilling unnecessary litigation:

The contact sports exception strikes the appropriate balance between society’s interest in limiting liability for injuries resulting from physical contact inherent in a contact sport and society’s interest in allowing recovery for injuries resulting from willful and wanton or intentional misconduct by participants. 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 co-participants . . . .

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.”[xxvii]

Pfister also noted that a rule limiting the liability of participants in contact sports was necessary to avoid a chilling effect on the way these sports are played. As the court observed, if a court imposed a negligence standard on participants, contact sports would be fundamentally altered or, perhaps, eliminated altogether.[xxviii] Numerous other courts have voiced the same concern and have stated that a primary justification for limiting liability in the sports context is to avoid fundamentally altering, or discouraging participation in, the sport at issue.[xxix]

In addition, several courts have recognized the need for a rule limiting liability in the context of contact sports in order to avoid a flood of litigation. As one court has stated: “If simple negligence were adopted as the standard of care, every punter with whom contact is made, every midfielder high sticked, every basketball player fouled, every batter struck by a pitch, and every hockey player tripped would have the ingredients for a lawsuit if injury resulted . . . [T]here exists the potential for a surfeit of lawsuits when it becomes known that simple negligence, based on an inadvertent violation of a contest rule, will suffice as a ground for recovery for an athletic injury. This should not be encouraged.”[xxx] “The practical effect of applying an ordinary negligence standard would be to open a legal Pandora’s box, allowing virtually every participant in a sport involving contact, injured by another during a ‘warm-up’ or practice, to bring an action based on the risks inherent in virtually every sport involving contact. This is exactly the type of result the courts have sought to avoid.”[xxxi]

And this is exactly the basis upon which the circuit court concluded that Noffke and Bakke were engaged in a sport in which physical contact was inherent. Bakke’s arguably negligent conduct was sufficient to render his acts immune from liability under the statute. The court of appeals’ decision defeats the legislature’s determination to discourage lawsuits based solely on play. The line drawn by the court of appeals adversely restricts the legislature’s goals. This sport is no less physical and inherently dangerous than volleyball or tennis. The level and amount of physical contact in cheerleading is arguably greater. Why is one participant immune and another not? The court of appeal’s decision creates the potential for an influx of undesirable litigation. Whether the Supreme Court will answer the dilemma remains to be seen.


[i] Wis. Stat.§895.525(4m) (2003-2004)

[ii] Wis. Stat. § 895.525(4m)(a).

[iii] See Assembly Bill 628.

[iv] 176 Wis. 2d 901, 401 N.W.2d 28 (1993).

[v] Id. at 904.

[vi] Id.

[vii] Lestina, 176 Wis. 2d at 904.

[viii] 176 Wis. 2d at 913-14.

[ix] 2008 WI App 38, 308 Wis 2d 410, 748 N.W. 2d 195. Attorney Jim Naugler argued the case before the Supreme Court for the defense on October 8, 2008.

[x] Noffke, 2008 WI App 38, ¶¶ 5-6.

[xi] Id., 2008 WI App 38, ¶ 7.

[xii] Wis. Stats. § 895.525(4m).

[xiii] Noffke, 2008 WI App 38, ¶ 7.

[xiv] Lestina, 176 Wis.2d 901.

[xv] 2008 WI App 38, ¶4.

[xvi] 2008 WI App 38, ¶¶ 16-17 (emphasis in original).

[xvii] Id., 2008 WI App 38, ¶ 16. See, also, Gauger v. Mueller, 149 Wis. 2d 737, 740, 439 N.W.2d 637, 638 (Ct. App. 1989). (“We must consider sections related to the statue being examined and presume that the legislature carefully chose its terms to express its meaning.”).

[xviii] In re Incorporation of Portion of Town of Sheboygan, 248 Wis.2d 904, 911, 637 N.W.2d 770, 774 (Wis.App.2001); State v. Black, 188 Wis.2d 639, 651, 526 N.W.2d 132 (1994).

[xix] Id.; Varda v. Gen. Motors Corp., 2001 WI App 89, ¶30, 242 Wis.2d 756, 626 N.W.2d 346. (The court indicated the contact-sports exception would apply to a participant in a paintball “war game,” but the court refused to extend the exception to non-participants.).

[xx] See, i.e., Moore v. Phi Delta Theta Co., 976 S.W.2d 738, 741-42 (Tex. Ct. App. 1998), review denied, 1999 WL 450865 (Tex.1999). (We find the reasoning and views expressed in those majority jurisdictions adopting the views expressed in those majority jurisdictions adopting the views expressed in those majority jurisdictions adopting the contact-sports exception compelling and suitable for application in Iowa. We therefore hold that paintball is a contact sport for which a participant’s liability is determined under a recklessness standard. In games in which physical contact is inherent, indeed, the very purpose of the game as in paintball, rules infractions, and mishaps are virtually inevitable and justify a different standard of care in a child’s game of kick-the-can.)

[xxi] Noffke, 2008 WI App 38, ¶ 6.

[xxii] Nabonzy v. Barnhill, 31 Ill. App. 3d 212, 334 N.E. 2d 258 (1975), cited by Lestina v. West Bend Mutual Insurance Co., 176 Wis. 2d 901, 907, 501 N.W. 2d 28 (1992).

[xxiii] Pfister v. Shusta, 167 Ill.2d 417, 212 Ill Dec. 668, 657 N.E. 2d 1013 (1995).

[xxiv] Id., 167 Ill.2d at 426-27.

[xxv] Id., 167 Ill.2d at 427 (quoting Pfister v. Shusta (“Pfista I”), 256 Ill App 3d 186, 191-92, 194 Ill Dec. 618, 627 N.E. 2d 1260 (1994) (Green, J. dissenting)).

[xxvi] 167 Ill.2d 417, 212 Ill Dec. 668, 657 N.E. 2d 1013 (1995).

[xxvii] 167 Ill 2d at 427, 212 Ill Dec. 668, 657 N.E. 2d 1013, (quoting Pfister I, 256 Ill App 3d 186, 191-92, 194 Ill Dec. 618, 627 N.E. 2d 1260 (1994) (Green, J. dissenting)).

[xxviii] Id.

[xxix] See, e.g., Knight v. Jewett, 3 Cal.4th 296, 318, 834 P.2d 696, 710, 11 Cal. Rptr.2d 2, 16 (1992) (“Vigorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct.”); Ross v. Clouser, (1982 Mo.) 637 S.W.2d 11, 13 (“Fear of civil liability stemming form negligent acts occurring in an athletic event could curtail the proper fervor with which the game should be played and discourage individual participation.”)

[xxx] Jaworski v. Kiernan, 241 Conn. 399, 409-10, 696 A.2d 332, 338 (1997). See also Savino v. Robertson, 273 Ill.App.3d 811, 818, 210 Ill.Dec. 264, 652 N.E.2d 1240 (1995).

[xxxi] Id.