It’s a jungle out there when compared to regular golf.
By James Moss
The plaintiff, a business invitee of the defendant, Seven Springs Mt. Resort, Inc., rode a ski lift to play disc golf at the top of the mountain. While playing, she slipped on gravel and fell, injuring her ankle.
She filed suit for her injuries, but the trial court dismissed her claims on summary judgment. Seven Springs argued that the condition of the slope that allegedly caused her fall was open and obvious. The plaintiff appealed to the Superior Court of Pennsylvania, which remanded the case back to the trial court.
In evaluating whether the case should proceed, the appellate court closely analyzed the “open and obvious” defense. It determined that Seven Springs owed the plaintiff a duty of care while she was walking on the mountain, where slipping on dirt or gravel was possible. What the defendant characterized as obvious was not viewed as such by the appellate court—or, to some extent, even by the defendant itself.
The court first started by defining negligence under Pennsylvania law.
(1) a duty or obligation recognized by the law that requires an actor to conform his actions to a standard of conduct for the protection of others against unreasonable risks; (2) failure on the part of the defendant to conform to that standard of conduct, i.e., a breach of duty; (3) a reasonably close causal connection between the breach of duty and the injury sustained; and (4) actual loss or damages that result from the breach.
Pennsylvania applies the 5-part test for determining negligence. Here, the court focused on the duty Seven Springs owed to the plaintiff, the first step of the test.
Since the plaintiff was a business invitee, someone invited by Seven Springs to be on the land for Seven Springs’ benefit, Seven Springs owed the plaintiff the highest duty of care. Because the duty owed was high, Seven Springs as the owner of the land, had a duty to protect the plaintiff from known dangers as well as it had a duty to discover dangers that it did not know about that could be found with reasonable care.
Thus, the duty of care it owed to her was the “highest duty owed to any entrant upon land.” As such, Ms. Robinson “was not required to be on alert to discover defects which were not obvious.” Instead, it was incumbent upon Seven Springs to protect her “not only against known dangers, but also against those which might be discovered[by the landowner] with reasonable care.”
The limitation on this duty came from the Restatement of Torts (Second).
…[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
The court supported its reasoning with the Restatement (Second) of Torts § 343 comment b.
b. The word “known” denotes not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves. Thus [,] the condition or activity must not only be known to exist, but it must also be recognized that it is dangerous, and the probability and gravity of the threatened harm must be appreciated. “Obvious” means that both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment.
The court then added comment from the Restatement (Second) which further divides the duties of a landowner.
f. There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection.[*7] This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.
The court noted a “dearth” of relevant golf course cases, but relied on a Pennsylvania case in which a fan was struck by a baseball while leaving her seat. Because the fan had to turn her head to see where she was going, the oncoming baseball was not considered open and obvious. The court emphasized that it is not enough for a business invitee to be able to see a danger; the danger must remain visible at all times the invitee is near it. Even if the invitee momentarily loses focus, the condition cannot be deemed open and obvious if it becomes obscured at any point. In other words, the danger must be continuously visible, both physically and visually.
The court further found that playing disc golf—or searching for a disc—constituted a distraction that defeated the open and obvious defense and placed a duty on Seven Springs to maintain safe trails.
Disc golf, however, is inherently played in environments far removed from the manicured conditions of traditional golf courses. Trees and uneven terrain are natural features, and courses typically receive minimal maintenance. In many cases, players can barely see the basket (the “hole”), let alone chart a clear path to it or easily locate their disc.
As a result of this decision, the Pennsylvania court effectively presents course owners with two options: significantly alter the terrain or eliminate the course. Because a disc can land anywhere between the player and the basket, the entire area—at least for business invitees—would need to be smooth, visible, and free of hazards. While such expectations would be unusual for traditional golf courses, this ruling suggests that disc golf operations in Pennsylvania may now face that standard.
