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1989 U.S. Dist. LEXIS 10969, *
Duran v Chicago National League Ball
THERESA A. DURAN, Plaintiff, v. CHICAGO NATIONAL LEAGUE BALL
CLUB, INC., Defendant
No. 88 C 5239
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS, EASTERN DIVISION
1989 U.S. Dist. LEXIS 10969
September 14, 1989, Decided
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff spectator filed a motion to strike defendant ball club's defense of assumption of risk in the spectator's action that alleged the ball club negligently caused her injury when another spectator fell upon her while pursuing a foul ball.
The spectator filed a motion for summary judgment on the issue of contributory negligence, which was another defense asserted by the ball club.
OVERVIEW: On the issue of assumption of risk, the spectator contended that the ball club's attempt to amend its answer would have added a new theory to the case and prejudiced the spectator by requiring additional discovery on the eve of trial. The ball club argued that no prejudice would have resulted because the facts upon which it relied were the same facts supporting its contributory negligence defense. On the issue of contributory negligence, the spectator contended that there was no evidence of any negligent conduct on her part. The ball club asserted that a jury could have concluded that the spectator acted carelessly by not attempting to change the location of her season ticket seat despite the fact that she had previously seen foul balls hit into and chased by fans in her section. The court granted the spectator's motions. The court held that Illinois courts had abolished the doctrine of implied assumption of risk by the introduction of comparative negligence into our jurisprudence. The court found that a rational jury could not have concluded that the spectator acted unreasonably or carelessly by taking a seat where foul balls sometimes landed.
OUTCOME: The court granted the spectator's motion to strike defendant ball club's defense of assumption of risk in the spectator's action that alleged the ball club negligently caused her injury when another spectator fell upon her while pursuing a foul ball.
The court granted the spectator's motion for summary judgment on the issue of contributory negligence, which was another defense asserted by the ball club.
CORE TERMS: assumption of risk, foul ball, contributory negligence, comparative negligence, comparative fault, amend, summary judgment, seat, risks inherent, known risk, facts supporting, original answer, discovery, secondary, willful, hit, defense of contributory negligence, leave to amend, possibility of injury, negligent conduct, carelessly, spectator, realized
LexisNexis(R) Headnotes
Torts > Negligence > Defenses > Assumption of Risk > Elements & Nature > Express Assumption of Risk
Torts > Negligence > Defenses > Assumption of Risk > Elements & Nature > Primary Assumption of Risk
[HN1] Express assumption of risk is based on an explicit agreement whereby the plaintiff agrees in advance that defendant is not liable for injuries resulting from its negligence.
If the defendant's actions are not willful or reckless, and the agreement is not deemed contrary to public policy, express assumption of risk bars recovery completely.
Implied assumption of risk, on the other hand, is based upon the plaintiff's conduct rather than an explicit agreement. To prove this defense, the defendant must show that the plaintiff was aware of the risk created by defendant's negligence, and nonetheless, voluntarily proceeded to undertake that risk.
Torts > Negligence > Defenses > Assumption of Risk > General Overview

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1989 U.S. Dist. LEXIS 10969, *
Torts > Negligence > Defenses > Comparative Negligence > Common Law Concepts > Assumption of Risk
[HN2] While negligent assumption of risk remains relevant as an aspect of comparative negligence analysis, reasonable assumption of risk is no longer a valid defense.
OPINION BY: [*1] MARSHALL
OPINION
MEMORANDUM OPINION
PRENTICE H. MARSHALL, UNITED STATES DISTRICT JUDGE
Defendant Chicago National League Ball Club, Inc. owns and operates Wrigley Field. On June 16, 1988 plaintiff brought this diversity action to recover for injuries allegedly sustained when a spectator landed on top of her while pursuing a foul ball . Defendant filed its answer on July 12, 1988 and in it asserted the affirmative defense of contributory negligence . On June 28, 1989, we denied defendant's motion for summary judgment and set a trial date of
October 30, 1989. On August 10, 1989, defendant requested leave to amend its answer to add assumption of risk as a defense. We granted the leave to amend, but without prejudice to plaintiff's motion to strike the addition. We consider here plaintiff's motion to strike the defense of assumption of risk and for summary judgment on the issue of contributory negligence .
A. Assumption of Risk
Defendant seeks to amend its answer to assert:
[P]laintiff entered into a contract with [defendant] by which she assumed . . . the risk of being injured . . . by a spectator attempting to retrieve a foul ball .
[P]laintiff was well aware of this risk and realized the possibility [*2] of injury or, in the exercise of ordinary care, would have known the risk existed and realized the possibility of injury, and entered into the agreement by which she assumed the risk voluntarily.
[T]he risk assumed by the plaintiff was the cause of the plaintiff's injury and, therefore, plaintiff is not entitled to judgment in any amount whatsoever against this defendant.
Plaintiff contends that defendant's last minute attempt to amend its answer will add a new theory to the case and prejudice plaintiff by requiring additional discovery and research on the eve of trial. Defendant, relying on Witcjak v.
New Franklin Coal Mining Co., 173 F.Supp. 661 (E.D.Penn. 1959), argues that no prejudice will result because the facts upon which defendant relies for its assumption of risk theory are the same facts supporting its contributory negligence defense, and that defense was asserted in its original answer.
Illinois recognizes two distinct forms of assumption of risk. It is not clear from the language of defendant's amendment whether defendant seeks to assert express or implied assumption of risk. Under either theory, however, defendant's proposed amendment must be stricken.
[HN1] Express [*3] assumption of risk is based on an explicit agreement whereby the plaintiff agrees in advance that defendant is not liable for injuries resulting from its negligence.
Duffy v. Midlothian Country Club, 135 Ill.App.3d 429,
433, 481 N.E.2d 1037, 1041 (1985). If the defendant's actions are not willful or reckless, and the agreement is not deemed contrary to public policy, express assumption of risk bars recovery completely. Id.
Implied assumption of risk, on the other hand, is based upon the plaintiff's conduct rather than an explicit agreement. To prove this defense, the defendant must show that the plaintiff was aware of the risk created by defendant's negligence, and nonetheless, voluntarily proceeded to undertake that risk. Id.; Davis v. Consolidated Rail Corp., 788 F.2d 1260, 1266 (7th Cir.
1986). 1
1 Implied assumption of risk is sometimes further subdivided into primary and secondary categories. Primary implied assumption of risk refers to situations where the plaintiff assumes risks inherent in the activity itself, as opposed to those created by the defendant's negligence.
Most courts recognize that this is not truly a defense, but rather simply another way of stating that the defendant owed no duty to protect the plaintiff from the risk. See, e.g., Rini v. Oaklawn Jockey Club, 861 F.2d 502, 506 (8th Cir. 1988); Davis.
788 F.2d at 1266. We have already determined that such a duty exists here. We are therefore concerned only with what is labeled implied "secondary" assumption of risk.

