LAW OFFICES
OF
ANDREA LYNN RICE
A Professional Corporation
12100 Wilshire Boulevard
Suite 780
Los Angeles, California 90025
Telephone (310) 207-3717
Facsimile (310) 207-6785
OF
ANDREA LYNN RICE
A Professional Corporation
12100 Wilshire Boulevard
Suite 780
Los Angeles, California 90025
Telephone (310) 207-3717
Facsimile (310) 207-6785
www.andreariceesq.com
LIABILITY UPDATE
January 11, 2008
In Shin v. Ahn 2007 Daily Journal D.A.R 13411, the California Supreme Court held that the doctrine of primary assumption of the risk applies to non-contact sports such as golf and that being struck by a carelessly hit ball is an inherent risk of the sport.
Plaintiff and defendant were playing golf with Jeffrey Frost at the Rancho Park Golf Course in Los Angeles. Defendant, the first of the threesome to complete the 12th hole, went to the 13th tee box. Plaintiff and Frost then finished putting and followed him. Frost took the cart path to the 13th tee box, which placed him perpendicular to, or slightly behind, defendant and to his right. Plaintiff took a shortcut, which placed him in front of defendant and to his left. Plaintiff stopped there to get a bottle of water out of his golf bag and to check his cell phone for messages. He did so even though he knew (1) that he was in front of the tee box, (2) that defendant was preparing to tee off, and (3) that he should stand behind a player who was teeing off. Defendant inadvertently “pulled” his tee shot to the left, hitting plaintiff in the temple. When struck, plaintiff was 25 to 35 feet from defendant, at a 40 to 45 degree angle from the intended path of the ball. Plaintiff claims his injuries were “disabling, serious, and permanent. . . .”
When plaintiff sued for negligence, defendant sought summary judgment, relying on the primary assumption of risk doctrine. The trial court denied summary judgment. However, the trial court later reversed itself, concluding that triable issues remained.
The Court of Appeal had affirmed, holding that the primary assumption of risk doctrine did not apply. “This holding was contrary to that in Dilger v. Moyles (1997) 54 Cal.App.4th 1452 (Dilger), in which a different district of the Court of Appeal held that being struck by a ball is a risk inherent in golf and that the primary assumption of risk doctrine applied to the case of a defendant whose errant shot struck another golfer playing a different hole. The Court of Appeal in this case distinguished Dilger on the ground that the golfer whose ball struck the plaintiff in that case was playing in a different group. Here, plaintiff and defendant were playing together. The Court of Appeal applied general negligence principles and concluded that defendant breached a general duty of care owed to a member of his own playing group by failing to ascertain where he was before teeing off. Because it also determined that plaintiff’s conduct raised issues of comparative negligence, it remanded the matter for trial on apportionment of fault.” The California Supreme Court granted review and reversed the decisions of the trial court and Court of Appeal.
The Court observed that generally, one owes a duty of ordinary care not to cause an unreasonable risk of harm to others. (Civ. Code, § 1714, subd. (a); Rowland v. Christian (1968) 69 Cal.2d 108, 112.) California’s abandonment of the doctrine of contributory negligence in favor of comparative negligence (Li v. Yellow Cab (1975) 13 Cal.3d 804) led this court to revisit the assumption of risk doctrine in Knight v. Jewett (1992) 3 Cal.4th 296 (Knight).
In Knight, supra, 3 Cal.4th 296, the plurality noted that there are two types of assumption of risk: primary and secondary. Under the primary assumption of risk doctrine, the defendant owes no duty to protect a plaintiff from particular harms arising from ordinary, or simple negligence. In a sports context, the doctrine bars liability because the plaintiff is said to have assumed the particular risks inherent in a sport by choosing to participate. Thus, “a court need not ask what risks a particular plaintiff subjectively knew of and chose to encounter, but instead must evaluate the fundamental nature of the sport and the defendant’s role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm.” (Knight, supra, 3 Cal.4th at pp. 313, 315-317.)
In Knight, supra, 3 Cal.4th 296, the Court stressed the chilling effect that would flow from imposing liability on touch football players for ordinary careless conduct. “ ‘[E]ven when a participant’s conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity. . . .’ Accordingly, we concluded that coparticipants’ limited duty of care is to refrain from intentionally injuring one another or engaging in conduct that is ‘so reckless as to be totally outside the range of the ordinary activity involved in the sport.’ [¶] A majority of this court since extended Knight’s application of the primary assumption of risk doctrine to other sports, such as skiing and swimming.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990.)
Plaintiff first urged the Court to repudiate the primary assumption of risk doctrine. He relied upon arguments made against it by the authors of the separate opinions in Knight, supra, 3 Cal.4th 296, 321-338. “Continuing to find those arguments unpersuasive, we reaffirm the doctrine . . .”
