Appeals Court Wades in on the Issue of Golf Cart Accidents and the Applicable Standard of Care

Feb 17, 2017

A Michigan state appeals court has concluded that a trial court erred when it stated that the applicable standard of care for the operation of a golf cart is reckless misconduct and not ordinary negligence. Thus, it remanded the decision, and vacated a jury verdict for the defendant, for further proceedings consistent with the instant opinion.
This case arises from an accident involving a golf cart driven by Douglas Mann, which occurred while the plaintiff, Kenneth Bertin, and Mann were playing golf together on May 22, 2013.
Bertin and Mann were at the 17th hole when Mann hit his golf ball onto the green, and Bertin’s ball landed to the right of the green. Bertin then drove the cart toward his ball and parked it in the rough next to the green. He exited the cart and grabbed his putter and wedge, intending to use the latter to chip the ball onto the green. Mann remained in the cart.
Bertin laid his putter on the ground and tried to chip the ball onto the green. Bertin struck his ball too hard, and the ball rolled to the other side of the green. Bertin then picked up the putter from where he had set it on the ground and walked toward his ball. Bertin claimed that he did not walk in the path of the cart. However, Mann drove the cart into the plaintiff, striking him in the buttocks. Bertin was knocked to the ground. After the impact, Bertin rolled to the right, and the cart struck him a second time, running over his leg, according to the complaint.
Mann claimed that he lost track of where Bertin was and that the first time that he noticed him was when the impact occurred. According to Mann, the cart struck Bertin in the lower legs and knocked him over. He did not recall the cart rolling over the plaintiff’s leg.
In April 2014, Bertin sued, alleging that Mann acted “with active negligence” and “without due care and caution” when he struck him. Bertin alleged, among other things, that Mann breached his duty to safely, dependably, and reliably operate the golf cart in order to ensure his safety and, as a result, caused him to sustain serious injuries and incur significant damages.
In his answer, Mann “largely denied the plaintiff’s allegations and expressly denied the plaintiff’s allegations of negligence and carelessness,” wrote the court. “However, the defendant also raised two affirmative defenses: the event was an unforeseeable accident, and the plaintiff’s own negligence or comparative negligence was the sole cause or a contributing cause to the injuries and damages claimed by the plaintiff.”
Before the trial, the plaintiff filed a motion in limine through which he requested that the trial court hold that the defendant was negligent as a matter of law based on his deposition testimony so that the case would proceed to trial only on the issue of damages. In response, the defendant argued that the plaintiff’s filing of a motion in limine “was improper, as it was, in effect, an untimely motion for summary disposition on the issue of negligence that cited a lower—and incorrect—standard of review. As such, he argued that the trial court should deny the plaintiff’s motion and allow the issue of negligence to proceed to trial because the events that transpired on the golf course were factually disputed, essentially consisting of the plaintiff’s word against the defendant’s word. In addition, the defendant asserted that, under Ritchie-Gamester v City of Berkley, 461 Mich 73; 597 NW2d 517 (1999), ‘reckless misconduct’ was the standard of care applicable in this case because the parties were co-participants in a recreational activity when the incident occurred. The defendant further argued that the plaintiff was not entitled to a dispositive ruling on the issue of negligence since the plaintiff misstated the proper standard of care that the defendant owed to the plaintiff, and the plaintiff could not establish that the defendant was, in fact, reckless. The trial court denied the plaintiff’s motion without prejudice, explaining at the motion hearing that it believed that this issue involved factual questions for the jury to decide. It did not explicitly decide the applicable standard of care.”
Later, the parties again disputed the standard of care when they filed their proposed jury instructions, prompting the defendant “to file a motion to settle the instructions. The trial court ultimately agreed with the defendant that a reckless misconduct standard applies in this case because ‘it is involved with the game of golf.’ Accordingly, the court entered an order granting the defendant’s motion to settle the jury instructions and accepting the defendant’s proposed instructions based on the reckless misconduct standard. It later denied the plaintiff’s motion for reconsideration.”
At trial, the plaintiff conceded that the defendant was, at most, being “careless and not paying attention” when the collision occurred. Ultimately, the jury concluded that the defendant had not acted with reckless misconduct, prompting the appeal.
In its review, the appeals court noted that the case presents an issue of first impression in Michigan from the standpoint of whether the use of golf carts are an inherent part of the game and thus an injured party would have to demonstrate that the person causing the injury was reckless in their actions.
The appeals court continued, agreeing with the plaintiff that the injuries “arising from the use of a golf cart do not fall within the Ritchie-Gamester framework for two reasons: (1) the operation of a golf cart constitutes the operation of a motor vehicle, not participation in a recreational activity, and (2) the use of a golf cart, and the risks presented by a golf cart, are not inherent risks of golf.”
In support of its conclusion, the appeals court leaned on PGA Tour, Inc v Martin, 532 U.S. 661, 684-685; 121 S Ct 1879; 149 L Ed 2d 904 (2001).
“The Martin Court found that the use of golf carts would not ‘fundamentally alter the nature’ of the game of golf in the context of an American with Disabilities Act claim, and noted that the official Rules of Golf are silent as to whether players are required to walk as they travel from hole to hole, such that walking is not a fundamental component of the game,” wrote the appeals court.
“Consistent with the Supreme Court’s observations, the current version of the USGA Rules of Golf, effective January 1, 2012, still includes no provision that forbids, penalizes, or requires the use of golf carts. United States Golf Association and R&A Rules Limited, Rules of Golf.”
Given those two elements. and “the fact that there is no evidence in the instant case that the golf course where the accident occurred required the use of golf carts, we conclude that risks related to golf carts are not inherent risks of the game of golf.”
The court added that “in Forman v Kreps, 2016 Ohio 1604; 50 NE3d 1 (Ohio App, 2016), the Seventh District of the Court of Appeals of Ohio came to the same conclusion that we do and utilized similar reasoning when it considered a nearly identical issue (i.e., whether an assumption of risk instruction applied, under Ohio’s version of the recreational activities doctrine, to a case involving a plaintiff who was injured when his golfing companion hit him from behind with a golf cart).
“Therefore, we conclude that risks related to golf carts are not risks inherent in the game of golf, as the sport of golf would exist and remain virtually unchanged in the absence of golf carts. Accordingly, the trial court erred in ruling that a reckless misconduct standard of care applies in this case. Given the absence of any common-law or statutory rule imposing a higher standard, the applicable standard is ordinary negligence. … Therefore, we remand this case for further proceedings consistent with this opinion.”
Kenneth Bertin v. Douglas Mann; Ct. App. Mich.; No. 328885, 2016 Mich. App. LEXIS 2405; 12/27/16
Attorneys of Record: (For Plaintiff-Appellant) Mark R. Bendure, Grosse Pointe Park, MI. (For Defendant-Appellee) Sidney A. Klingler, Troy, MI.


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