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1989 U.S. Dist. LEXIS 10969, *
[*4] In its brief, defendant clearly is asserting the defense of implied assumption of risk. In order to avail itself of the reasoning set forth in Witcjak, it argues that the facts supporting its new defense are limited to the plaintiffs' conduct, namely her sitting in the seats despite her knowledge of the risk of unruly attempts to catch foul balls . There is therefore no prejudice, defendant concludes, because these same facts underlie its previously asserted defense of contributory negligence .
However, Illinois courts have recently adopted the majority view that the doctrine of implied assumption of risk "is necessarily abolished by the introduction of comparative negligence into our jurisprudence." See Duffy, 135 Ill.App.3d at 435, 481 N.E.2d at 1043. Plaintiff's conduct in undertaking a known risk is now relevant only to comparative negligence ; it is not available as a separate defense. 2 Id.
Thus, to the extent the defendant's amendment asserts implied assumption of risk, it is facially deficient under Illinois law.
2 Several courts and commentators have recognized that the implied assumption of risk defense encompassed both reasonable assumptions of risk and unreasonable assumptions of risk, and that reasonable assumption of risk -- by definition faultless conduct -- will not plug into the comparative fault analysis. It must therefore "either remain as a complete defense or serve as no defense at all." Rini.
861 F.2d at 508.
Although Illinois courts have not considered this point specifically, the eighth circuit has concluded that, [HN2] while negligent assumption of risk remains relevant as an aspect of comparative negligence analysis, reasonable assumption of risk is no longer a valid defense. Id.
at
508-09. We find that court's reasoning persuasive and consistent with Illinois principles, and therefore adopt it here.
[*5] If, on the other hand, defendant's amendment is construed to assert express assumption of risk, we agree with plaintiff that defendant's delay is unnecessary and prejudicial. The reasoning supporting Witcjak no longer applies; the issue raised by this theory is the parties' explicit agreement, not the plaintiff's conduct. The addition of a contractual theory such as this raises factual issues outside of the pleadings as originally drawn. Plaintiff's assertion that additional discovery would be required is reasonable (to our knowledge there has been no disclosure of evidence concerning an exculpatory agreement between the parties). Plaintiff would also be entitled to amend its pleadings to allege wanton and willful conduct. We can conceive of no good reason why this theory was left out of the original answer, and defendant offers none. Thus, to the extent defendant seeks to assert express assumption of risk, its amendment is untimely.
B. Contributory Negligence
Plaintiff contends that there is no evidence of any negligent conduct on the part of the plaintiff. Defendant responds that the jury could conclude plaintiff acted carelessly by not attempting to change the location of [*6] her season ticket seat despite the fact that she had previously seen foul balls hit into and chased by fans in her section.
This is not sufficient to create an issue of fact over which reasonable minds could differ. A rational jury could not conclude that plaintiff acted unreasonably or carelessly simply by taking a seat in a section where foul balls sometimes land. 3
3 This situation illustrates the effect of the Rini decision discussed in note 2. There is no evidence of unreasonable assumption of risk here.
At most, plaintiff reasonably assumed a known risk. While this may have barred recovery prior to the adoption of comparative fault -- indeed, the risk of being hit by a foul ball is the classic example of an assumed risk -- it is no longer available even as a partial defense due to the adoption of comparative fault. See Rini, 861 F.2d at 508-09.
Note, however, that nothing in today's decision prevents the jury from in effect finding "primary" assumption of risk, that is, that plaintiff's injuries were caused by risks inherent at a crowded baseball game rather than by negligent conduct by the defendant.
ORDER:
Plaintiff's motion for summary judgment on the issue [*7] of plaintiff's contributory negligence is granted. Plaintiff's motion to strike defendant's defense of assumption of risk is granted. Trial to proceed as scheduled.

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