In a majority decision, a California appeals court has affirmed a trial court’s ruling that granted a motion for a new trial to a plaintiff, who sued a fellow golfer after he was hit in the head by the golfer’s tee shot.
The panel held specifically that the defendant’s failure to first locate the plaintiff, who was playing in the same group, before teeing off increased “the sport’s inherent risks” and voided the assumption of risk defense.
The incident occurred on August 10, 2003, when plaintiff Johnny Shin was playing as part of a threesome with the defendant Jack Ahn and another man, Jeffrey Frost, at Rancho Park Golf Course. After completing the 12th hole, the plaintiff walked over to the lower tee box on the 13th hole and prepared to tee off. Meanwhile, the defendant and Frost were practicing their putting on the green at the 12th hole.
Ahn eventually went to the 13th hole and prepared to tee off from one of the elevated tee boxes. After striking the ball, he looked up to see Shin approximately 25 to 35 feet away. His golf ball hit Shin in the head.
Shin sued for negligence. The defendant successfully moved for summary judgment on the grounds that the plaintiff assumed the risks inherent in the sport of golf. The trial court reasoned that the doctrine of primary assumption of risk barred Shin’s action, since by going out on the golf course Shin assumed the risk of being hit by a ball.
Shin moved for a new trial on May 12, 2005, asserting that the appellant had failed to plead assumption of risk as an affirmative defense. The trial court did reverse itself, noting that facts previously not considered “seemed to raise several possible contributory negligence issues.”
The defendant appealed.
In its analysis, the appeals court zeroed in on the application of the primary assumption of risk doctrine to golf.
In particular, Dilger v. Moyles (1997) 54 Cal.App.4th 1452 [63 Cal. Rptr. 2d 591] (Dilger) “held that the primary assumption of risk doctrine barred a golfer’s suit against another golfer, after the former was hit by a golf ball being shot from an adjacent fairway. The court concluded that the risk of errant shots was inherent in the sport and that ‘[h]olding participants liable for missed hits would only encourage lawsuits and deter players from enjoying the sport.’ (Id. at p. 1455.) The court further rejected the argument that the defendant golfer’s failure to comply with golf etiquette by warning of the shot did not equate with a breach of any duty, explaining: ‘When the activity involved is an inherent risk of a sport, a participant owes no duty to co-participants unless he “intentionally injures another player or engages in reckless conduct that is totally outside the range of the ordinary activity involved in the sport.” [Citation.] We do not believe the failure to yell “fore” is that reckless or intentional conduct … .’ (Id. at p. 1456.)’
“Dilger, in turn, relied on Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127 [40 Cal. Rptr. 2d 249] (Morgan). There, a golfer brought an action against a golf course after being hit by an errant ball from a neighboring fairway. He asserted that the golf course breached its duty to provide him a reasonably safe golf course, and in so doing, unreasonably increased the inherent risks in the sport of golf. (Id. at pp. 131-132.) Reversing summary judgment in favor of the golf course, the appellate court concluded that a golf course owes a duty of care toward a golfer to provide a reasonably safe course and that ‘[t]his duty requires the golf course owner ‘to minimize the risks without altering the nature of the sport.’(Id. at p. 134.) In view of the existence of a duty, the case was one of secondary assumption of risk and inappropriate for summary judgment given evidence that could support a finding that the course design constituted a breach of that duty. (Id. at pp. 134-135.)
“The Morgan court was careful to distinguish the relationships between golfer and golf course and between golfers themselves, noting that ‘if the relationship between the parties was one of coparticipants, i.e., if the defendant here were the golfer who hit the errant ball, this would clearly be a primary assumption of the risk case under Knight and the defendant would have no liability towards [plaintiff] because there is an inherent risk that the defendant would hit an errant ball.’ (Morgan, supra, 34 Cal.App.4th at p. 134.) It explained that while a golf course owes a duty of reasonable care in the form of providing a reasonably safe course, ‘[a]s between golfers, the duty is to play within the bounds of the game; to not intentionally injure another player or to engage in conduct “that is so reckless as to be totally outside the range of the ordinary activity involved in” golf.’ (Ibid.)”
The appeals court was careful to distinguish the instant case from American Golf, Dilger and Morgan.
“The circumstances here do not involve a golfer being hit by an errant ball from another fairway. Rather, the undisputed evidence submitted on summary judgment showed that appellant, who was in the same threesome as Shin, failed to establish Shin’s whereabouts at the time he teed off. He conceded that there was ‘[n]o particular reason’ why he did not wait to tee off until he knew where Shin was standing.”
The court likened the case to Yancey v. Superior Court (1994) 28 Cal.App.4th 558 [33 Cal. Rptr. 2d 777] (Yancey).
“In Yancey, the plaintiff suffered injuries after being hit by a discus in a college physical education class; she had gone onto the field to retrieve her discus and the defendant, who was throwing next, failed to observe the field before his throw. (Yancey, supra, 28 Cal.App.4th at p. 561.) Reversing summary judgment in favor of the defendant, the appellate court held that the doctrine of primary assumption of risk was inapplicable because the defendant ‘owed a duty of care to Yancey to ascertain that the target area was clear before he commenced his throw.’ (Id. at p. 566.)
“In reaching this conclusion, the court found that application of the primary assumption of risk doctrine to a sport generally requires that two questions be answered affirmatively: ‘First, is the careless conduct of participants an inherent risk of the sport? Second, will imposition of a legal duty, with potential liability, alter the nature of the sport or chill participation in it?’ (Id. at p. 565.)”
In both that case and the instant one, the court responded with a no, which guided its decision to affirm the grant of a new trial.
Johnny Shin v. Jack Ahn; Ct. App. Calif., 2s App. Dist., Div. 2; B184638; 2006 Cal. App. LEXIS 1126; 7/21/06
Attorneys of Record: (for Defendant) Barry Bartholomew & Associates and Kathryn Albarian; (for Plaintiff) Knickerbocker Law Corporation, Richard L. Knickerbocker, Gregory G. Yacoubian; Michael H. Silvers, a Law Corporation, and Michael H. Silvers.
