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Law School Case Brief

Lestina v. W. Bend Mut. Ins. Co. - 176 Wis. 2d 901, 501 N.W.2d 28 (1993)


To determine whether a player's conduct constitutes actionable negligence (or contributory negligence), the fact finder should consider such material factors as the sport involved; the rules and regulations governing the sport; the generally accepted customs and practices of the sport (including the types of contact and the level of violence generally accepted); the risks inherent in the game and those that are outside the realm of anticipation; the presence of protective equipment or uniforms; and the facts and circumstances of the particular case, including the ages and physical attributes of the participants, the participants' respective skills at the game, and the participants' knowledge of the rules and customs.


Plaintiff Lestina was playing an offensive position for his team while defendant Jerger was the goalkeeper for the opposing team on April 20, 1988, when the injury occurred. Shortly before the plaintiff was injured, he had scored the first goal of the game. After his goal, plaintiff regained possession of the ball and was about to attempt a second goal when defendant apparently ran out of the goal area and collided with plaintiff. Paintiff asserted that defendant "slide tackled" him in order to prevent him from scoring. Although slide tackles are allowed under some soccer rules, this recreational league's rules prohibit such maneuvers to minimize risk of injury. Defendant claimed that the collision occurred as he and plaintiff simultaneously attempted to kick the soccer bal. Plaintiff seriously injured his left knee and leg in the collision and brought an action to recover the injuries he received from the game against defendant and his homeowners' insurance company. The parties agreed that the standard of care was negligence, but, after a judgment for plaintiff was entered, defendants sought further review.


Did the trial court err in entering judgment in favor of the offensive player?




The court affirmed the decision of the trial court, which entered judgment in favor of plaintiff against defendants, holding that actions for sports-related injuries were analyzed under three theories: 1) intentional torts, 2) willful or reckless misconduct, and 3) negligence. The appellate court determined that players were liable for intentional torts during a recreational team contact sport. The court declined to adopt a recklessness standard to analyze the liability of players. The court determined that the negligence standard was appropriate because it required a person to exercise ordinary care under the circumstances. The court noted that the fact finder should consider the type of sport, its rules, the risks inherent in the game, the presence of uniforms or protective gear, the particular circumstances of the injury, as well as the age, skill, knowledge, and physical attributes of the players.


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