A senior district judge from the Northern District of Mississippi has dismissed the claim of a golfer, who had sued the U.S. Federal Government, which owns the Whispering Pines Golf Course at Columbus Air Force Base, after he suffered an injury while participating in an off-beat golf tournament.
Central to the court’s ruling was its determination that the plaintiff had failed to produce any evidence that would demonstrate that the conditions created by the golf course were “unreasonably dangerous.”
The incident occurred on November 22, 2003, while plaintiff Franklin N. Davis was a civilian participant in the “Wacky Glo-Ball Golf Tournament” at the Columbus, Mississippi golf course.
The tournament was divided into two nine-hole portions, noted the court. “For the first nine holes, the participants played according to a ‘wacky’ rule in place at each hole. Among the ‘wacky’ rules were such requirements as teeing off in a chair, putting with a tennis ball, and playing opposite handed. After the first nine holes, the tournament broke for dinner. When play resumed, the participants were required to play the remaining nine holes with glow-in-the-dark golf balls.
The accident occurred when Davis and his partner, Dwain Stephens, were playing the par 3, 7th hole. “The ‘wacky’ rule at hole number seven required the players to use a slingshot apparatus to propel their golf ball toward the green, which was approximately 120 yards away. The slingshot apparatus was constructed for the previous year’s tournament by Whispering Pines’ head golf professional, Ricky Magers, and used without incident for that tournament.
“Davis and Stephens each used the slingshot, but neither of the players’ golf balls reached the green. According to Stephens’ deposition testimony, the two decided that, for their next attempt, Davis would pull back on the slingshot, and Stephens would simultaneously pull back on Davis himself by holding Davis’ belt or waistline area in an effort to add more force, and thereby more distance, to the shot.
“As Davis pulled on the slingshot, one of the bungee cords came loose from the metal pole to which it was attached and struck Davis above his right eye. Stephens phoned the pro shop, and Magers came to the scene. Magers offered to escort Davis to the hospital, but Davis declined stating that he could drive himself.”
On October 20, 2004, David filed a claim, pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq., alleging “that the defendant negligently rigged the bungee cord, thereby creating an unreasonably dangerous condition, and that the defendant failed to warn of the hidden danger of operating the apparatus.” Davis sought $500,000 in damages.
A central tenet in the plaintiff’s argument was that “the defendant’s own negligence created the dangerous condition and that the defendant knew of a dangerous condition but failed to warn its invitees.
“The first essential question to be addressed is whether an unreasonably dangerous condition existed.” Davis argued that whether the slingshot apparatus was unreasonably dangerous is a genuine issue of material fact that should be left to a jury.
However, because he has “failed to set forth even a scintilla of evidence” supporting the claim “that the slingshot was unreasonably dangerous,” he has failed “to satisfy their burden with the second element.” Thus, he is “unable to prove that the defendant breached its duty to exercise reasonable care to keep the premises in a reasonably safe condition.”
The judge added that Davis cannot “rely on the mere fact that the accident occurred in order to show that the slingshot apparatus was unreasonably dangerous. It is axiomatic that the doctrine of res ipsa loquitur is inapplicable in a premises liability context. Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994) (citing Sears Roebuck & Co. v. Tisdale, 185 So. 2d 916, 917 (Miss. 1966)).”
The judge concluded that the defendant golf course had “met its burden of showing the absence of a genuine issue of material fact, and that (Davis) has failed to designate specific facts showing otherwise.”
Franklin N. Davis et al. v. United States of America; N. D. Miss.; CIVIL ACTION NO. 1:04CV329-B-D; 2006 U.S. Dist. LEXIS 19232; 3/3/06
Attorneys or record: (for plaintiffs) Chynee A. Bailey, Orlando Rodriquez Richmond, Sr. of Richmond Simon & Abston in Columbus, MS. (for defendant) Samuel David Wright, U.S. ATTORNEY’S OFFICE in Oxford, Oxford, MS.
