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Docket Nos. 87895, 87910 cons.-Agenda 17-January 2000.

JOHN HILLS et al., Appellees, v. BRIDGEVIEW LITTLE LEAGUE ASSOCIATION et al., Appellants.

Opinion filed November 16, 2000.

JUSTICE McMORROW delivered the opinion of the court:

On July 30, 1990, plaintiff John Hills was attacked and beatenwhile coaching first base for a Little League baseball team. Hisattackers, Ted Loy, George Loy, Sr., and George Loy, Jr., were,respectively, the manager and assistant coaches for the opposingteam, which was sponsored by defendant Bridgeview LittleLeague Association (Bridgeview). The attack occurred during aLittle League baseball tournament hosted by defendant JusticeWillow Springs Little League (Justice).

After the attack, John Hills and his wife, plaintiff PatriciaHills, sued the Loys in the circuit court of Cook County, seekingdamages for John Hills' personal injuries and for Patricia Hills'loss of consortium. Plaintiffs also sued Bridgeview and Justice,alleging that Bridgeview negligently failed to supervise andcontrol the Loys, and that Justice negligently failed to protect JohnHills from the attack. The Loys defaulted.⁽¹⁾ A jury found againstBridgeview and Justice, apportioning fault pursuant to section2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117 (West1994)) equally between the two. The trial judge did not permit thejury to include the Loys in the apportionment of fault. Theappellate court affirmed the judgment of the circuit court. 306 Ill.App. 3d 13. We granted Bridgeview's and Justice's petitions forleave to appeal and consolidated the cases for review.

At trial, John Hills testified that, in the summer of 1990, hewas the first base coach on an all-star Little League baseball teamsponsored by the Lemont Little League Association. The playerson the team were 14-year-olds. In July 1990, the Lemont teamentered a Little League baseball tournament sponsored by Justice.To enter the tournament, the Lemont team payed a fee of $125 andposted a surety bond. The entrance fee was paid by the Lemontteam's manager, Ray Chadorowski.

On July 30, 1990, as part of the regular tournament schedule,the Lemont team played a game against an all-star Little Leagueteam sponsored by Bridgeview. According to Hills, approximately40 people were in attendance at the game. Hills stated that theLemont and Bridgeview teams had played each other earlier in thetournament without incident and that, prior to July 30, he hadnever heard anything negative about the Bridgeview coaches ormanager. Hills exchanged "hellos" in the parking lot with themanager of the Bridgeview team, Ted Loy, before the game began.As the teams took the field, Hills sensed no problems withanyone's behavior and had no indication that anything was out ofthe ordinary.

The playing field on which the July 30 game was held wasone of two adjacent baseball fields located in the middle of aresidential neighborhood in Willow Springs. The playing field wascompletely surrounded by a chain link fence approximately sixfeet high. Behind home plate, the fence rose higher, forming aprotective backstop. Behind this backstop was an elevated boothor platform with a small public address system. An announcer satin this booth during the game.

The areas where the teams sat during the games, the dugouts,were inside the fence that surrounded the field and werethemselves protected by chain link fencing. The dugout on the firstbase side of the field had one opening that was approximately 10feet from first base. During the game, the Bridgeview teamoccupied the first base dugout and the Lemont team occupied thedugout near third base. While their respective teams were batting,the first base coaches from each team stood in a designated areabetween first base and the Bridgeview dugout known as thecoach's box and directed the players who safely reached first baseto stop or to keep running. Bridgeview's first base coach was TedLoy's nephew, 16-year-old George Loy, Jr.

Hills testified that, during the first inning, in an attempt toinfluence the first base umpire's calls, George Loy, Jr., begangesturing and yelling "safe, safe, safe" as the Bridgeview playerscrossed first base. The Lemont team called time-out. A conferencewas held among the home plate umpire, Scott Van Wagner, thefirst base umpire, Ed Jalovec, and the Bridgeview and Justicemanagers and coaches. During the conference, Van Wagner toldthe Bridgeview coaches to stop trying to influence the first baseumpire's calls. Play resumed.

