An Ohio appeals court has granted summary judgment to a golfer who was sued by another golfer after her ball struck the other golfer in the eye. In ruling for the defendant, the court found that her conduct could not be defined as “reckless,” and thus it triggered the assumption of risk doctrine.
The incident triggering the lawsuit occurred on May 30, 2000 at the University Golf Club in Franklin Township, Portage County, Ohio. Donna M. Alexander, the plaintiff, and Kim Tullis, the defendant, were in different groups on the fifth hole. A lengthy par 4, the 5th included a depression in the fairway, where golfers can be hidden from view. Alexander and the rest of her group were in that depression, awaiting another group on the tee. Tullis thought the group on the tee was Alexander’s group. Tullis teed off, her golf ball striking Alexander in the eye, causing injury.
Alexander sued. Tullis successfully moved for summary judgment, leading to the present appeal.
“The rule of decision in this case is unquestionably provided by the companion cases of Marchetti v. Kalish (1990), 53 Ohio St. 3d 95, 559 N.E.2d 699, and Thompson v. McNeill (1990), 53 Ohio St. 3d 102, 559 N.E.2d 705,” wrote the court.
“In Marchetti, the Ohio Supreme Court held:
“‘where individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant’s actions were either ‘reckless’ or ‘intentional’ as defined in Sections 500 and 8A of the Restatement of Torts 2d.” Id. at syllabus.’
“In Thompson, a case arising from a golfing injury and decided the same day as Marchetti, the Supreme Court held:
“‘1. Between participants in a sporting event, only injuries caused by intentional conduct, or in some instances reckless misconduct, may give rise to a cause of action. There is no liability for injuries caused by negligent conduct.
“’2. A player who injures another player in the course of a sporting event by conduct that is a foreseeable, customary part of the sport cannot be held liable for negligence because no duty is owed to protect the victim from that conduct.’”
Relating that case law to the instant case, the court noted that Alexander did not allege intentional conduct by Tullis in striking her with the golf ball and that she admitted in her deposition that she did not think Tullis sought to injure her. “Thus,” wrote the court, “liability could only attach to Tullis’ actions if they were reckless.
“Quite simply, there is nothing of record in this case indicating that Tullis’ conduct rose above the level of negligence, to that of recklessness, in the context of playing golf.
“If a golfer knows another is within the line of flight of his shot and fails to offer the customary warning of ‘fore,’ liability might accrue. Such conduct could amount to reckless indifference to the rights of others. (Emphasis added.) Thompson at 104.
“In this case, all of the evidence on the record shows that Tullis did look before taking her shot, and did not see anyone within her range. Her mistaking the group on or near the green, for that of Alexander, and failure to recognize that a group might be in the depression on the fairway, might well be negligent. But to reach recklessness, in the context of golf, there would have to be some evidence that Tullis acted, or failed to act, in a manner consistent with the rules and expectations of golf, and thus created an unreasonable risk to another. There is no such evidence herein.”
Donna M. Alexander v.Kim Tullis; Ct.App.Ohio, 11th App. Dist., Portage Co.; Case No. 2005-P-0031; 2006 Ohio 1454; 2006 Ohio App. LEXIS 1290; 3/24/06
Attorneys of Record: (for plaintiff) Timothy R. Thomas, Ravenna, OH. (for defendant) Joseph K. Oldham, Akron, OH.
