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Lestina v. West Bend Mutual Insurance

Wisconsin Supreme Court
55 A.L.R. 5th 863, 501 N.W.2d 28, 176 Wis.2d 901 (1993)
ELI5:

Sections

Rule of Law:

The standard of care governing the conduct of participants in recreational team contact sports is ordinary negligence, meaning participants must exercise ordinary care under the circumstances to avoid injuring others.


Facts:

  • Robert Lestina (plaintiff), age 45, and Leopold Jerger (defendant), age 57, were participating in a recreational soccer match organized by the Waukesha County Old Timers League.
  • Lestina was playing an offensive position while Jerger was the goalkeeper for the opposing team.
  • The league rules explicitly prohibited 'slide tackles' to minimize the risk of injury to the players.
  • During the match, Lestina scored a goal and shortly thereafter regained possession of the ball to attempt a second goal.
  • Jerger ran out of the goal area and collided with Lestina.
  • Lestina alleged that Jerger used a 'slide tackle' maneuver to prevent him from scoring, causing a serious injury to Lestina's left knee and leg.
  • Jerger claimed the collision occurred as both men simultaneously attempted to kick the ball.

Procedural Posture:

  • Lestina filed a personal injury tort action against Jerger and his insurer in the Circuit Court for Waukesha County.
  • Jerger moved for summary judgment, arguing that negligence was not the correct legal standard.
  • The Circuit Court denied the motion for summary judgment.
  • The parties stipulated to damages and proceeded to a trial limited to the issue of liability.
  • The jury returned a unanimous verdict finding Jerger 100% causally negligent.
  • Jerger filed post-verdict motions again challenging the negligence standard, which the Circuit Court denied.
  • Jerger appealed the judgment to the Wisconsin Court of Appeals.
  • The Court of Appeals certified the question of the legal standard to the Wisconsin Supreme Court.

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Issue:

Is negligence the appropriate legal standard to determine liability for personal injuries caused by one player to another during a recreational team contact sports competition?


Opinions:

Majority - Shirley S. Abrahamson

Yes, the rules of negligence govern liability for injuries incurred during recreational team contact sports. The court reasoned that while many other jurisdictions have adopted a 'recklessness' or 'intentional tort' standard to protect vigorous competition, the negligence standard is sufficiently flexible to achieve the same balance. Because negligence requires only ordinary care 'under the circumstances,' the specific context of the sport—including its inherent risks and accepted customs—defines what constitutes reasonable conduct. The court rejected the argument that applying negligence would chill participation in sports, concluding that a properly applied negligence standard allows for vigorous competition while still holding participants accountable for unreasonable conduct, such as violating safety rules designed to protect players.


Dissent - Jon P. Wilcox

No, the unique nature of contact sports calls for the application of a standard of care higher than ordinary negligence, specifically reckless disregard for safety. The dissent argued that contact sports inevitably involve rule infractions and physical contact that might be considered negligent in other contexts. Applying an ordinary negligence standard makes Wisconsin a minority among jurisdictions and risks discouraging active participation in sports due to fear of litigation. The dissent advocated for the rule adopted by the majority of other courts: a player should only be liable if their conduct constitutes a reckless disregard for the safety of others, which is a higher threshold than mere carelessness.



Analysis:

This decision made Wisconsin an outlier at the time, as most jurisdictions (like Illinois in Nabozny v. Barnhill) apply a 'recklessness' or 'willful and wanton' standard to sports injuries to prevent a flood of litigation arising from competitive play. The court's decision rests on the theory that 'negligence' is not a fixed bar but a sliding scale that changes based on the activity. Ideally, this means a jury shouldn't find a player negligent for a hard foul that is part of the game, but only for conduct that is unreasonable given the sport's context. However, critics argue this leaves too much uncertainty for athletes, as they cannot predict what a jury will consider 'reasonable' in the heat of a game.

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