Painter Did Not Assume Risk of Getting Hit by Golf Ball

Dec 22, 2006

A state court judge in Oklahoma has denied a golfer’s motion for summary judgment in a case where her errant tee shot injured a painter, who was working at a house adjacent to the golf course.
Specifically, the court held that while the plaintiff might have assumed the risk had he been on the golf course, the fact that he was out-of-bounds on private property left open key questions about whether the defendant golfer was negligent.
Plaintiff Lonnie Thomas was painting a house that bordered The Greens Country Club golf course. The incident occurred when he went behind the house, near the golf course, to clean his paint brushes.
About that time, the first member of a threesome teed off. That golfer yelled, “Fore,” when the ball moved in the plaintiff’s direction. However, the plaintiff allegedly did not hear the warning.
Next on the tee was plaintiff Diane C. Wheat. Wheat noticed the plaintiff was still in the backyard. She teed off, anyway. The ball hooked and headed in the direction of the plaintiff. Along with her fellow golfers, she yelled, “Fore!”
The plaintiff, who claimed he never heard the warning, was hit in the mouth, suffering an injury. He sued, claiming that the defendant was negligent. Wheat moved for summary judgment spawning the instant opinion.
The court noted that the plaintiff responded to the defendant’s motion by noting that the defendant had testified that she hits a ball out of bounds once every two rounds, and compensates for a natural tendency to hit the ball to the right by changing her grip, often producing a shot that goes left. He also claimed that the defendant should have given the warning before hitting the shot, instead of after. Finally, Plaintiff asserts that he did not assume the risk of injury.
“While the golf ball certainly did not go where Defendant intended, and Defendant may have negligently played the shot, a negligent act is not necessarily actionable negligence. Dirickson v. Mings, 1996 OK 2, P8, 910 P.2d 1015, 1018,” wrote the court.
“Liability for negligence typically occurs when there is a breach of a duty to another. Whether a duty exists presents a question of law which depends on the relationship between the parties and the general risks involved in the common undertaking. Wofford v. Eastern State Hosp., 1990 OK 77, 795 P.2d 516. In Wofford, the Oklahoma Supreme Court stated that whether a defendant stands in such a relationship to a plaintiff that the law will impose an obligation of reasonable conduct for the benefit of a plaintiff is a matter of law. Id. at P10, 795 P.2d at 519. The Court quoted Union Bank of Tucson v. Griffin,1989 OK 47, P12, 771 P.2d 219, 222, wherein it stated:
“’Duty of care is not a concept that arises only by statute . . . . Whenever a person is placed in such a position with regard to another that it is obvious that if he did not use due care in his own conduct he will cause injury to the other, the duty at once arises to exercise care commensurate with the situation in order to avoid such injury.’”
The court elaborated that “perhaps the most important consideration in determining whether a duty exists is forseeability. The general rule is that ‘a defendant owes a duty of care to all persons who are forseeably endangered by his conduct with respect to all risks which make the conduct unreasonably dangerous.’ Wofford, 1990 OK 77 at P11, 795 P.2d at 519 (internal quotation marks omitted).”
Forseeability and golf, however, are not necessarily compatible.
“While it is forseeable that a golf ball may be errantly hit, even by the most competent golfer, it is not always forseeable that it will go in a certain place, or travel outside the bounds of the course, or endanger a particular person or class of persons. Negligently driving a golf ball does not lead to liability in the same way that negligently driving an automobile does. A golfer is only required to exercise ordinary care for the safety of persons reasonably within the zone of risk or danger, and the golfer has no duty to those persons who are not in the line of play, if danger to them cannot be reasonably anticipated. Thus, it has been stated that a bad golf shot causing injury to another does not per se establish negligence, but may constitute negligence where, for example, the defendant has a propensity to shank golf shots. 27A Am. Jur. 2d Entertainment and Sports Law § 89 (1996).
“These principles have generally been followed by other state courts. See Holliday, David M, Annotation, “Liability To One Struck By Golf Ball,” 53 A.L.R. 4th 282 (1987). For example, in Rinaldo v. McGovern, 78 N.Y.2d 729, 587 N.E.2d 264, 579 N.Y.S.2d 626 (N.Y. 1991), the New York court recognized that merely because a golf ball does not travel in the intended direction does not establish a viable negligence claim. There, the errant shot broke the windshield of a car traveling on a road adjacent to the golf course. The New York court applied traditional tort liability requirements that there must exist a recognizable risk and a basis for concluding that the harm following from the consummation of the risk was reasonably preventable. The court concluded that the game of golf is such that the risk of a mis-hit golf ball is not a fully preventable occurrence. In other words, the court said the risk was foreseeable, but not preventable. Id. at 267.
“However, in Hennessey v. Pyne, 694 A.2d 691 (R.I. 1997), [**9] the Rhode Island court distinguished Rinaldo where an errant shot by a golfer (the assistant pro) hit a resident of a condominium adjacent to the golf course. The Rhode Island court held that a duty existed because of the golfer’s specific knowledge that his best chance of doing well on the hole depended upon hitting the ball as close to the adjacent condo as possible, that the condo was within “striking distance,” that the condo was often hit, and that the particular plaintiff was a continuing presence within the condo. Id. at 698. These decisions illustrate that a golfer’s duty depends on the particular facts of each case and may sometimes extend beyond the intended flight of the ball to encompass a wider zone of risk. See also Bartlett v. Chebuhar, 479 N.W.2d 321 (Ia. 1992).
”There is a minority view, including the Missouri court in Cavin v. Kasser, 820 S.W.2d 647, 650-51 (Mo. Ct. App. 1991), which limits a golfer’s duty – in that case, to warn – only to those persons in the intended line of flight. However, we find the majority rule more consistent with Oklahoma’s “zone of risk” concept. We find that the zone of risk rule imposes upon golfers a duty to warn persons who are within the flight path specifically intended by the golfer, or who are within the area in which a golfer has a propensity to shank shots.”
Extrapolating from the case law, the court writes that “the mere fact that Defendant was aware of Plaintiff’s presence near the boundary of the golf course before she hit her shot is not enough to establish a duty of care. However, the fact that she had a propensity to hit shots that went left and occasionally outside the course boundary might lead a reasonable person to conclude that Plaintiff, who was to the left and just outside the course boundary, was within the zone of risk. Likewise, the fact that a fellow golfer had teed off immediately before Defendant and had also hit a ball in Plaintiff’s direction did not make it more likely that Defendant would do so. However, the fact that the other golfer’s ‘fore’ warning had been ineffective might lead a reasonable person to conclude that a louder warning, different warning, or warning before the golf shot was necessary. Thus, factual questions exist which preclude the granting of summary judgment.”
The court further summarized that “there is a presumption that a plaintiff assumed the risk of injury from an errant golf ball if he or she is within the bounds of a golf course, but no such presumption applies if the plaintiff is outside the boundary. In such a case, the defendant has the burden of proving this affirmative defense.”
Lonnie Thomas v. Diane C. Wheat; Ct. Civ. App. Okla., Div. 4; Case No. 102,963, 2006 OK CIV APP 106; 2006 Okla. Civ. App. LEXIS 81; 8/6/06
Attorneys of Record: (for plaintiff) James M. Reid, Edmond, Oklahoma. (for defendant) Tim D. Cain, Ryan R. Chaffin, Wilson, Cain & Acquavita, Oklahoma City, Oklahoma,


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