Hills testified that nothing unusual happened during thesecond inning. However, during the third or fourth inning, whileHills was in the coach's box at first base, Bridgeview assistantcoach George Loy, Sr., began shouting at Hills from theBridgeview dugout. According to Hills, George Loy, Sr., beganyelling such things as "Hey you four eyed M-Fer, I'm going tokick your ass." Hills, who was facing the playing field, turnedaround and said, "What did you say?" Loy said, "You heard me,"and began swearing again. Hills stated that he asked Loy, "Forwhat?" Loy replied, "For what happened earlier in the firstinning." Hills said, "You got to be kidding," and told Loy to"Forget about it, leave it go, it's only a kid's game, let it lie." Loyresponded, "No way, I'm coming after you." According to Hills,Loy repeated similar statements at least four or five times duringthe third and fourth innings. Prior to the fifth inning, Hills told RayChadorowski and Harry Keeler, Lemont's third base coach, thatGeorge Loy, Sr., was yelling and swearing at him. Keeler askedHills if he wanted to continue coaching first base. Hills said thathe did.

During the fifth inning, George Loy, Sr., again swore at Hills.Hills ignored Loy and did not turn around. During the sixth inning,Hills' team scored several runs and took the lead in the game. Loycontinued swearing, but he was now angrier and his voice waslouder. Hills stated that, during this time, anyone who was in theBridgeview dugout would have heard the swearing and shouting.Hills also stated that the first base umpire, who was standing in thefield between first and second base, would have been able to hearthe swearing. Hills stated that neither the first base umpire nor theBridgeview manager, Ted Loy, told George Loy, Sr., to stopyelling and swearing. Hills acknowledged, however, that he nevercomplained to Ted Loy, the first base umpire, or the home plateumpire about George Sr.'s behavior. Hills further stated that,despite the shouting and swearing, he was not nervous, he neverthought that George Loy, Sr., was going to come out of the dugoutand attack him, and that he "didn't really feel threatened at all."

At the end of the sixth inning, Hills bent down to pick up ascorebook that he had set on the ground near first base. Hillstestified that, while he was bent over, he was suddenly hit in theback of the head and knocked to the ground on his hands andknees. Unable to see his attackers, Hills was then punched in theface and hit several times in the side and back. Hills struggled toget up and was again hit in the face and side. As Hills got to hisfeet, he was punched again. Hills stated that, at this point, he sawboth George Loy, Sr., and George Loy, Jr., attacking him. GeorgeLoy, Jr., then dug his thumb into Hills' eye and tried to rip it out.After Hills was punched again in the body and face, there was a"lull" in the attack.

Hills testified that, during the "lull," he staggered in thedirection of the fence that surrounded the playing field. He thensaw George Loy, Sr., rushing toward him. Hills tried to protecthimself but was unable to prevent Loy from punching him in theface and breaking his nose. George Loy, Sr., then punched Hills acouple more times. After this, there was another "lull" in theattack.

Hills stated that he was in a daze and was feeling his brokennose when he heard someone yell, "Oh, my God, look out, he's gota bat." Hills then saw, out of the corner of his eye, George Loy, Jr.,swinging a baseball bat at his knees. Hills said that he was able tosidestep the blow so that the bat struck him on the inner side of theleft knee. Hills then fell to the ground. Hills stated that the nextthing he remembered was John O'Neill, a parent of one of theLemont players, telling him to stay down and not to move. Hillscould not recall being taken to the hospital or being treated in theemergency room. As a result of the attack, Hills suffered seriousinjuries and was hospitalized for five days.

Patricia Hills, John Hills' wife, testified that she attended thegame between Bridgeview and Lemont with her nephew, MichaelPutrow, and her mother, Clare Masterson. Patricia sat in thebleachers near the Lemont team, on the third base side of theplaying field. Patricia estimated that approximately 20 people wereseated in the Lemont bleachers. Patricia testified that the Lemontteam had participated in a tournament sponsored by Justice in1989 without incident. Patricia further stated that, prior to thegame on July 30, 1990, she had not heard anything negative aboutthe Bridgeview manager or coaches and that she had never seen aphysical fight between coaches at a Little League baseball game.

