Karas v. Strevell (369 Ill. App. 3d 884, 2006)

JUSTICE O’MALLEY

delivered the opinion of the court:

Plaintiff, Robert Karas (on behalf of his minor son, Benjamin Karas), appeals the trial court’s dismissal, pursuant to section 2 — 615 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 615 (West 2004)), of his complaint, seeking recovery for an injury to his son, against defendants, Joseph Strevell, Russell Zimmerman, Naperville Central Redhawk Hockey Association (NCRHA), Amateur Hockey Association of Illinois, Inc. (AHAI), and Illinois Hockey Officials Association, Inc. (IHOA).

Plaintiff filed his second amended complaint against defendants on September 14, 2004, and we draw the facts of the case from the allegations stated therein. On January 25, 2004, Benjamin played in an organized hockey contest against NCRHA’s junior varsity hockey team, which included defendants Strevell and Zimmerman. NCRHA was a member of AHAI, which promulgated and disseminated hockey contest rules, including a prohibition against checking from behind. At all times relevant to the complaint, the backs of all game jerseys for players on both teams had sewn above or between the players’ numbers “the warning ‘STOP’ to reinforce the prohibition” against checking from behind. During the January 25 contest, Strevell and Zimmerman checked Benjamin from behind while he was near the boards that formed the wall of the playing rink and while he was partially bent over and looking down with his head pointing toward the boards. The collision caused Benjamin’s head to strike the boards and resulted in his serious injury.

During the relevant time period, NCRHA was responsible for coaching and teaching its players to abide by all hockey contest rules. On and before January 25, NCRHA failed to instruct its players to refrain from checking from behind and failed to discipline or sanction players who were known to check from behind. AHAI failed to instruct its member teams to prevent its players from checking opposing players from behind, failed to instruct officials to strictly enforce the prohibition against checking from behind, and failed to discipline or sanction players and teams known to engage in checking from behind. AHAI also failed to discipline, sanction, or control IHOA’s “known and repeated” failures to enforce strictly the prohibition against checking from behind. Likewise, IHOA failed to instruct its member officials to strictly enforce the prohibition against checking from behind and failed to discipline or sanction officials for their known failure to strictly enforce the prohibition against checking from behind.

The first count of plaintiffs second amended complaint sought damages against Strevell and Zimmerman for willful and wanton conduct causing Benjamin’s injury. Counts II, IV and VI sought damages against NCRHA, AHAI, and IHOA for their negligence in connection with Benjamin’s injury. Counts III, V, and VII sought damages against NCRHA, AHAI, and IHOA for their willful and wanton conduct leading to Benjamin’s injury. Count VIII of the second amended complaint alleged a civil conspiracy between AHAI and IHOA that led to Benjamin’s injury.

Defendants filed motions to dismiss pursuant to section 2 — 615 of the Code, and the trial court dismissed the first count on March 14, 2005, and dismissed counts II through VII on July 1, 2005. The trial court granted plaintiff leave to replead count VIII to allege civil conspiracy with more specificity, and plaintiff thereafter filed a third amended complaint, which amended the final count and listed each of the dismissed counts with a statement that each had been dismissed. The third amended complaint charged civil conspiracy as follows, in pertinent part:

“12. Prior to January 25, 2004, [AHAI] had made changes to its ‘checking from behind rule’ as a result of severe injuries sustained by *** players ***. Materially, the rule was changed such that the penalty for an infraction of the rule was increased to an ejection of the violating player and a 3 game suspension.

13. Prior to January 25, 200[4], but after the aforementioned change of the rule, [IHOA] willfully failed to call the checking from behind penalty during AHAI sanctioned hockey contests on more than one occasion because [IHOA] *** believed *** that the resultant penalty as set forth in the modified rule was too harsh.

14. Thereafter, but prior to January 25, 2004, because [IHOA] willfully refused to call players for violating the checking from behind rule on more than one occasion, [AHAI] agreed to reduce the penalty *** ostensibly in order to promote [IHOA] to call all violations of the rule.

16. On and before January 25, 2004, [AHAI and IHOA] *** agreed to not enforce the aforesaid checking from behind rule during games that occurred under the authority of the rule of [AHAI].”

On November 7, 2005, the trial court dismissed the final count of plaintiffs complaint. Plaintiff timely appeals.

A section 2 — 615 motion to dismiss attacks the legal sufficiency of the complaint. Willmschen v. Trinity Lakes Improvement Ass’n, 362 Ill. App. 3d 546, 549 (2005). Illinois is a fact-pleading jurisdiction that requires a plaintiff to present a legally and factually sufficient complaint, and the plaintiff must allege sufficient facts to state all of the elements of the asserted cause of action. Purmal v. Robert N. Wadington & Associates, 354 Ill. App. 3d 715, 720 (2004). Thus, “[t]he question to be decided when ruling on a section 2 — 615 motion to dismiss is whether the plaintiff has alleged sufficient facts which, if proved, would entitle the plaintiff to relief.” Doe v. Chicago Board of Education, 339 Ill. App. 3d 848, 853 (2003). “In reviewing the sufficiency of the complaint, the court must accept as true all well-pleaded facts in the complaint and all reasonable inferences that can be drawn from those facts.” Willmschen, 362 Ill. App. 3d at 549. “However, conclusions of law and conclusory factual allegations not supported by allegations of specific facts are not deemed admitted.” Purmal, 354 Ill. App. 3d at 720. The sufficiency of a complaint presents a question of law, which receives de novo review. Doe, 339 Ill. App. 3d at 853. Because all of plaintiffs arguments challenge only the trial court’s conclusions that each of the counts of his complaint was legally insufficient, our review of all issues in this case is de novo.

Plaintiff first argues that the trial court erred in dismissing the first count of his complaint, because he alleged sufficient facts to state a cause of action against Strevell and Zimmerman. We agree.

There is no separate tort of willful and wanton conduct. Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 274 (1994). Normally, a person owes a duty of ordinary care to guard against injuries to others that may result as a reasonably probable and foreseeable consequence of negligent conduct. Pfister v. Shusta, 167 Ill. 2d 417, 420 (1995). A claim sounding in negligence thus arises where a plaintiff alleges “the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach.” Ward v. K mart Corp., 136 Ill. 2d 132, 140 (1990). However, under a judicially created exception to the standard of ordinary care, voluntary participants in contact sports are not liable for injuries caused by simple negligent conduct. Pfister, 167 Ill. 2d at 420 (reaffirming holdings of previous appellate court cases creating and applying the rule). Instead, they owe each other a duty to refrain only from willful and wanton or intentional misconduct, and they are liable for injuries resulting from a breach of that limited duty. Pfister, 167 Ill. 2d at 420-21.

