California Supreme Court Wants More Facts in Errant Golf Shot Case

Sep 28, 2007

The Supreme Court of California has affirmed the ruling of the state’s lower courts that too many questions remain in an assumption of risk case about whether a golfer acted “recklessly” when he struck a golf ball that hit another golfer in his group, the plaintiff.
The court began its opinion by focusing on Knight v. Jewett (1992) 3 Cal.4th 296 (Knight), in which it considered the duty of care that should govern the liability of sports participants. Specifically, that case addressed the limited duty of care that sports participants owe their coparticipants, unless they intentionally injure them or “engage in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.” The court continued that the instant case represents “the next generation of our Knight jurisprudence.”
The incident occurred on the Rancho Park Golf Course in Los Angeles. The defendant, Jack Ahn, was the first of a threesome to complete the 12th hole. So he went to the 13th tee box. The plaintiff took a short cut to the 13th tee box, which placed him in front of the defendant. While there, he stopped to get a bottle of water out of his golf bag and to check his cell phone for messages.
“He did so even though he knew (1) that he was in front of the tee box, (2) that defendant was preparing to tee off, and (3) that he should stand behind a player who was teeing off,” wrote the court.
Ahn inadvertently “pulled” his tee shot to the left, hitting the plaintiff in the temple. The plaintiff claimed he suffered injuries that were “disabling, serious, and permanent . . . .”
The court wrote that the parties disputed “whether (the) defendant knew where plaintiff was standing when he teed off. (The) plaintiff alleged that he and defendant made eye contact before (the) defendant hit his shot. However, his accounts of just when that eye contact occurred were inconsistent.”
The plaintiff sued for negligence. The defendant sought summary judgment, relying on the primary assumption of risk doctrine. The trial court initially agreed that the doctrine applied, found no triable issue of material fact, and granted summary judgment. However, the trial court later reversed itself, concluding that triable issues remained. The Court of Appeal affirmed, holding that the primary assumption of risk doctrine did not apply.
As the California Supreme Court began to review the lower court’s opinion, it reviewed Knight and a plethora of other cases that weigh the application of the assumption of risk doctrine.
The Knight court wrote that:
“While golf may not be as physically demanding as . . . basketball or football, risk is nonetheless inherent in the sport. Hitting a golf ball at a high rate of speed involves the very real possibility that the ball will take flight in an unintended direction. If every ball behaved as the golfer wished, there would be little ‘sport’ in the sport of golf. That shots go awry is a risk that all golfers, even the professionals, assume when they play.
“Holding participants liable for missed hits would only encourage lawsuits and deter players from enjoying the sport. Golf offers many healthful advantages to both the golfer and the community. The physical exercise in the fresh air with the smell of the pines and eucalyptus renews the spirit and refreshes the body. The sport offers an opportunity for recreation with friends and the chance to meet other citizens with like interests. A foursome can be a very social event, relieving each golfer of the stresses of business and everyday urban life. Neighborhoods benefit by the scenic green belts golf brings to their communities, and wild life enjoy and flourish in a friendly habitat. Social policy dictates that the law should not discourage participation in such an activity whose benefits to the individual player and to the community at large are so great.”
The California Supreme Court in the instant case noted that “the lesson to be drawn from Knight, supra, 3 Cal.4th 296, and its progeny, as well as the weight of authority in sister states, is that the primary assumption of risk doctrine should be applied to golf. Thus, we hold that golfers have a limited duty of care to other players, breached only if they intentionally injure them or engage in conduct that is “so reckless as to be totally outside the range of the ordinary activity involved in the sport.” (Id. at p. 320, fn. omitted.)
It continued that “summary judgment was properly denied because there are material questions of fact to be adjudicated.
“In determining whether defendant acted recklessly, the trier of fact will have to consider both the nature of the game and the totality of circumstances surrounding the shot. In making a golf shot the player focuses on the ball, unlike other sports in which a player’s focus is divided between the ball and other players. That is not to say that a golfer may ignore other players before making a shot. Ordinarily, a golfer should not make a shot without checking to see whether others are reasonably likely to be struck.11 Once having addressed the ball, a golfer is not required to break his or her concentration by checking the field again. Nor must a golfer conduct a head count of the other players in the group before making a shot.
“Many factors will bear on whether a golfer’s conduct was reasonable, negligent, or reckless. Relevant circumstances may include the golfer’s skill level; whether topographical undulations, trees, or other impediments obscure his view; what steps he took to determine whether anyone was within range; and the distance and angle between a plaintiff and defendant.
“Here plaintiff testified at his deposition that he and defendant made eye contact ‘as I was cutting up the hill.’ He did not make clear, however, how far he had proceeded up the hill, how far away he was from the defendant, or whether he was stationary when the eye contact occurred. At his deposition, defendant said he looked to see if the area “directly ahead” of him was clear. It is not apparent just how broad or limited that area was. This record is simply too sparse to support a finding, as a matter of law, that defendant did, or did not, act recklessly. This will be a question the jury will ultimately resolve based on a more complete examination of the facts. We do not suggest that cases like this can never be resolved on summary judgment, only that this record is insufficient to do so.
Shin v. Ahn; S.Ct.Calif.; No. S146114; 8/30/07
Attorneys of Record: (for appellant) Barry Bartholomew & Associates, Michael Maguire & Associates and Kathryn Albarian. Horvitz & Levy, Barry R. Levy, Mitchell C. Tilner and Jeremy B. Rosen. Duane Morris, John E. Gagan, Jill Haley Penwarden, Michael L. Reitzell and Paul J. Killion. (for Respondent) Knickerbocker Law Corporation, Richard L. Knickerbocker, Gregory G. Yacoubian.


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