According to Patricia, nothing unusual happened during thegame until the sixth inning. During the sixth inning, Patricia sawGeorge Loy, Sr., who was yelling, quickly move four to five feetout of the Bridgeview dugout toward her husband, gesture with hishands "in a threatening manner," and then return to the dugout.Patricia stated that she saw George Loy, Sr., come out of thedugout at least four times during the sixth inning. She also saw herhusband, who had his back to the Bridgeview dugout, gesture withthe back of his hand to indicate "get away from me, or just likeleave me alone." Unable to make out what George Loy, Sr., wasyelling, Patricia told her nephew, Michael Putrow, to go over tothe first base side of the field and find out what Loy was saying toher husband. Patricia stated that, despite the fact that George Loy,Sr., was yelling and gesturing, she did not believe that he wasactually going to try and beat her husband.

As the sixth inning ended, Patricia saw her husband benddown to pick up his scorebook. As he did so, George Loy, Sr., leftthe Bridgeview dugout and knocked him down. Stunned, Patriciajumped to her feet and started running to the first base side of thefield, going around the fence that surrounded the playing area.Patricia stated that it took her 30 seconds to run from the thirdbase bleachers to the first base side of the field. As she wasrunning, Patricia saw George Loy, Sr., punch her husband all overhis body.

When she got to the first base side of the field, Patricia stoodbehind the fence that surrounded the playing field and screamedfor help. She saw the first base umpire, who was standing betweenfirst and second base, look at her husband and then turn and walkaway. She also saw the home plate umpire and the gameannouncer turn and look toward her, but not respond. Patricia thensaw Ted Loy, the Bridgeview manager, come out of the dugoutand start beating and kicking her husband. George Loy, Jr., thefirst base coach for Bridgeview, then joined the attack and tried togouge out John Hills' eye. The Bridgeview players then emptiedthe dugout and began milling around the Loys and John Hills.

Patricia stated that, after the attack had been going on forabout three minutes, Harry Keeler, the third base coach forLemont, came over, grabbed hold of George Loy, Sr., and pulledhim away from John Hills. While Keeler was holding George Loy,Sr., there was a "lull" in the attack for approximately one minute.

Patricia stated that, during the "lull," she asked her husbandif he was okay, but he was disoriented and did not respond. Whilestill trying to get a response from her husband, Patricia noticedGeorge Loy, Jr., sneak behind Keeler and pull Keeler's jacket upover his head, pinning Keeler's arms. George Loy, Sr., now freefrom Keeler's grasp, ran over to John Hills and punched him in thenose.

Patricia stated that she then saw the home plate umpire, ScottVan Wagner, trying to get the Bridgeview players under controland move them back into their dugout. Patricia estimated that sixminutes passed between the time she first screamed for help andthe time Van Wagner came down to the first base area. Patriciafurther stated that she had not heard any announcements over thepublic address system and did not see the first base umpireintervene in the attack in any way. After George Loy, Sr., punchedJohn Hills five or six more times, someone other than the umpires,Patricia was not sure who, again pulled George Loy, Sr., away.There was then another "lull" in the attack of approximately aminute.

Patricia testified that, during the lull, she was screaming andwatching her husband struggle to stay standing. She saw Ted Loysneaking back into the dugout, avoiding the home plate umpire,and acting "as if he really hadn't done anything." She then sawGeorge Loy, Jr., running toward her husband with a baseball bat.Patricia yelled, "Oh, my God, he's going to kill him now," andthen screamed to her husband, "Watch out, he's got a bat." Patriciasaw her husband get hit with the bat on the side of the knee andthen fall to the ground. George Loy, Jr., then ran away. Accordingto Patricia, John Hills was not beaten after he received the blow tohis knee.⁽²⁾ Patricia stated that, after her husband was on the ground,she started running to a concession stand, which was locatedbehind right field, to phone for an ambulance. While she wasgoing to get help, Patricia saw a man who said he lived "rightbehind the thing" and who said he would run to his house andmake the call. As Patricia was returning to her husband, she heardthe sirens of emergency vehicles coming to the field. Patriciastated that she was away from her husband for one or two minutes.She also stated that the police station was located within a fewblocks of the playing field. No evidence was offered as to whoactually phoned for the ambulance and police.