The label of willful and wanton conduct has developed in Illinois to describe a hybrid between acts considered negligent and behavior found to be intentionally tortious. Ziarko, 161 Ill. 2d at 275. Willful and wanton conduct includes acts performed intentionally, but, unlike intentionally tortious behavior, willful and wanton conduct may also be proven where the acts have been less than intentional. Ziarko, 161 Ill. 2d at 274. At the other end of the continuum between intentional and negligent conduct, it has been acknowledged that willful and wanton conduct shares some characteristics with negligent conduct and that there is a “thin line” between simple negligence and willful and wanton acts. Ziarko, 161 Ill. 2d at 275, citing Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill. 2d 429, 451 (1992), and Mattyasovszky v. West Towns Bus Co., 61 Ill. 2d 31, 35 (1975). Thus, willful and wanton conduct “ ‘is generally considered in that area of fault between ordinary negligence and actual malice.’ ” Ziarko, 161 Ill. 2d at 275, quoting Myers v. Krajefska, 8 Ill. 2d 322, 329 (1956). In view of the fact that willful and wanton conduct is a matter of degree, “a hard and thin line definition [of the term] should not be attempted.” Myers, 8 Ill. 2d at 329.

Willful and wanton conduct may be found where an act was done with intent or “with a conscious disregard or indifference for the consequences when the known safety of other persons was involved.” Myers, 8 Ill. 2d at 329. Put another way, as it is now commonly stated, to plead a cause of action that requires an allegation of willful and wanton conduct, a plaintiff must allege that the defendant held either an “intention to harm” or “an utter indifference to or conscious disregard for [his] welfare” (e.g., Doe v. Chicago Board of Education, 213 Ill. 2d 19, 28 (2004); Adkins v. Sarah Bush Lincoln Health Center, 129 Ill. 2d 497, 518 (1989)) and that he suffered an injury as a result of that willful and wanton conduct.

Whether willful and wanton conduct has been committed in any given case requires close scrutiny of the facts as disclosed by the evidence. O’Brien v. Township High School District 214, 83 Ill. 2d 462, 469 (1980), citing Lynch v. Board of Education, 82 Ill. 2d 415, 430 (1980), quoting Myers, 8 Ill. 2d at 329. However, in ruling on a section 2 — 615 motion, a court must first decide as a matter of law whether a plaintiff has alleged sufficient facts such that a jury question is created concerning the willful and wanton nature of the defendant’s conduct. Doe v. Calumet City, 161 Ill. 2d 374, 390 (1994), overruled on other grounds, In re Chicago Flood Litigation, 176 Ill. 2d 179 (1997). That said, our supreme court has noted that, given the “necessity to closely scrutinize the facts of each case, [a] plaintiff should be allowed to present evidence in support of his allegations of willful and wanton misconduct.” O’Brien, 83 Ill. 2d at 469. Thus, though a complaint alleging willful and wanton conduct should be dismissed where it does not state sufficient facts to meet the standard, given the factual and amorphous nature of the definition of the term, courts should dismiss such complaints sparingly in order to effect the policy of determining the presence of willfulness and wantonness based on the evidence and not the pleadings.

Before addressing whether plaintiff’s allegations met the above standard, we must first clarify precisely what plaintiff alleged. All the defendants at various points in their briefs and at oral argument oversimplify plaintiffs allegations by characterizing the alleged actions as merely “checking,” “checking from behind,” or simple rule violations. For example, Zimmerman states that “plaintiff alleges that [Benjamin] was injured when he was checked from behind during a hockey game.” He points out that actions “within the participants’ ordinary expectations, such as ‘checking in hockey,’ cannot sustain a cause of action” and that “routine rule violations are common occurrences during game play.” Strevell states, “the trial court found that checking from behind was a recognized risk by ice hockey participants” and that “[p]laintiff argued to the trial court that committing a recognized penalty in a hockey game met the standard for willful and wanton conduct.” Likewise, the remaining defendants argue that it should not “be the public policy of this State to allow contact sports participants to file individual lawsuits against their opponents simply on a theory that they suffered injury as a result of a violation of the rules of the sport.” However, plaintiff has alleged more. Plaintiff alleged not only that Strevell and Zimmerman checked Benjamin from behind in violation of the rules, but also that they did so while he was bent over next to the boards, with his head pointing toward the boards, and that they did so despite the fact that a “STOP” warning was displayed on the back of every player’s jersey.

Strevell and Zimmerman rely on their mischaracterizations of plaintiffs allegations for one of their primary arguments in favor of affirmance: allowing plaintiff’s complaint to move forward would expose sports participants to liability in any instance in which their negligent violation of the rules (by committing a foul or a penalty) causes injury. This argument, which the player defendants recite repeatedly throughout their briefs, is a distraction from the real issue. Plaintiff does not allege a mere rules violation, and, indeed, plaintiff agrees that imposing liability for negligent rules violations in sporting contests would be absurd. Instead, plaintiff alleges that Strevell’s and Zimmerman’s actions were not only violations of the rules, but, given Benjamin’s vulnerable position and the “STOP” warnings on players’ jerseys, that they went beyond conduct ordinarily accepted during the course of competition and into willful and wanton conduct. When the player defendants argue that plaintiffs position would result in liability for negligence during the course of play, they presuppose that plaintiff has not alleged willful and wanton conduct. Thus, the player defendants’ argument overlooks the essential question here. For that reason, we reject as hyperbolic slippery-slope rhetoric the player defendants’ protestations that allowing plaintiff’s complaint to go forward will allow “every hockey participant who [is] injured during a game when a penalty [is] committed [to] sue another player for injuries,” and we move to consider whether plaintiff has alleged willful and wanton conduct.

