In a majority decision, the Supreme Court of Iowa has affirmed a lower court’s handling of a case in which a golfer, who was hit by an errant tee shot on a municipal golf course, successfully sued the City of Des Moines and was awarded damages in a jury trial.
The incident that led to the litigation occurred on June 5, 2000 during a golf outing at the City of Des Moines-owned Waveland Golf Course. Plaintiff Richard C. Summy was on the 18th hole when he was struck in the eye by a golf ball, which was hit from the tee on the first hole.
Summy, who was seriously injured, sued the City, alleging “it had designed, operated, and maintained the Waveland Golf Course in an unreasonably dangerous condition in that a golfer engaging in golfing activities on the 18th golf hole was at unreasonable risk of being struck by a golf ball struck by a golfer from the tee box of the first hole of the golf course.”
The City answered, raising several affirmative defenses, including comparative fault, sole proximate cause, and immunity under Iowa Code chapter 670 (1999).
Among the interesting pre-trial motions was the plaintiff’s motion in limine, asking the court “to prohibit the defendant from mentioning or arguing that the actions or failure to act of the other golfer–Thomas–constituted a proximate cause of the plaintiff’s injuries. The court agreed that the other golfer’s negligence was not at issue, noting that Thomas was not a party to the lawsuit.”
During the trial, the plaintiff introduced evidence that the design of the golf course “called for a tree barrier between the 1st and 18th fairways. Although such a barrier had existed at one time, 60 to 80 mature trees in the area between these fairways died in the 1960s.”
The Supreme Court further noted that “even one of the City’s witnesses acknowledged there was a hazard in the area of fairway 18 from being hit by a shot off tee number one. Summy’s experts testified that the two fairways had overlapping areas of play and that it was absolutely foreseeable that golf balls hit from the first tee would travel into the area where Summy was hit.”
“The experts also identified several ways in which the safety in this area could have been improved. In addition, evidence was presented that the City had no inspection or safety program, and no one was responsible for identifying hazards on the course so protective measures could be implemented.”
The trial court was, however, receptive to the City’s comparative fault defense. “Summy testified that he saw individuals warming up on the number one tee, but he focused his attention on his golfing partner even though he was aware that a golfer could get hit by balls shot from adjacent fairways. Summy admitted that had he looked toward the number one tee when Thomas was teeing off, he could have seen Thomas swinging his club, as nothing would have blocked Summy’s view. On the other hand, Summy believed that if Thomas had yelled ‘fore,’ there was a possibility that Summy would have had time to react and prevent the injury. Thomas testified that he did not yell ‘fore’ when his shot veered into the 18th fairway because he had not noticed anyone in that location.”
Given those facts, the jury found both Summy and the City at fault. Summy was held 25 percent at fault, and the City was found 75 percent at fault. The trial court entered judgment for the damages found by the jury, reduced by the plaintiff’s fault.
Nevertheless, the City appealed. Among its arguments were that it had no duty to protect the plaintiff from the “ordinary and ever present risks of the sport of golf.” On this point in particular, it argued that the trial court erred when it gave instruction on liability as it relates to a party’s failure to prevent harm caused by a third party. The City argued that the jury should have been instructed on premises liability theory, or whether the golf course is liable based on the “conditions on the land.”
The Supreme Court affirmed the trial court’s instruction.
“A review of the record shows the gist of the plaintiff’s claim against the defendant was that the City, as owner and operator of the golf course, had a duty to its business invitee, Summy, to exercise reasonable care to protect Summy from physical harm caused by other golfers. The plaintiff introduced evidence that the defendant failed to exercise reasonable care because there were several ways in which golfers could have been protected from other golfers’ errant shots by making changes in the golf course in the area of the 1st and 18th fairways. The plaintiff never claimed that he was injured by a condition on the land, only that the condition of the land was such that it did not protect against injuries caused by third parties.”
Similarly, the Supreme Court dispatched with the defendant’s argument that the trail court erred by not allowing the City “to inform the jury in its opening statement that Thomas was the sole proximate cause of the plaintiff’s injury, and (2) in refusing to give an instruction on sole proximate cause.”
“… Thomas’s negligence is one of the hazards against which the City had a duty to use reasonable care to protect the plaintiff.”
Significantly, the high court also reviewed the City’s contention that it had no duty to protect Summy “from the ordinary risks inherent in the game of golf.” The court was unmoved, restating that “lawsuit was based on the City’s failure to take the ordinary precautions a reasonable golf course owner or operator would take.”
Richard C. Summy v. City Of Des Moines, Iowa; S.Ct. Iowa; No. 10 / 03-1807; 1/13/06
Attorneys of Record: (for defendant) Mark Godwin, Deputy City Attorney, Des Moines. (for plaintiff) Edward M. (Ted) Spellman and Martin E. Spellman of Spellman, Spellman, Spellman, Spellman, Kealhofer & Spellman, Perry.