Other witnesses testified to the events surrounding the attack.Michael Putrow, plaintiffs' nephew, was 13 years old in July 1990.Putrow testified that, during the third inning, while he was sittingin the third base bleachers, he saw George Loy, Sr., come out ofthe dugout, yelling and waving his fist. During the sixth inning,George Loy, Sr., became more irate and came out of the dugout towithin three feet of John Hills. Neither Ted Loy nor the umpirestold George Loy, Sr., to stop yelling and swearing. At the end ofthe sixth inning, George Loy, Sr., attacked Hills from behind andbegan punching and kicking him. Ted Loy and George Loy, Jr.,then joined in the attack. According to Putrow, the first baseumpire saw the attack begin, turned, and then walked away. Also,according to Putrow, the home plate umpire did not come down tothe first base area until after John Hills had been struck with thebat. Putrow stated that he saw his aunt, Patricia Hills, run to phonefor an ambulance. According to Putrow, the ambulance and policearrived 20 to 25 minutes later. Putrow also stated that the entireattack, including the "lulls," lasted about 10 minutes.

Clare Masterson, Patricia Hills mother, offered testimonywhich generally corroborated plaintiffs' testimony. RebeccaDeVerdier, who was 15 years old at the time of the attack and whowas sitting in the third base bleachers, also generally corroboratedplaintiffs' testimony. DeVerdier stated that she believed the entireattack lasted from 10 to 15 minutes.

Harry Keeler, Lemont's third base coach, also testified at trial.Keeler stated that he did not hear any of the Loys say anythingrude or threatening to John Hills prior to the attack. Keeler alsostated that John Hills did not approach him during the game andtell him that George Loy, Sr., was shouting and swearing. Keelerwas also unaware of anyone complaining to the umpires aboutGeorge Sr.'s conduct before the attack.

Keeler testified that, when the sixth inning ended, he waswalking back to the dugout on the third base side of the field whenhe heard one of the Lemont players say, "Look at Mr. Hills."Keeler turned around and saw George Loy, Sr., on top of JohnHills, "swinging wildly." Keeler told Ray Chadorowski to "keepthe kids in the dugout." Keeler then ran over to first base, tackledGeorge Loy, Sr., grabbed him, and dragged him over to the fencethat surrounded the field.

Keeler asked George Loy, Sr., what was going on and, aftera few moments, asked if he had calmed down. Keeler felt Loy'sbody relax. Assuming that the attack was over, Keeler releasedLoy. Keeler stated that someone then hit him on the left side of thehead. George Loy, Sr., then turned around, pulled Keeler's jacketover his head, and started punching him. Keeler stated that hesomehow managed to get Loy away from him and that things then"calmed down for a second or two." Keeler then saw George Loy,Jr., hit John Hills with a baseball bat.

Keeler estimated that the entire attack on John Hills lastedbetween three and four minutes. He also estimated that the policearrived five to seven minutes after the attack began. Keeler statedthat he did not see the umpires intervene in the attack but that healso "wasn't really paying attention to what they were doing."

Scott Van Wagner testified that he was 23 years old in thesummer of 1990 and that he was the volunteer, home plate umpirefor the July 30 game. Van Wagner stated that, prior to the attack,he did not notice any threats, yelling or other improper conduct byany of the coaches or players. Also, before the attack, no onecomplained to him about the conduct of George Loy, Sr.

Van Wager testified that, after the sixth inning ended, heturned around to speak to the announcer behind the home platebackstop. After a few minutes, either the announcer, or someonein the area of the announcer, said there was a fight going on. VanWagner turned, saw what he believed to be a fight near first base,and ran down to that area. Contradicting Patricia Hills' testimony,Van Wagner stated that he grabbed George Loy, Sr., who wasrolling on the ground with John Hills, picked him up, and carriedhim to the dugout. He also called out to other adults to phone forthe police.