In Knight, supra, 3 Cal.4th 296, the Court expressly left open the question whether the primary assumption of risk doctrine should be applied to sports like golf. (Id. at p. 320, fn. 7.) Subsequently, Courts of Appeal have grappled with the issue. As noted, in Dilger, supra, 54 Cal.App.4th 1452, the plaintiff was playing one hole when she was struck by a ball hit from another. Dilger sued the other golfer, in whose favor the trial court entered summary judgment. The Court of Appeal affirmed, holding that the primary assumption of risk doctrine applied. “[T]he court’s reasoning [in Knight, supra, 3 Cal.4th 296,] in limiting active sports participants’ liability applies equally as well to the sport of golf. [¶] While golf may not be as physically demanding as . . . basketball or football, risk is nonetheless inherent in the sport. Hitting a golf ball at a high rate of speed involves the very real possibility that the ball will take flight in an unintended direction. If every ball behaved as the golfer wished, there would be little ‘sport’ in the sport of golf. That shots go awry is a risk that all golfers, even the professionals, assume when they play.”
The Court pointed out that the Court of Appeal in the present matter had concluded that golf is an active sport in which participants run the risk of being hit by an errant ball, but had declined to apply the primary assumption of risk doctrine. Rather, it distinguished Dilger, supra, 54 Cal.App.4th 1452, on the ground that the plaintiff there was struck by a ball hit from another hole, whereas Shin was struck by a ball hit by a member of his own threesome.
The Supreme Court was not persuaded that a case should turn on whether a defendant is playing with the plaintiff, or in another group. “The question of duty involves the relationship of the parties to the sport. (Knight, supra, 3 Cal.4th at p. 309.) Coparticipants have the same relationship to the sport whether they are in the same playing group or not. This analysis is consistent with our conclusion in Cheong, supra, 16 Cal.4th 1063. There the parties were not competing against each other. They were coparticipants, however, because they were both engaged in the same sport, at the same time, using a common venue. The golfers both here and in Dilger, supra, 54 Cal.App.4th 1452, were sharing the same course, just as the skiers in Cheong were using the same ski run.”
The lesson to be drawn from Knight, supra, 3 Cal.4th 296, and its progeny, as well as the weight of authority in sister states, is that the primary assumption of risk doctrine should be applied to golf. Thus, we hold that golfers have a limited duty of care to other players, breached only if they intentionally injure them or engage in conduct that is “so reckless as to be totally outside the range of the ordinary activity involved in the sport.” (Id. at p. 320, fn. omitted.)
----Andrea Lynn Rice
LIABILITY UPDATE
January 11, 2008
In Shin v. Ahn 2007 Daily Journal D.A.R 13411, the California Supreme Court held that the doctrine of primary assumption of the risk applies to non-contact sports such as golf and that being struck by a carelessly hit ball is an inherent risk of the sport.
Plaintiff and defendant were playing golf with Jeffrey Frost at the Rancho Park Golf Course in Los Angeles. Defendant, the first of the threesome to complete the 12th hole, went to the 13th tee box. Plaintiff and Frost then finished putting and followed him. Frost took the cart path to the 13th tee box, which placed him perpendicular to, or slightly behind, defendant and to his right. Plaintiff took a shortcut, which placed him in front of defendant and to his left. Plaintiff stopped there to get a bottle of water out of his golf bag and to check his cell phone for messages. He did so even though he knew (1) that he was in front of the tee box, (2) that defendant was preparing to tee off, and (3) that he should stand behind a player who was teeing off. Defendant inadvertently “pulled” his tee shot to the left, hitting plaintiff in the temple. When struck, plaintiff was 25 to 35 feet from defendant, at a 40 to 45 degree angle from the intended path of the ball. Plaintiff claims his injuries were “disabling, serious, and permanent. . . .”
When plaintiff sued for negligence, defendant sought summary judgment, relying on the primary assumption of risk doctrine. The trial court denied summary judgment. However, the trial court later reversed itself, concluding that triable issues remained.
The Court of Appeal had affirmed, holding that the primary assumption of risk doctrine did not apply. “This holding was contrary to that in Dilger v. Moyles (1997) 54 Cal.App.4th 1452 (Dilger), in which a different district of the Court of Appeal held that being struck by a ball is a risk inherent in golf and that the primary assumption of risk doctrine applied to the case of a defendant whose errant shot struck another golfer playing a different hole. The Court of Appeal in this case distinguished Dilger on the ground that the golfer whose ball struck the plaintiff in that case was playing in a different group. Here, plaintiff and defendant were playing together. The Court of Appeal applied general negligence principles and concluded that defendant breached a general duty of care owed to a member of his own playing group by failing to ascertain where he was before teeing off. Because it also determined that plaintiff’s conduct raised issues of comparative negligence, it remanded the matter for trial on apportionment of fault.” The California Supreme Court granted review and reversed the decisions of the trial court and Court of Appeal.