We conclude that the factual allegations above meet the requirements for pleading a cause of action based on willful and wanton conduct. Plaintiff alleged not only that Strevell and Zimmerman broke the rules of hockey, but that they broke a rule of such special emphasis that players’ jerseys were altered to reinforce it. Plaintiff also alleged circumstances surrounding Strevell’s and Zimmerman’s actions — they allegedly checked Benjamin when he was defenseless and in a position of acute vulnerability — that evince a conscious disregard for his safety. These allegations taken as true create an inference that Strevell’s and Zimmerman’s actions exceeded those acceptable during the excitement of play and were so reckless that they were likely to cause, and indeed did cause, injury to another. Therefore, we conclude that the first count of plaintiff’s complaint should be reinstated so that he has an opportunity to prove the truth of the allegations.

That said, the complaint notably does not say where the hockey puck was at the time the player defendants struck Benjamin. The location of the puck and, perhaps relatedly, what Benjamin and the player defendants were attempting to do at the moment of impact are all matters yet to be fleshed out by evidence, and those matters might well be relevant to Strevell’s and Zimmerman’s states of mind at the time they struck Benjamin. It is quite possible that, once all the circumstances surrounding this incident are revealed, the inference of willful and wanton conduct will disappear. However, on the bare facts pled here, we can, and therefore must, infer willful and wanton conduct.

In reaching our conclusion, we reject several arguments from the player defendants. Zimmerman argues that Illinois law recognizes a margin of error for conduct occurring during the excitement of play, and that, given the physical nature of hockey in particular (see McKichan v. St. Louis Hockey Club, L.P., 967 S.W.2d 209, 212-13 (Mo. App. 1998)), Zimmerman’s and Strevell’s conduct should be considered leniently. Zimmerman contends that, though the player defendants’ conduct might be considered tortious in most other contexts, “such conduct is widely accepted, and, in fact, encouraged” in the sport of hockey. We note that plaintiffs allegation that the player defendants’ conduct violated the rules belies Zimmerman’s assertion that such conduct is openly “encouraged.” However, wording aside, the gravamen of Zimmerman’s argument is that, in the excitement of play, “[i]n order to gain possession of the puck or slow down the progress of opponents, hockey players routinely hit each other with body checks or slash at each other with their sticks.”

We agree with Zimmerman that Illinois law recognizes an increased margin of error for conduct undertaken in the excitement of play in a contact sport. For example, in Pfister, four college students improvised opposing goals against the walls of a dormitory lobby and began a spontaneous game of kicking an aluminum soda can toward the opposing team’s goal. Pfister, 167 Ill. 2d at 419. During the game, the plaintiff allegedly pushed the defendant toward a wall in an attempt to gain control of the can, and the defendant allegedly responded by pushing the plaintiff and causing him to fall. Pfister, 167 Ill. 2d at 419. While attempting to break his fall, the plaintiff put his left hand and forearm through the glass door of a wall fire extinguisher case and sustained injuries to his hand and forearm. Pfister, 167 Ill. 2d at 419. The trial court granted the defendant’s motion for summary judgment on the grounds that the activity at issue fell within the contact sports exception to the ordinary duty of care and that the plaintiff had not alleged willful and wanton conduct. Pfister, 167 Ill. 2d at 420. The supreme court affirmed the trial court, because the plaintiff did not allege, and the facts did not establish, either willful and wanton or intentional misconduct by the defendant. Pfister, 167 Ill. 2d at 420.

We also agree with Zimmerman that conduct may violate the rules of competition but nevertheless be generally accepted by the relevant community, and we agree that, if the conduct is generally accepted, it should not form the basis for liability. Indeed, if the conduct were generally accepted, it would fall within the scope of the contact sports exception {i.e., it would amount to acceptable negligence or would breach no duty at all), which, as discussed more fully below, is partially based on the idea that participants consent to the risks associated with the competition they enter. See Pfister, 167 Ill. 2d at 425 (“Participants in team sports *** assume greater risks of injury than nonparticipants’ ’); Savino v. Robertson, 273 Ill. App. 3d 811, 817 (1995) (“plaintiff knowingly and voluntarily assume[d] the risks inherent [in playing the game of hockey]”).

However, the inference from the factual allegations of the complaint is that the conduct in this case does not enjoy such wide acceptance. Plaintiff alleged that the relevant organizing bodies went so far as to display warnings on the players’ uniforms in order to forestall checking from behind, and plaintiff alleged that Strevell and Zimmerman committed their illegal checks under circumstances that they should have understood to create a substantial risk of harm to the opponent. Thus, while we agree with Zimmerman that the player defendants should receive extra lenience given the physical nature of the game of hockey, we conclude that plaintiff has adequately pled Strevell’s and Zimmerman’s conduct as being willful and wanton even in the context of a hockey game.

As a side note, we observe that plaintiff objects to Zimmerman’s references to the severity of the risk participants assume when they play hockey {i.e., the victim’s state of mind), because he asserts the proper focus to be on the willfulness and wantonness of the defendant’s conduct (i.e., the defendant’s state of mind). However, willfulness and wantonness must derive their meaning from the context of the game played. Conduct, such as checking another player, that would almost certainly be willful and wanton if undertaken during a softball game becomes acceptable if undertaken during a hockey game, and thus creates no inference of an antecedent appreciation of an unusual risk of injury for the opponent. Likewise, conduct, such as punching another participant, that would likely be willful and wanton during the course of play in football would be expected in a boxing match. The severity of the risk associated with playing a sport not only helps determine the scope of the contact sports exception (i.e., negligent or acceptable conduct a plaintiff could not use as a basis for liability), but also gives context to a defendant’s actions and thus his or her state of mind in committing allegedly injurious acts. Put another way, the rougher the game, the larger the contact sports exception for negligence (and the higher the proverbial bar for conduct to exceed acceptable behavior and become willful and wanton), and the weaker the inference that a particular instance of rough play was a result of a willful and wanton state of mind. Thus, though plaintiff is correct that the focus is on whether Strevell’s and Zimmerman’s acts were willful and wanton, the risks associated with hockey are relevant to that inquiry for their bearing on Strevell’s and Zimmerman’s states of mind.

In another argument, Strevell asserts that “players possess actual or constructive notice of the substantial risk of injury from checking from behind, since [hockey has] rules against checking from behind.” First, as noted above, we reject defendants’ characterization of plaintiffs complaint as alleging only that Benjamin was checked from behind. Second, as noted above, plaintiff alleges conduct here that fell outside the scope of any notice of risk Benjamin would have appreciated. A competitor likely should not expect to be struck from behind while bent over with his head in a precarious position under the circumstances alleged in plaintiffs complaint. Third, we reject Strevell’s position as absurd. Strevell essentially argues that, so long as there is a rule against specified conduct, participants have notice that the conduct might occur, and, therefore, such conduct cannot form the basis of liability. Strevell proposes, then, that a player be immunized from tort liability so long as he breaks the rules of the competition in which he engages. The proper inquiry looks not at whether the alleged act violated the rules of the sport, but whether it was willful and wanton, regardless of whether the rules prohibited it.

