A Kansas appeals court has affirmed a lower court ruling that a lightning strike that severely injured a golfer was not foreseeable by the golf facility and that it did not breach any applicable standard of care.
The incident occurred on June 14, 2001 when plaintiff Patrick Sall and a friend were playing golf at the Smiley’s Golf Complex (SGC) on the western outskirts of Kansas City. When the two men began their round at approximately 4 p.m. that day, the sky was clear and The Weather Channel appeared to show that a storm was headed out of the area.
The manager at SGC was also tracking the weather. He had already sounded the horn alerting the golfers to leave the course because of lightning once that day. When the complex was reopened at 4 p.m. that day, the skies were clear.
However, as the men began putting on the second green, Sall’s friend saw a flash of lightning. The two men paused, but decided that they would putt out on the second hole before heading back to the clubhouse.
At the same time, the manager of the golf course saw the lightning and blew the horn for two 5-second periods, rotating it so that the sound would spread across the SGC complex.
Sall’s friend was holding the flag awaiting Sall’s putt when he heard the horn. The two were walking toward the clubhouse when Sall was struck by lightning. Sall was severely injured and now requires total care.
Eighteen months later, Sall’s parents, acting as guardian for their son, sued, claiming that “SGC was negligent by failing to: properly monitor the weather; sound a timely warning; utilize lightning detection equipment; have appropriate medical equipment; and render timely and appropriate medical care.”
SGC moved for summary judgment, claiming that its warning was sufficient.
The trial court concluded that storms “are capricious and foreseeing a lightning strike is a matter of speculation.” Based on the “lack of foreseeability,” the trial court concluded that businesses do not have a duty to protect or warn patrons about lightning. The plaintiffs appealed.
“Essentially, the Salls’ case is based on premises liability law in that golf courses have a duty to warn their patrons about dangerous weather conditions and to protect those patrons from lightning injury,” wrote the appeals court.
Initially, the appeals court reviewed the plaintiffs’ argument that the Kansas courts recognize a doctrine of premises liability that is not limited to physical defects, that a force of nature can be a “dangerous condition” that would impose liability.
“The Salls contend that Patrick would have been able to protect himself had he been given sufficient warning of the imminent storm,” wrote the appeals court. “The interesting part of this contention is that Patrick and Gannon saw a lightning strike and ignored it. The second lightning strike occurred as the horn was blown when Patrick and Gannon were on the second green. Instead of immediately returning to the clubhouse, Patrick and Gannon continued to finish the hole. Patrick and Gannon made a conscious decision to finish the hole they were playing, rather than heeding the warning immediately. No one thought there was imminent danger.”
The court further noted that while the Kansas courts have not defined foreseeability of lightning strikes within the context of premises liability, a Texas court did in Macedonia Baptist Church v. Gibson, 833 S.W.2d 557 (Tex. App. 1992), where a woman was struck by lightning as she exited her church. That court concluded that the lightning strike was foreseeable because the church had installed a lightning rod, where the grounding cables were placed directly next to the walkway.
Continuing its analysis, the court wrote that it is “necessary to differentiate between the foreseeability of a thunderstorm versus the foreseeability that there would be a lightning strike directly over SGC. The Salls seem to suggest that the former is the benchmark which must be used. We disagree.
“The testimony from people who experienced the conditions on June 14, 2001, was remarkably consistent. The thunderstorm which produced the lightning that hit Patrick moved in quickly. We do not believe that persons without advanced meteorological training could have known that a lightning-producing thunderstorm would arrive moments after the sky was ‘totally clear.’
The court noted, for example, that “the Superior Court of New Jersey ruled in Maussner v. Atlantic City Country Club, Inc., 299 N.J. Super. 535, 552, 691 A.2d 826 (1997), that ‘[a] particular lightning strike is clearly unpredictable. There is no way that present technology can predict whether a bolt of lightning will strike a tree, a bush, a rock, or any of four golfers standing near them.’” 299 N.J. Super. at 552.”
The Kansas appeals court concluded by noting that there were many unknown variables, which lead us to agree with the trial court that the lightning strike at SGC was not foreseeable.
The court next turned to the plaintiffs’ argument that SGC breached its duty to timely warn of the lightning strike. The court wrote that the plaintiff had time to return to the clubhouse, which was approximately 1 quarter of a mile away.
“By all accounts, SGC provided its customers with approximately 10 minutes’ notice that lightning had been seen in the area. Gannon and Patrick saw the lightning themselves and chose to remain on the golf course. There is no evidence that SGC’s horn was not sounded early enough to allow all golfers to reach the safety of the clubhouse. Such action does not make SGC negligent.
“We have thoroughly reviewed the Sall’s arguments, and we agree with the trial court that there is no evidence the lightning bolt was in any way foreseeable, or that SGC breached any applicable standard of care. Patrick’s injury was tragic, but we do not believe SGC is responsible for his condition. The trial court correctly ruled on the Sall’s common-law negligence complaints.”
Matthew Patrick Sall et al. v. T’S, Inc., d/b/a Smiley’s Golf Complex; Court of Appeals of Kansas; No. 93,013; 8/19/05
Attorneys of Record: (for appellants) Bryson R. Cloon, of Cloon Law Firm, of Leawood. (for appellee) Steve R. Fabert, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka.
