JOHNNY v. JACK AHN

Filed 7/21/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Paul G. Flynn, Judge. Affirmed and remanded.

Barry Bartholomew & Associates and Kathryn Albarian for Defendant and Appellant.

Knickerbocker Law Corporation, Richard L. Knickerbocker, Gregory G. Yacoubian; Michael H. Silvers, a Law Corporation, and Michael H. Silvers for Plaintiff and Respondent.

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Defendant and appellant Jack Ahn appeals from an order granting a new trial which had the effect of reversing the trial court's prior grant of summary judgment in his favor. Plaintiff and respondent Johnny Shin had sued appellant for negligence as a result of injuries he sustained when appellant's tee shot hit him in the head during a round of golf. The trial court initially granted appellant summary judgment on the ground that the doctrine of primary assumption of risk barred Shin's claim. After reviewing additional authorities, the trial court granted Shin's motion for a new trial, finding that there were triable issues of fact as to whether appellant's conduct in failing to confirm Shin's location when he teed off increased the inherent risks of the sport and, in turn, whether Shin's conduct was comparatively negligent.

Appellant challenges the order granting a new trial on both procedural and substantive grounds. Procedurally, he asserts that the new trial order is defective because it fails to identify either the grounds or the reasons for granting a new trial. On the merits, appellant contends that the order cannot stand because the law provides that every golfer assumes the inherent risk of being hit by a golf ball. He also asserts that the new trial could not have been based on his failure to plead assumption of risk as an affirmative defense.

We affirm the new trial order. Though the order does not comply with all applicable statutory requirements, we may affirm it if correct on any one of several grounds raised by the motion. The trial court correctly determined that it was an error in law to grant summary judgment, as the law provides that one owes a duty not to increase the inherent risks of the sport of golf, and the undisputed evidence established that appellant's failure to ascertain Shin's whereabouts before he teed off constituted a breach of that duty. Moreover, triable issues of fact remained as to whether Shin knowingly encountered the risk of injury caused by appellant's breach of that duty. Under these circumstances, the primary assumption of risk doctrine did not bar Shin's action.

FACTUAL AND PROCEDURAL BACKGROUND

On August 10, 2003, appellant, Shin, Jeffrey Frost and a fourth unidentified man were grouped together to play a round of golf at Rancho Park Golf Course. The fourth man left the group after playing the tenth or eleventh hole.

After appellant finished the twelfth hole, he picked up his bag, walked up an embankment to the thirteenth hole and got ready to tee off. He used the lower tee box on the hole. At that time, Shin and Frost were still on the twelfth hole green practicing their putting.

Shin then headed to the thirteenth hole while Frost was still on the twelfth hole green. He walked up an embankment about seven yards behind appellant. He saw appellant walk toward the tee box. He stopped on the cart path before the tee box and then got a water bottle out of his bag and checked his phone for messages. In the vicinity of the thirteenth hole, before anyone had begun to tee off, Shin made eye contact with appellant as he stood to the front and left of appellant.

Appellant's practice on the tee was to back away from the ball and take one practice swing. When he took his practice swing on the thirteenth hole, he did not know where Shin was. He did not see anyone on the fairway at that time. After his practice swing, he stepped forward and focused on the ball for approximately 15 to 20 seconds until he struck it. Appellant did not know where Shin was when he teed off. After he hit the ball, he looked up to see Shin on the ground approximately 25 to 35 feet away; he was to the left of appellant at about a 40 to 45-degree angle from him toward the upper tee box. Appellant's ball had hit Shin in the head.

In May 2004, Shin filed a first amended complaint alleging a single cause of action for negligence. Appellant answered and alleged four affirmative defenses, including assumption of risk which provided in part that â€