Strevell argues that three “factually on point” cases dictate dismissal of plaintiffs claim. However, each of the three cases is readily distinguishable, because each case involves injuries sustained as a result of conduct normally undertaken in the game at issue and not as a result of allegedly willful and wanton conduct. In Azzano v. Catholic Bishop, 304 Ill. App. 3d 713 (1999), the appellate court affirmed the trial court’s granting of summary judgment in favor of a defendant who injured the plaintiff by knocking him to the ground during a game of “killerball,” a team contest resembling a kind of tackle keep-away. In Savino, the appellate court rejected a plaintiff’s proposed distinction between pre-game and in-game activities and held that the plaintiff was required to and failed to allege willful and wanton conduct where the defendant accidentally hit the plaintiff in the eye with a puck while firing a warmup shot at a nearby goal. Savino, 273 Ill. App. 3d at 813-17. Likewise, in Keller v. Mols, 156 Ill. App. 3d 235 (1987), the appellate court affirmed the trial court’s summary judgment finding that there was no proof of willful and wanton conduct where the defendant accidentally hit the plaintiff in the eye when he shot a plastic puck during a game of street hockey. Here, by contrast, plaintiff alleges not that Benjamin was injured as a result of normal game play, but rather by the player defendants’ extraordinary acts of checking him from behind while he was partially bent over with his head pointed toward the nearby boards.

Strevell also relies on Ward v. Community School District No. 220, 243 Ill. App. 3d 968 (1993), in urging a contrary result. In Ward, the plaintiff was sitting on the sideline watching a flag football game during a physical education class. The field he was sitting by was situated end-to-end with another school’s football field. Ward, 243 Ill. App. 3d at 970. As he watched the game, a participant in a game in the adjacent field ran into and severely injured the plaintiff as the participant was attempting to catch a pass. Ward, 243 Ill. App. 3d at 970. The plaintiff sued the schools and the school district for willful and wanton conduct in placing the two fields so closely together, without warning or protecting students from the potential dangers that could result from the field placement. Ward, 243 Ill. App. 3d at 970-71. The appellate court held that, though the defendants exposed children to a risk that could be found unreasonable, the alleged conduct was not of the degree necessary to state a cause of action for willful and wanton conduct. Ward, 243 Ill. App. 3d at 976.

Ward, like the other cases upon which Strevell relies, is readily distinguishable from the current case. Here, plaintiff alleges that Strevell and Zimmerman approached him under circumstances that create an inference that they fully appreciated the risk and possibility of injury to Benjamin and proceeded to check him from behind while his head was in a vulnerable position. This is not a case of an entity disregarding an abstract possibility of risk but, rather, of two defendants allegedly disregarding an immediate and readily ascertainable risk. The facts here give rise to a much stronger inference of willfulness and wantonness than do the facts in Ward.

Taking plaintiffs allegations as true and drawing all reasonable inferences therefrom in favor of plaintiff, we conclude that plaintiff has alleged sufficient facts to support a claim that Strevell’s and Zimmerman’s willful and wanton conduct caused Benjamin’s injury, and we therefore hold that the trial court erred in dismissing the first count of plaintiffs second amended complaint.

Plaintiff second argues that the trial court erred in dismissing counts II, iy and VI of his second amended complaint, which alleged negligence against NCRHA, AHAI, and IHOA, on the basis that those organizations did not owe plaintiff a normal duty of reasonable care. The trial court reached this ruling by relying on the organizational defendants’ argument that the contact sports exception to the general duty rule should apply not only to protect sports participants, but also sports organizers. Plaintiff again asserts on appeal that the organizational defendants owed him a general duty of care, and the organizational defendants again rebut this assertion by arguing that the contact sports exception precludes such a duty. We must therefore examine the rationales underlying the contact sports exception to determine if it should be extended beyond its currently understood scope. While we agree with the organizational defendants that the exception extends to organizers, we agree with plaintiff that the counts of negligence against the organizational defendants should not have been dismissed on that basis in this case.

The contact sports exception was first announced in Illinois in Nabozny v. Barnhill, 31 Ill. App. 3d 212 (1975), wherein the court formulated the policy based on the following considerations:

“This court believes that the law should not place unreasonable burdens on the free and vigorous participation in sports by our youth. However, we also believe that organized, athletic competition does not exist in a vacuum. Rather, some of the restraints of civilization must accompany every athlete [onto] the playing field.

For these reasons, this court believes that when athletes are engaged in an athletic competition *** a player is *** charged with a legal duty to every other player on the field to refrain from conduct proscribed by a safety rule. A reckless disregard for the safety of other players cannot be excused.” Nabozny, 31 Ill. App. 3d at 215.

Since Nabozny, Illinois courts have revisited the contact sports exception several times, expanding it to include unorganized, informal, and spontaneous sports activities and games. Azzano, 304 Ill. App. 3d at 716-17, citing Pfister, 167 Ill. 2d 417, Landrum v. Gonzalez, 257 Ill. App. 3d 942 (1994), and Keller, 156 Ill. App. 3d 235. The controlling question in determining whether a participant may maintain a negligence action against his or her opponent for causing an injury is whether the participants were engaged in a contact sport. Azzano, 304 Ill. App. 3d at 717. If the participants were engaged in a contact sport, they are liable to each other only for injuries that occurred as a result of willful or wanton conduct. Pfister, 167 Ill. 2d at 420; see also Zurla v. Hydel, 289 Ill. App. 3d 215, 221 (1997), quoting Thompson v. McNeill, 53 Ohio St. 3d 102, 106, 559 N.E.2d 705, 709 (1990) (rejecting the Illinois formulation of a contact sports exception because “ £[t]he *** distinction does not sufficiently take into account that we are dealing with a spectrum of duties and risks rather than an either-or distinction’ ”).

