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FOURTH DIVISION

JUSTICE HOFFMAN delivered the opinion of the court:

The instant litigation revolves around an accident which occurred on February 19, 1992, during the seventh race at Sportsman's Park racetrack. During that race, the number one horse, ridden by jockey Danny Lang (Lang), fell, resulting in internal and external injuries to Lang. Following the race, Carlos Silva, the jockey of the number two horse, was cited for careless riding, disqualified from the race in question, and suspended from racing for five days. On February 18, 1994, Lang and his wife, Linda Lang, filed an amended complaint against Silva, Crown's Way Farm, Inc. (Crown's Way), Ronald Dicicilia, Gene Cilio, and other parties not relevant to this appeal. The plaintiffs alleged that the fall resulting in Lang's injury occurred when Lang's horse came into contact with the horse ridden by Silva, owned by Crown's Way and Dicicilia, and trained by Cilio. The complaint alleged, in relevant part, theories of negligence, willful and wanton conduct, negligent and/or willful and wanton entrustment, and loss of consortium.

On September 6, 1994, Silva filed a motion to dismiss counts I through IV of the plaintiffs' amended complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1996)). The trial court granted the motion in part, dismissing count I (negligence) and count III (willful and wanton conduct), but allowing the plaintiffs leave to replead those counts. On August 7, 1995, the plaintiffs filed their "Second Amended Counts I-IV" (hereinafter referred to as the second amended complaint). Each of the four counts in the second amended complaint were directed against Silva, Crown's Way, Dicicilia, and Cilio. Count I alleged that Silva's negligence had resulted in the collision during the seventh race and that Crown's Way, Dicicilia, and Cilio were vicariously liable for Silva's negligence. Count III alleged that Silva's willful and wanton conduct caused the collision. Count III also sought recovery against Crown's Way, Dicicilia, and Cilio on theories of vicarious liability and negligent and/or willful and wanton entrustment. Counts II and IV mirrored the theories of liability in counts I and III and asserted claims for loss of consortium on behalf of Linda Lang.

Silva filed a section 2-615 motion to dismiss the plaintiffs' second amended complaint. Crown's Way, Dicicilia, and Cilio also filed a joint section 2-615 motion. The two motions contained essentially the same arguments in support of dismissal, namely that: 1) count I should be dismissed because Lang had voluntarily assumed the risk of injury and because, as a voluntary participant in a contact sport, he was unable to recover damages caused by Silva's negligence; 2) count III should be dismissed because, stripped of its conclusory language, it was insufficient to allege a cause of action for willful and wanton misconduct; and 3) counts II and IV, asserting causes of action for loss of consortium, should be dismissed because they were contingent on findings of liability under counts I and III.

On August 28, 1996, the trial court denied both section 2-615 motions to dismiss, apparently suggesting that a motion to dismiss pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 1996)) would be more appropriate as it would allow the parties to submit factual material about the sport of horse racing in order to enable the court to make a determination as to whether it was a contact sport. Thereafter, Silva, Crown's Way, Dicicilia, and Cilio filed a joint section 2-619 motion to dismiss counts I and II of the second amended complaint, repeating the arguments directed toward those counts in their respective section 2-615 motions.

In support of their motion to dismiss, the defendants submitted a number of affidavits and depositions, a report regarding the number of horse racing related injuries reported in 1995, newspaper articles regarding the dangers of horse racing, and videotapes of the race in which Lang was injured as well as of several days worth of races. Among the affidavits were those of John Giovanni and Heriberto Arroyo, who had been jockeys for periods of 20 and 12 years respectively and ridden in 18,000 and 10,000 races respectively. Giovanni and Arroyo each averred that they had viewed tens of thousands of races. Giovanni estimated that contact between horses occurred in about 95% of the races in which he rode and further stated that he saw contact between horses, including the touching, bumping, and brushing of various parts of the horses' bodies and "clipping of the heels and the like", in nearly every race he viewed. Arroyo averred that he had viewed contact between horses in nearly every race.

The defendants also submitted Silva's deposition, in which he testified that, since beginning his career in the United States in 1978, he had participated in approximately 10,000 races. Asked about the frequency of contact that actually occurs during a race, Silva answered: "Oh, I don't want to say every race; but they have contacts a lot." Silva averred that horses clip heels "all the time" and that "[t]here is a lot of contact in the race." The defendants also submitted the depositions of Juvenal Diaz, Curt Bourque, Eddie Baird, Cilio, and Eric Viox. At the time of their depositions, Diaz, Bourque, and Baird had been jockeys for periods of 26, 13, and 12 years, respectively. Diaz and Baird testified that contact occurs during almost every race, and Bourque testified that it is a common occurrence. Cilio, who had been a trainer since 1987, testified that contact between horses occurs in almost every race. Eric Viox testified that he rode as a jockey in 1975-76 and had been a racing steward in Illinois from 1985 to 1993. Viox testified that there is "some bumping or contact" in "just about every race."

The plaintiffs filed a response to the defendants' motion to dismiss, to which they attached Lang's affidavit. Lang averred that, between 1970 and 1992, he had ridden in approximately 10,000 races, quarterhorse or thoroughbred. According to Lang, "physical contact between horses and riders during a race rarely occurs unless the rider fails to control the horse." He estimated that, during his 22 years of racing, he experienced contact during a race no more than 10 to 20 times per year and that "[c]ontact between riders was not inherent or inevitable, but was rare."

On November 5, 1997, the trial court held a hearing on the defendants' section 2-619 motion. It granted the motion and dismissed counts I and II of the second amended complaint as to all defendants, finding that horse racing is a contact sport falling within the contact sport exception to liability for negligence as defined by our courts. On December 12, 1997, the plaintiffs filed a motion requesting that the trial court enter an order finding that no just reason existed to delay enforcement or appeal of its November 5 order.