The Court observed that generally, one owes a duty of ordinary care not to cause an unreasonable risk of harm to others. (Civ. Code, § 1714, subd. (a); Rowland v. Christian (1968) 69 Cal.2d 108, 112.) California’s abandonment of the doctrine of contributory negligence in favor of comparative negligence (Li v. Yellow Cab (1975) 13 Cal.3d 804) led this court to revisit the assumption of risk doctrine in Knight v. Jewett (1992) 3 Cal.4th 296 (Knight).
In Knight, supra, 3 Cal.4th 296, the plurality noted that there are two types of assumption of risk: primary and secondary. Under the primary assumption of risk doctrine, the defendant owes no duty to protect a plaintiff from particular harms arising from ordinary, or simple negligence. In a sports context, the doctrine bars liability because the plaintiff is said to have assumed the particular risks inherent in a sport by choosing to participate. Thus, “a court need not ask what risks a particular plaintiff subjectively knew of and chose to encounter, but instead must evaluate the fundamental nature of the sport and the defendant’s role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm.” (Knight, supra, 3 Cal.4th at pp. 313, 315-317.)
In Knight, supra, 3 Cal.4th 296, the Court stressed the chilling effect that would flow from imposing liability on touch football players for ordinary careless conduct. “ ‘[E]ven when a participant’s conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity. . . .’ Accordingly, we concluded that coparticipants’ limited duty of care is to refrain from intentionally injuring one another or engaging in conduct that is ‘so reckless as to be totally outside the range of the ordinary activity involved in the sport.’ [¶] A majority of this court since extended Knight’s application of the primary assumption of risk doctrine to other sports, such as skiing and swimming.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990.)
Plaintiff first urged the Court to repudiate the primary assumption of risk doctrine. He relied upon arguments made against it by the authors of the separate opinions in Knight, supra, 3 Cal.4th 296, 321-338. “Continuing to find those arguments unpersuasive, we reaffirm the doctrine . . .”
In Knight, supra, 3 Cal.4th 296, the Court expressly left open the question whether the primary assumption of risk doctrine should be applied to sports like golf. (Id. at p. 320, fn. 7.) Subsequently, Courts of Appeal have grappled with the issue. As noted, in Dilger, supra, 54 Cal.App.4th 1452, the plaintiff was playing one hole when she was struck by a ball hit from another. Dilger sued the other golfer, in whose favor the trial court entered summary judgment. The Court of Appeal affirmed, holding that the primary assumption of risk doctrine applied. “[T]he court’s reasoning [in Knight, supra, 3 Cal.4th 296,] in limiting active sports participants’ liability applies equally as well to the sport of golf. [¶] While golf may not be as physically demanding as . . . basketball or football, risk is nonetheless inherent in the sport. Hitting a golf ball at a high rate of speed involves the very real possibility that the ball will take flight in an unintended direction. If every ball behaved as the golfer wished, there would be little ‘sport’ in the sport of golf. That shots go awry is a risk that all golfers, even the professionals, assume when they play.”
The Court pointed out that the Court of Appeal in the present matter had concluded that golf is an active sport in which participants run the risk of being hit by an errant ball, but had declined to apply the primary assumption of risk doctrine. Rather, it distinguished Dilger, supra, 54 Cal.App.4th 1452, on the ground that the plaintiff there was struck by a ball hit from another hole, whereas Shin was struck by a ball hit by a member of his own threesome.
The Supreme Court was not persuaded that a case should turn on whether a defendant is playing with the plaintiff, or in another group. “The question of duty involves the relationship of the parties to the sport. (Knight, supra, 3 Cal.4th at p. 309.) Coparticipants have the same relationship to the sport whether they are in the same playing group or not. This analysis is consistent with our conclusion in Cheong, supra, 16 Cal.4th 1063. There the parties were not competing against each other. They were coparticipants, however, because they were both engaged in the same sport, at the same time, using a common venue. The golfers both here and in Dilger, supra, 54 Cal.App.4th 1452, were sharing the same course, just as the skiers in Cheong were using the same ski run.”
The lesson to be drawn from Knight, supra, 3 Cal.4th 296, and its progeny, as well as the weight of authority in sister states, is that the primary assumption of risk doctrine should be applied to golf. Thus, we hold that golfers have a limited duty of care to other players, breached only if they intentionally injure them or engage in conduct that is “so reckless as to be totally outside the range of the ordinary activity involved in the sport.” (Id. at p. 320, fn. omitted.)
----Andrea Lynn Rice
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