As soon as Van Wagner put George Loy, Sr., in the dugout,he turned around and saw George Loy, Jr., standing over JohnHills with a baseball bat. Harry Keeler was also standing nearby.Van Wagner stated that he ran after George Loy, Jr., who said,"I'm done," and then threw the bat away. Van Wagner picked upGeorge Loy, Jr., and carried him to the dugout. According to VanWagner, the police arrived less than five minutes later.

Van Wagner stated that he did not see the first punchesthrown at John Hills and did not see whether Ted Loy joined in thefirst part of the attack. Van Wagner also did not see Keeler grabGeorge Loy, Sr. According to Van Wagner, if Keeler grabbedGeorge Loy, Sr., he would have had to have done so before VanWagner first turned around.

Larry Laduca corroborated Van Wagner's testimony aboutrestraining George Loy, Jr., after John Hills was struck with thebaseball bat. Laduca stated that he managed one of the baseballteams sponsored by the Justice Willow Springs Little League. Atthe time of the attack, Laduca was watching a Little League gamethat was taking place on the field adjacent to the Bridgeview andLemont game. Laduca stated that, as he was watching the othergame, he heard one of the "Willow Springs mothers" near theconcession stand yelling that there was fight. Laduca ran over tothe field on which the Bridgeview and Lemont game was beingplayed and went through a gate in the outfield fence. As hereached the first base area, Laduca saw John Hills lying on theground. He also saw Van Wagner running after George Loy, Jr.,who was holding a baseball bat. Van Wagner told Laduca to "Getto the dugout and don't let anyone out." Laduca went to the dugoutand saw members of the Bridgeview team crying and saying that"all they wanted to do was play baseball and we have to go and putup with this." According to Laduca, Van Wagner brought GeorgeLoy, Jr., into the Bridgeview dugout. All three Loys were thenkept in the dugout until the police arrived.

Ed Jalovec, the first base umpire, testified via videotapeevidence deposition. Jalovec stated that he could not recall if hehad been paid to umpire the July 30 game or if he had volunteered.In contradiction to plaintiffs' witnesses, Jalovec stated that he didnot see the beginning of the attack on John Hills, and that theattack was over quickly. Jalovec stated that he was facing theplaying field as the inning of the attack was ending. After the lastout was made, Jalovec turned toward the first base foul line. Atthat time, according to Jalovec, John Hills was already on theground and the Bridgeview coaches and manager were in theBridgeview dugout. Hills' wife and another coach from Lemontthen came running over to Hills. Jalovec stated that he did not seeanyone strike Hills with a bat and that he saw no further attacks onHills after he turned toward first base.

Joseph Kalafut testified that he was the announcer andscorekeeper at the July 30 game and that he was a member ofJustice's governing board. Kalafut explained that the JusticeWillow Springs Little League is a nonprofit corporation with avolunteer board of 8 to 10 persons. Justice owned the playing fieldon which the game was held, as well as a concession stand and asecond, smaller baseball field adjacent to the first.

Kalafut explained that Justice held a baseball tournament atthe end of July to give some of the children additional playingexperience since their regular baseball season ended in thebeginning of July. The tournament also generated revenue forJustice, with money being made through the sale of concessions offood such as hot dogs and soda pop. The tournament was run bythe Justice board members and parent volunteers. The $125entrance fee charged to the teams was used to pay for trophies thateach team received, for food that the players and umpires weregiven after the games, and possibly for the services of the umpires.Any profit left over from the entrance fee was "nominal." Duringa tournament, Justice would have both paid and volunteer umpires.In 1990, paid umpires received $5 to $10 a game. No admissionfee was charged to people who came to watch the games.

Kalafut stated that, at the July 30 game, he was seated on theelevated announcer's platform behind the fence in back of homeplate. At some point during the game, between innings, Kalafutwas talking to the home plate umpire when he noticed two mennear first base "engaged in a struggle of some sort." Kalafut toldthe umpire that he thought there was "a problem going on downthere." Kalafut left the booth and immediately went down to thefirst base area. According to Kalafut, when he got to the first basearea, John Hills was on the ground and the attack was over.Kalafut stated that he did not make any announcement to stop thefighting when he first became aware of it because he did notbelieve it was a "positive thing" to announce that there was a fightin front of the children and adult spectators.