Tangentially, we dispute the notion from Thompson that the Illinois contact sports exception is not sufficiently flexible to the circumstances presented. As implied above, the Illinois contact sports exception does allow a court to take into account “a spectrum of duties and risks”: though the contact sports exception either bars actions for negligence or does not, the scope of protected acceptable or negligent conduct (as opposed to willful and wanton conduct) depends on the risks associated with the sport played, and, as discussed below, it applies to risks inherent in play of the relevant game. Hockey players engage in a rougher sport, and thus owe one another generally lesser duties of care, than do baseball players. Just as duty varies with the situation presented, so too does the scope of the contact sports exception.

Though no court has expressly said so, the legal basis for the contact sports exception in Illinois appears to derive in significant part from the principles supporting the implied assumption of the risk doctrine. Assumption of risk exists to bar liability for negligent acts where a plaintiff assumes known risks inherent in a particular activity or situation. Sullivan-Coughlin v. Palos Country Club, Inc., 349 Ill. App. 3d 553, 560 (2004). In non-strict-liability negligence actions in Illinois, implied assumption of the risk as a defense is confined to situations where the defendant and the plaintiff have a contractual or employee-employer relationship. Court v. Grzelinkski, 72 Ill. 2d 141 (1978). This policy is apparently based on the idea that the “intrinsic merits” of the doctrine do not warrant its wide application, because it is duplicative of and often confused with contributory negligence or lack of duty. See Barrett v. Fritz, 42 Ill. 2d 529, 534-37 (1969) (affirming limitations on applying the doctrine based on criticism of the doctrine). We do not propose to overrule the long-standing limitation on assumption of the risk under Illinois law; indeed, we are without authority to do so (see Wreglesworth v. Artco, Inc., 316 Ill. App. 3d 1023, 1030 (2000) (“We are bound by the principle of stare decisis and must adhere to the decisions of our supreme court”)). Rather, we examine the doctrine as it elucidates the logical bases of the contact sports exception so that we may determine if the bases for the exception justify its extension to the organizational defendants in this case, or, put another way, whether the policy arguments in favor of the contact sports exception justify a holding that sports coaches and organizers owe no duty to protect players from negligence (or other dangers) inherent in the relevant sport.

Several courts applying or extending the contact sports exception have done so based on the idea that the plaintiff assumed certain risks associated with the activity that led to his or her injury. For example, in Azzano, the appellate court determined that “killerball” was a contact sport; it noted that “a certain amount of physical contact was inevitable in the game of killerball and *** the parties voluntarily assented to the contact by participating.” Azzano, 304 Ill. App. 3d at 717. The court also discussed the policy underpinnings of the contact sports exception as follows:

“It is unlikely that the supreme court [in Pfister] was concerned with promoting free and vigorous participation in sports or in the development of discipline and self control [, the two policy rationales cited by the court in Nabozny,] when it applied the contact sports exception to a spontaneous game of kick the can in a college dormitory lobby. Rather, the supreme court made it clear that the public policy underlying the contact sports exception today is the need to strike a balance between protecting participants in sporting activi-

Indeed, in Pfister, the supreme court affirmed the contact sports exception by noting that “[participants in team sports, where physical contact among participants is inherent and virtually inevitable, assume greater risks of injury than nonparticipants or participants in noncontact sports.” Pfister, 167 Ill. 2d at 425.

In Savino, the appellate court rejected a distinction between pregame and in-game activities in applying the contact sports exception. Savino, 273 Ill. App. 3d 811. The court first discussed a New York case applying assumption of the risk and consent principles to determine liability for an injury incurred during warm-up activities. Savino, 273 Ill. App. 3d at 816, discussing O’Neill v. Daniels, 523 N.Y.S.2d 264, 135 A.D.2d 1076 (N.Y. App. Div. 1987). The court then offered a brief discussion of the effect of the assumption of the risk doctrine under Illinois law (Savino, 273 Ill. App. 3d at 816-17) before holding that the plaintiff “was no less a participant in a team sport merely because he was engaged in warm-up activities at the time of his injury.”

Likewise, in Novak v. Virene, 224 Ill. App. 3d 317, 321 (1991), the appellate court noted that “[mjany activities in life are fraught with danger, and absent a specific assumption of the risk, one may obtain damages when injured by another’s negligence.” However, the court held that downhill skiing was not a contact sport because, by skiing, “one does not voluntarily submit to bodily contact with other skiers, and such contact is not inevitable.” Novak, 224 Ill. App. 3d at 321.

In another case, Sullivan-Coughlin, the appellate court discussed the implied assumption of the risk doctrine in connection with a plaintiff golfer’s action for negligence where she was struck by the defendant’s errant golf ball. Sullivan-Coughlin, 349 Ill. App. 3d at 560. Though it did not discuss the applicability of the contact sports exception, the court held that implied assumption of the risk was inapplicable there because “ ‘golf is simply not the type of game in which participants are inherently, inevitably or customarily struck by the ball.’ ” Sullivan-Coughlin, 349 Ill. App. 3d at 560, quoting Zurla, 289 Ill. App. 3d at 221. Zurla, the case upon which Sullivan-Coughlin relied, examined the contact sports exception before holding that “golf is not properly characterized as a ‘contact sport’ for purposes of the Nabozny rule.” Zurla, 289 Ill. App. 3d at 222. These two cases in combination, along with the other cases considering the contact sports exception, further support the idea that courts turn to assumption of the risk principles in defining the reach of the contact sports exception.

We do note at least one case involving the contact sports exception, Landrum v. Gonzalez, that at first glance appears to militate against our conclusion that the exception is based on assumption of the risk principles. Normally, in order to be a complete bar to negligence liability, assumption of the risk requires the plaintiff’s subjective appreciation of the risk he or she is said to assume. Duffy v. Midlothian Country Club, 135 Ill. App. 3d 429, 433-36 (1985) (without considering contact sports exception, applying assumption of the risk as a bar to recovery in negligence for a golf spectator who assumed known risks inherent in a particular activity when he was hit with an errant golf ball); W. Prosser, Torts §68, at 447 (4th ed. 1971), quoting Cincinnati, N.O. & T.P. Ry. Co. v. Thompson, 236 F. 1, 9 (6th Cir. 1916) (“ ‘Knowledge of the risk is the watchword of assumption of [the] risk’ ”). However, in Landrum, the court held that the question of whether the contact sports exception applies is to be based on the objectively determined risk associated with the game played, as opposed to the injured plaintiff’s subjective knowledge of the risks of the game. Landrum, 257 Ill. App. 3d at 947-48, citing Keller, 156 Ill. App. 3d at 237. Though we note the inconsistency between Landrum and the seemingly prevalent rationale for the contact sports exception, we have no doubt that the approach in Landrum is a correct statement of Illinois law, which, as noted, states that a participant is barred from suing a co-participant not because of assumption of the risk but instead because no duty of reasonable care exists in contact sports situations.