On January 23, 1998, Crown's Way, Dicicilia, and Cilio filed a motion for summary judgment as to counts III and IV of the second amended complaint. They argued that they were entitled to entry of summary judgment in their favor for two reasons: 1) they could not be held vicariously liable for Silva's conduct because he was an independent contractor; and 2) the plaintiffs claims of negligent or willful and wanton entrustment of the horse to Silva were not supported by Silva's racing record. In support of their motion for summary judgment, these defendants submitted the depositions of Lang, Silva, Dicicilia, Cilio, Diaz, Baird, Bourque, and Viox; the videotapes of several days worth of racing; and a transcript of Silva's racing history.

In his deposition, Silva testified that he was self-employed. The races he rode in were arranged through his agent. At the time of the race in question, about 30% of the races he rode were for Crown's Way. Crown's Way provided the horse and the silks, but Silva was required to provide his own saddle. Silva testified he was paid 10% of the horse's purse for a first place finish, 5% for a second or third place finish, and $50 per race for anything else. The racetrack bookkeeper would deduct the money due him from the horse's guarantee and pay him. Silva testified that, in general, he would meet with a horse's trainer in the paddock prior to the race. The trainer tells him "how they think the horse is going to run better." Silva further testified, though, that when the gates open, the jockey has to "hold [his] own" and that, despite the trainer's suggestions, he exercises his own best judgment as to how to run the race. The only thing he recalled Cilio saying to him prior to the race in question is "You ride the race and try to do the best." Silva testified that he had been cited for riding violations 11 times in the preceding 15 years. Each of the violations was for careless riding. He also testified that a typical jockey would have more than a few racing violations per year.

In his deposition, Dicicilia testified that one of the reasons he chose Silva to ride his horses was that "throughout the industry Carlos Silva has the reputation of being a careful and serious minded rider who doesn't take chances." Dicicilia further testified that Silva was paid out of the race track account, not Crown's Way's account, and that Crown's Way did not provide any insurance coverage for the jockeys it used.

Cilio testified that prior to a race the jockey and trainer evaluate the field to try to decide how to run the race. As the trainer, he has the authority to tell the jockey how he wants him to run the race. His standard instructions are "if they're not familiar to tell them some of the peculiarities of the horse". Once the jockey leaves the gate, though, he has control and may do as the race dictates. On the date in question, Cilio told Silva that "when she breaks just do the best you can." Cilio testified that he was not aware of the exact number of violations Silva had, but he knew it was "very few." He testified that, considering the number of races in which Silva had ridden, Silva had "far less" violations than most jockeys and that his record was much better than the average jockey's record.

Viox testified that Silva was a very careful rider and that 12 violations during a 10 to 15 year period including 10,000 to 15,000 races is a better than average record. Baird testified that, in February 1992, Silva had the reputation of being an excellent jockey.

On April 23, 1998, the trial court conducted a hearing on the motion for summary judgment. The trial court granted the motion for summary judgment, finding that: 1) Crown's Way, Dicicilia, and Cilio could not be held vicariously liable for Silva's allegedly willful and wanton conduct because Silva was an independent contractor as a matter of law; and 2) the evidence presented regarding Silva's racing history was not sufficient to support the cause of action for negligent and/or willful and wanton entrustment. In its order, the trial court made a finding, pursuant to Supreme Court Rule 304(a), that no just reason existed to delay enforcement or appeal of its ruling on the motion for summary judgment or its November 5, 1997, order dismissing counts I and II of the plaintiffs' second amended complaint. This appeal followed.

The plaintiffs first argue that the trial court erred in dismissing counts I and II of their second amended complaint. They contend that horse racing is not a contact sport and that the defendants should not, therefore, be allowed to escape liability for negligence based upon the contact sports exception. The Jockeys' Guild, Inc., has submitted a brief as amicus curiae in which it urges us to find that thoroughbred racing is, indeed, a contact sport.

Illinois courts have created an exception to the standard of ordinary care, whereby voluntary participants in contact sports are not liable to co-participants for injuries caused by negligent conduct but are liable only for injuries caused by willful and wanton or intentional misconduct. Pfister v. Shusta, 167 Ill. 2d 417, 420, 657 N.E.2d 1013 (1995). In determining what constitutes a contact sport, our courts have focused on whether physical contact is inevitable and inherent in the activity. See Pfister, 167 Ill. 2d at 425 (participants in sports where physical contact is "inherent and virtually inevitable" assume greater risk of injury than participants in noncontact sports); Landrum v. Gonzalez, 257 Ill. App. 3d 942, 948, 629 N.E.2d 710 (1994)(softball a contact sport where "physical contact is part of the game"). This court noted in Zurla v. Hydel, 289 Ill. App. 3d 215, 221, 681 N.E.2d 148 (1997), that, in each case where Illinois courts have applied the contact sports exception, physical contact with co-participants or with "some physical component of the game" has been "part and parcel of the sport" involved.

In support of their contention that physical contact between the horses and riders is not an inherent or inevitable part of a professional horse race, the plaintiffs point to the Rules of the Race promulgated by the Illinois Racing Board in accordance with authority granted them by the Illinois Horse Racing Act (230 ILCS 5/9(b) (West 1996)). The Rules of the Race provide that a jockey may be disciplined for: crossing and weaving in front of any horse in such a manner as to constitute interference or intimidation; crossing in front of another horse in such a manner as to actually impede that horse; jostling another horse; willfully striking another horse; or riding willfully or carelessly so as to injure another horse. 11 Ill. Adm. Code