Bridgeview board members Ronald Mizwicki and GregoryKlein testified regarding the Bridgeview organization and itsrelation to the Loys. Mizwicki stated that Bridgeview was anunincorporated, nonprofit association whose goals were to teachits players good sportsmanship and how to play Little Leaguebaseball. The Bridgeview governing board consisted of apresident, a vice-president, a secretary, a treasurer and anequipment manager. The board and team managers werevolunteers. In 1990, Mizwicki was the acting president ofBridgeview. Mizwicki stated that he appointed Ted Loy to be themanager of the team that attended the July 30 game after Loyvolunteered to take the position. Mizwicki also stated that, priorto appointing Ted Loy manager, he had never heard anythingnegative about him. Loy had managed for Bridgeview in the pastwithout incident and, as far as Mizwicki knew, he had a goodreputation in the community. Volunteer managers were difficult tofind and, when Ted Loy volunteered to manage the 1990 team,Mizwicki accepted.

Mizwicki acknowledged that Ted Loy represented Bridgeviewat the July 30 game, as none of the board members were inattendance. However, Ted Loy, and other team managers, did notrun Bridgeview or set its policies. Mizwicki stated that Ted Loyselected George Loy, Sr., and George Loy, Jr., as his assistantcoaches and that he had the authority to do so under Bridgeview'srules. Mizwicki further stated that Bridgeview managers wereexpected to conduct themselves properly at all games and that theywere expected to supervise and control the conduct of their playersand coaches during games.

Gregory Klein generally corroborated Mizwicki's testimony.Klein stated that, when the Bridgeview board learned of Ted Loy'sattack on John Hills, the board barred him from the Little League.Because George Loy, Sr., and George Loy, Jr., were not membersof Bridgeview, the board could not take any action against them.

Following the attack on John Hills, plaintiffs filed a complaintin the circuit court of Cook County against the three Loys,Bridgeview and Justice. As ultimately amended, plaintiffs'complaint alleged a theory of direct negligence againstBridgeview, specifically, that Bridgeview was negligent in failingto supervise and control its coaches and manager. In addition, thecomplaint alleged that Justice was negligent in failing to protectJohn Hills from the attack. The complaint also alleged that theLoys struck and injured John Hills. On June 5, 1995, the trial courtentered an order of default against the Loys for failure to answeror otherwise plead.

After the evidence at trial was heard, the jury was instructedthat Ted Loy, George Loy, Sr., and George Loy, Jr., had defaultedand that all of plaintiffs' allegations had been admitted againstthem. The jury was also instructed on plaintiffs' theories ofliability with respect to Bridgeview and Justice and was told thatBridgeview and Justice had a duty to exercise ordinary care for thesafety of John Hills.

The jury returned verdicts in favor of plaintiffs, awardingJohn Hills $632,710 and Patricia Hills $125,000. The juryapportioned fault equally between Bridgeview and Justicepursuant to section 2-1117 of the Code of Civil Procedure (735ILCS 5/2-1117 (West 1994)). The trial judge did not permit thejury to include the Loys in the apportionment of fault. Thereafter,the trial judge denied Bridgeview's and Justice's motions forjudgment notwithstanding the verdict or for a new trial.

On appeal, both Bridgeview and Justice challenged thefindings of negligence and the trial judge's decision to exclude theLoys from the apportionment of fault. With respect to Bridgeview,the appellate court acknowledged that one generally has no dutyto control the conduct of another to prevent him harming a thirdparty, but concluded that a "special relationship" existed in thecase at bar which imposed an affirmative duty upon Bridgeview tocontrol the actions of George Loy, Sr., and George Loy, Jr. Theappellate court reasoned that Bridgeview, through the person ofTed Loy, stood in a master-servant relationship with George Loy,Sr., and George Loy, Jr., and that Bridgeview had an affirmativeduty, in accordance with section 317 of the Restatement (Second)of Torts (Restatement (Second) of Torts