However, despite appearances, in some situations Landrum’s statement may be reconcilable with the concepts behind assumption of the risk principles. Landrum apparently includes within the contact sports exception both risks the plaintiff subjectively appreciated and risks the plaintiff should have appreciated (i.e., risks that objectively existed). If the player’s subjective expectations are unreasonable, and thus if the player should have appreciated the risks of the sport, then the doctrine of assumption of the risk would not apply, but comparative negligence would. See Alvis v. Ribar, 85 Ill. 2d 1 (1981) (adopting comparative negligence scheme in Illinois to replace former contributory negligence scheme), abrogated by Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1116 (now 735 ILCS 5/2 — 1116 (West 2004)) (adopting partial comparative negligence scheme wherein a plaintiff is barred from recovery if more than 50% at fault, but recovery diminished in proportion to fault if plaintiff is no more than 50% at fault); D. Lazaroff, Torts & Sports: Participant Liability to Co-Participants for Injuries Sustained During Competition, 7 U. Miami Ent. & Sports L. Rev. 191, 207 (Spring 1990) (“If plaintiff does not appreciate the risk and is unreasonable in not doing so, then comparative fault principles apply”); W. Prosser, Torts §68, at 448 (4th ed. 1971) (the plaintiff’s “failure to exercise ordinary care to discover the danger is not properly a matter of assumption of the risk, but of the defense of contributory negligence”). Further, if a plaintiffs conduct in encountering a known risk is unreasonable, “his conduct is a form of contributory negligence, in which the negligence consists in making the wrong choice and voluntarily encountering [such] a known unreasonable risk [or accepting a reasonable risk but failing to exercise proper care against it].” W. Prosser, Torts §68, at 441 (4th ed. 1971). Landrum could be seen as analyzing these instances of a plaintiffs comparative negligence under the label of the contact sports exception.

That said, we acknowledge two points that make Landrum difficult to reconcile with our discussion here. First, it is possible that a plaintiff, based on circumstances he or she reasonably had the opportunity to observe, would not be aware of the objectively physical nature of a game. In such a situation, absent some other negligence by the plaintiff in agreeing to join the game or failing to appreciate the risks of the game, or some negligent or willful act or omission by a defendant misleading the plaintiff regarding the nature of the game, the statement in Landrum that application of the contact sports exception turns on the objective characteristics of the relevant game cannot be reconciled with a straightforward application of assumption of the risk principles. Second, the ultimate effect of a plaintiffs comparative negligence in a case where the plaintiff negligently failed to appreciate a risk (and thus did not assume the risk) would unlikely per se amount to the same effect as an assumption of the risk causing the complete bar to a negligence action, because it could not be presumed that a plaintiff would have assented to a category of risk (or to the defendant’s negligence) had the plaintiff acted reasonably to understand the risks. Instead, the plaintiffs negligence would be considered under the Illinois partial comparative negligence statute. See 735 ILCS 5/2 — 1116 (West 2004). In a case where the plaintiffs level of fault is found to be no more than 50%, and thus the plaintiff is not completely barred from recovery, assumption of the risk principles would diverge from the holding in Landrum. Accordingly, we recognize that Landrum (and the idea that the contact sports exception is a “no duty” rule rather than an assumption of the risk rule) cannot fully be reconciled with our discussion.

Having determined that the contact sports exception finds partial justification in the doctrine of assumption of the risk, we must examine that doctrine to determine its application to this case. Common law recognizes three types of assumption of the risk: express assumption of the risk, primary implied assumption of the risk, and secondary implied assumption of the risk. Duffy v. Midlothian Country Club, 135 Ill. App. 3d 429, 433-34 (1985). Under express assumption of the risk, a plaintiff and a defendant explicitly agree in advance that the defendant owes no legal duty to the plaintiff and that the plaintiff therefore cannot recover for injuries caused either by risks inherent in the situation or by dangers created by the defendant’s negligence. Duffy, 135 Ill. App. 3d at 433. Primary implied assumption of the risk, which is the type of risk assumption at issue here, exists when a plaintiff assumes known risks inherent in a particular activity or situation and thus assumes risks created not by the defendant but by the situation itself. Sullivan-Coughlin, 349 Ill. App. 3d at 560. Secondary implied assumption of the risk occurs where a plaintiff knowingly encounters a particular risk created by a defendant’s negligence (Duffy, 135 Ill. App. 3d at 433-34), and thus both the plaintiff and the defendant share responsibility for the plaintiffs injury.

Because the risks assumed with primary implied assumption of the risk are those created not by the defendant but rather by the nature of the activity, it has been stated that primary implied assumption of the risk is not a true negligence defense because no action for negligence is ever alleged. Duffy, 135 Ill. App. 3d at 433.

This statement highlights the interplay in the sports context between the concepts referred to above of assumption of the risk and duty. See Knight v. Jewett, 3 Cal. 4th 296, 308, 834 P.2d 696, 703, 11 Cal. Rptr. 2d 2, 9 (1992) (“those instances in which the assumption of risk doctrine embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk— the category of assumption of risk that the legal commentators generally refer to as ‘primary assumption of risk’ ”); Ordway v. Superior Court, 198 Cal. App. 3d 98, 104, 243 Cal. Rptr. 536, 539 (1988) (implied assumption of risk is “only another way of stating that the defendant’s duty of care has been reduced in proportion to the hazards attendant to the event”); O’Neill v. Daniels, 523 N.Y.S.2d 264, 265, 135 A.D.2d 1076, 1077 (N.Y. App. Div. 1987) (duty of care owed to a plaintiff must be evaluated by considering the risks the plaintiff assumed and how those assumed risks qualified the defendants’ duty to him); W. Prosser, Torts §68, at 440 (4th ed. 1971) (the primary implied assumption of the risk doctrine results in the “defendant *** simply [being] relieved of the duty which would otherwise exist”). Assumption of the risk may be viewed as consent to absolve a defendant of negligence or as consent to hold a defendant to a lower duty of care, such that actions that would normally be considered negligent would no longer be so considered. Thus, the doctrine either absolves negligence or changes the standard of care. See F. James, Assumption of Risk: Unhappy Reincarnation, 78 Yale L.J. 185, 190 (1968) (assumption of the risk “is simply a confusing way of stating certain no duty rules or, where there has been a breach of duty toward plaintiff, simply one kind of contributory negligence”); see also Restatement (Second) of Torts §496A, Comment c (1965) (assumption of the risk relieves defendant of duty to plaintiff). (Significantly, as it affects our policy discussion here, the contact sports exception is also viewed as doing either or both. See Pfister, 167 Ill. 2d at 425-26 (trial court “properly applied the contact sports exception bar to liability for injuries caused by *** negligence”); Pfister, 167 Ill. 2d at 421 (contact sports exception creates a limited duty for sports participants).) As stated above, this overlap in assumption of the risk between “no duty” principles and contributory negligence is part of the reason that implied assumption of the risk is not employed under Illinois law absent a contractual or employment relationship. Barrett, 42 Ill. 2d at 534 (assumption of the risk is not a useful tool, because it is overlapped by the ideas of consent, lack of duty, and contributory negligence). However, we note that the two concepts — lack of duty and assumption of the risk vitiating negligence — are not entirely equal. Indeed, the difference in phrasing can be significant because terming assumption of the risk an absolution for negligence frames the doctrine as a defense to be asserted and proven by a defendant, while terming it as changing the standard of care removes the defendant’s duty as a matter of law and relieves the burden of establishing the assumption defense. Also, as demonstrated in Landrum, a “no duty” rule relies on the objective nature of the sport played, while an assumption of the risk rule would rely on the plaintiffs subjective knowledge of the sport played.

We further note that assumption of the risk in this context would not overlap with contributory negligence as it would in most other cases. The generally stated explanation for this overlap is as follows. See E. Kionka, Implied Assumption of the Risk: Does It Survive Comparative Fault?, 1982 S. Ill. U. L.J. 371, 382-86 (relied on throughout this paragraph). Implied assumption of the risk can be divided into reasonable and unreasonable assumption of the risk. Any unreasonable assumption of the risk would obviously equate to comparative or contributory fault by the plaintiff. “Reasonable” assumption of the risk, which by definition does not involve the plaintiffs fault, is essentially an illusory concept. In order to be said to assume a risk, a plaintiff must be aware of the risk and show a willingness to accept it voluntarily. The concept is similar to that of consent in intentional torts. See also W. Prosser, Torts §68, at 440 (4th ed. 1971) (“The situation [with express assumption of the risk] is then the same as where the plaintiff consents to the infliction of what would otherwise be an intentional tort, except that the consent is to run the risk of unintended injury”); W Prosser, Torts §68, at 445 (4th ed. 1971) (“the basis of the defense is not contract but consent”). The issue of whether a plaintiff has consented to a risk has been dealt with by Professor Kionka, who offers the following illustration:

“[A]ssume that plaintiff is badly hurt and in need of immediate medical attention. Defendant offers him a ride in his car, saying ‘My brakes are in terrible condition [due to the defendant’s negligence in maintaining the brakes], and may go out any time.’ Plaintiff nevertheless accepts the ride, the brakes fail en route, and plaintiff is seriously injured.” E. Kionka, Implied Assumption of the Risk: Does It Survive Comparative Fault?, 1982 S. Ill. U. L.J. at 383.

In that case, the plaintiff was not negligent — accepting the ride was his only reasonable alternative — but neither did he “manifest consent that defendant be excused from his potential negligence liability” (E. Kionka, Implied Assumption of the Risk: Does It Survive Comparative Fault?, 1982 S. Ill. U. L.J. at 383) by acquiescing in the risk of the defendant’s faulty brakes. His undertaking the risk in such a case is not voluntary but, rather, is compelled by circumstances, and thus, without intentional and voluntary exposure to a risk, consent to forgo suit cannot be implied and assumption of the risk should not apply. Therefore, under the above discussion, because reasonable assumption of the risk is illusory in most circumstances, only unreasonable assumption of the risk remains, and that concept is subsumed into contributory and comparative negligence.

However, the situation here belies a sweeping generalization based on the discussion above. In the situation presented here, by contrast, by participating in contact sports, a plaintiff does manifest his or her voluntary consent to allow other players’ negligence — such conduct is inherent in the game. Also, while there are likely situations, such as a situation involving a clearly overmatched plaintiff, in which a plaintiff may give such implied (or express) consent negligently, granting the consent under normal circumstances would be entirely reasonable, as even the courts of this state have indicated that sports participation is to be encouraged. See Nabozny, 31 Ill. App. 3d at 215.

Because assumption of the risk in the contact sports context is analytically distinct from a “no duty” rule and is not subsumed into a comparative fault rule, the reasons for restricting the application of the assumption of the risk rule do not apply. Given that, there may be policy considerations that support extending the assumption of the risk to this context. The rule, apparently espoused in Landrum, that the proper analytical approach is simply to assume that there is no duty owed among contact sports co-participants provides certainty for those participants on the issue of when their otherwise negligent conduct will be acceptable, instead of particularizing the question based on each individual plaintiff’s assumption of the risks of the game (or associated negligence). Thus, the “no duty” approach encourages vigorous participation in sport and provides certainty in the law. Further, if an assumption of the risk policy were to be adopted, a plaintiff who reasonably assesses the risks of an activity and nonetheless assumes them would be barred from asserting a negligence claim, while a plaintiff who unreasonably fails to assess the risks of an activity will be barred from asserting the same claim only if the plaintiffs percentage of fault (including the fault in failing to assess the risks of the activity) is greater than 50%. See 735 ILCS 5/2 — 1116 (West 2004) (a plaintiff is barred from recovering damages where the plaintiff is more than 50% at fault, and if the plaintiffs percentage of fault is less than or equal to 50%, the plaintiffs recovery is diminished in proportion to his or her percentage of fault). Thus, the doctrine of assumption of the risk in this context may inequitably and counterintuitively reward unreasonable plaintiffs. However, a plaintiff who consciously assumes the risks of participating in a contact sport also consciously assents not to require a duty of care from co-participants and thus willingly relinquishes a legal right. Put another way, an implied consent to a risk in this context is no less a consent than an express consent. Equitable or not, an unreasonable plaintiff who does not relinquish his or her legal rights in a similar manner would have to be proven to have acted unreasonably before the plaintiffs assertion of liability would be precluded or the plaintiffs recovery reduced.

On the other hand, analyzing the contact sports exception under assumption of the risk principles defines a plaintiffs legal rights in terms of his or her own actions — i.e., it does not allow a plaintiff to forgo a negligence cause of action unwittingly. Or, as stated by Professor Prosser, “What, in [a case where the plaintiff is not at fault but understands a particular risk], changes ‘duty’ to ‘no duty;’ and if it is not to be called assumption of risk, what better name can be found? And should not the burden be upon the defendant to establish the change in the situation?” W. Prosser, Torts §68, at 455-56 (4th ed. 1971).

Knight, discussed below, addressed this policy choice and decided in favor of the “no duty” approach, for three basic reasons. See Knight, 3 Cal. 4th at 311-13, 834 P2d at 705-06, 11 Cal. Rptr. 2d at 11-12. First, the California Supreme Court noted that the idea of implied consent would apply as much to an unreasonable plaintiff as to a reasonable one, but California law provided that an unreasonable plaintiff undertaking a risk is not completely barred from recovery. Knight, 3 Cal. 4th at 311, 834 P.2d at 705, 11 Cal. Rptr. 2d at 11. Of course, if assumption of the risk were seen to refer to instances of implied consent, it would diverge from a plaintiff’s contributory negligence and, in the case of an unreasonable plaintiff who assumes a risk, either concept would act as a defense against the negligent plaintiffs claim. Second, the California Supreme Court argued that “[i]t may be accurate to suggest that [a participant] ‘consents to’ or ‘agrees to assume’ the risks inherent in the activity or sport itself,” but “it is thoroughly unrealistic to suggest that *** an individual consents to *** a breach of duty by others that increases the risks inevitably posed by the activity or sport itself.” Knight, 3 Cal. 4th at 311, 834 P.2d at 705, 11 Cal. Rptr. 2d at 11. This statement overstates the reach of the implied consent, which would apply only to those risks inevitably posed by the sport itself, not to conduct that increases the risks posed beyond that threshold. Third, Knight argues that a subjective assumption of the risk approach would cause “drastic disparities in the manner in which the law would treat defendants who engaged in precisely the same conduct, based on the often unknown, subjective expectations of the particular plaintiff.” Knight, 3 Cal. 4th at 313, 834 P.2d at 706, 11 Cal. Rptr. 2d at 12. This, as noted, is a valid argument against the implied consent, assumption of the risk approach.

All of that said, as noted above, Illinois law is clear in stating that implied assumption of the risk does not apply outside of contractual or employment relationships, and thus the question has been decided in favor of the “no duty” approach, with the principles of assumption of the risk supplying part of the rationale for lowering the applicable duty of care. We do not propose to alter that approach here; indeed, the “no duty” approach is consistent with the principles, other than assumption of the risk, discussed below that support the contact sports exception. We provide the above discussion only to help contour our analysis.

We note that Nabozny was decided in 1975, and, six years later, our supreme court abandoned the doctrine of contributory negligence in favor of a comparative negligence scheme. Alvis, 85 Ill. 2d 1. The decision in Alvis was later abrogated by statute, and, under current Illinois law, a plaintiff is barred from recovering damages where the plaintiff is more than 50% at fault, and, if the plaintiffs percentage of fault is less than or equal to 50%, the plaintiffs recovery is diminished in proportion to his or her percentage of fault. 735 ILCS 5/2 — 1116(c) (West 2004). The fault to be considered under this partial comparative negligence scheme includes fault relating to assumption of the risk (i.e., the overlap between contributory negligence and assumption of the risk discussed above). 735 ILCS 5/2 — 1116(b) (West 2004). After the change in law, there may be some question as to the viability of the contact sports exception insofar as it is based upon assumption of the risk principles.

The comparative fault scheme in Illinois, however, has been held to have no effect on express assumption of the risk or implied primary assumption of the risk, even though it has been held to overrule implied secondary assumption of the risk. Savino, 273 Ill. App. 3d at 816-17. Two rationales have been offered for this holding. First, it has been said that “[i]mplied secondary assumption of risk is a form of fault resulting from unreasonable conduct by plaintiff.” Wheeler v. Roselawn Memory Gardens, 188 Ill. App. 3d 193, 202 (1989). Indeed, as noted above, implied assumption of the risk, as a direct corollary to express assumption of the risk, must indicate that the plaintiff agrees not only to undertake the risk (i.e., acquiesces to the risk) but also that the plaintiff consents to the risk (and thus consents to forgo the right to sue based on injury from the risk). In most fact situations, a plaintiff who reasonably undertakes a risk does so not fully voluntarily, but because the risk offers the most viable alternative. Thus, there is no consent to the tort, and the assumption of the risk is not complete. Of course, a plaintiff who unreasonably undertakes a risk is contributorily negligent. Therefore, an implied assumption of the risk almost always denotes an unreasonable choice by the plaintiff. But this fault concept is not a reason to distinguish primary from secondary implied risk assumption, because a plaintiff does not necessarily act reasonably in undertaking an express or primary implied assumption of a risk.

The second expressed rationale for the holding that the adoption of comparative negligence principles does not affect express or primary implied assumption of the risk but does affect secondary implied assumption of the risk is that “the secondary doctrine places greater burdens on plaintiff without his express consent.” Duffy, 135 Ill. App. 3d at 434. However, again, that statement is no less true of primary implied assumption of the risk.

The reason the principles of assumption of the risk should survive enactment of a partial comparative negligence scheme is, as discussed above, the idea that assumption of the risk, especially in the context presented here, may exist independently of any fault by the plaintiff, and a plaintiff, even when not at fault, should be held to the terms of his or her express or implied consent to certain risks. See W. Prosser, Torts §68, at 441 (4th ed. 1971) (“Obviously [contributory negligence and assumption of the risk] may coexist when the plaintiff makes an unreasonable choice to incur the risk; but either may exist without the other”). This holds true regardless of the type of assumption of the risk at issue.

Further, we note that in 1995, in Pfister, our supreme court affirmed and applied the contact sports exception and in fact examined the exception in light of risk assumption principles, after Illinois adopted the above-described partial comparative negligence scheme. Pfiste