McElroy v. Walsh

Filed 5/14/08 McElroy v. Walsh CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Randell L. Wilkinson, Judge. Affirmed in part and reversed in part.

Law Offices of Christopher E. Purcell and Christopher E. Purcell; Kristen Martin for Plaintiff and Appellant.

Haight Brown & Bonesteel, Richard E. Morton and J. Alan Warfield for Defendant and Respondent Thomas Walsh.

Law Offices of Kevin M. McGowen and Kent D. Zippe for Defendant and Respondent Robert D. Vickery.

* * *

Plaintiff John McElroy was hit by an errant golf ball and sued two members of his golf foursome, defendants Thomas Walsh and Robert Vickery. McElroy appeals the trial courts grant of summary judgment, which was granted on a primary assumption of the risk theory. While this appeal was pending, a new case from the California Supreme Court clearly set forth the law to be followed in such an instance. The court ruled that the primary assumption of the risk doctrine applied in such cases, but held that summary judgment could not be granted if, following the familiar standard for summary judgment, a material fact existed as to whether the defendant was reckless. Based on the facts of this case, we find that summary judgment was properly granted as to Vickery, but must be reversed as to Walsh.

I

FACTS

On August 1, 2005, plaintiff John McElroy was playing golf with a foursome that included defendants Thomas Walsh and Robert Vickery. The group was playing ready golf, which meant that players endeavored to reduce wasted time by getting to their ball and hitting whenever they were ready.

Vickery and McElroy used one cart while Walsh and the fourth player, Robert Van Etten, used another. At the 17th hole, McElroy teed off first and hit his ball approximately 35 yards to the right on the fairway. After the other three players took their tee shots, Vickery drove the cart to McElroys ball. Neither of them had exited the cart when Walshs ball hit McElroy in the mouth. Van Etten later testified that he never thought Vickery or McElroy were in harms way, based upon their location at the time Walsh hit his ball. Walsh testified, however, that if McElroy and Vickery were, at all times, at the location of impact, they would have been in the danger zone.

McElroy sued defendants, arguing that Walsh played golf in an unsafe and unreasonable manner, and that Vickery operated the cart in an unsafe and unreasonable manner. Defendants filed motions for summary judgment based on the primary assumption of the risk doctrine. McElroy opposed the motions and argued that because Walsh did not ascertain the location of the other players or warn them of his shot, he acted recklessly and increased the inherent risk of the sport. He also argued that Vickery increased the risk by his conduct. The court granted defendants motions.

II

DISCUSSION

Summary judgment is appropriate if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., 437c, subd. (c).) To prevail on the motion, a defendant must demonstrate the plaintiffs cause of action has no merit. This requirement can be satisfied by showing either one or more elements of the cause of action cannot be established or that a complete defense exists. (Code Civ. Proc., 437c, subds. (o), (p); Bardin v. Lockheed Aeronautical Systems Co. (1999) 70 Cal.App.4th 494, 499-500.) If the defendant meets this requirement, the burden shifts to the plaintiff to demonstrate a triable issue of material fact exists. (Code Civ. Proc., 437c, subd. (p)(2); Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 72.)

After McElroys opening brief was filed, the California Supreme Court decided Shin v. Ahn (2007) 42 Cal.4th 482 (Shin), a case that further developed the doctrine set forth in Knight v. Jewett (1992) 3 Cal.4th 296. The court concluded that the primary assumption of risk doctrine regulates the duty a golfer owes both to playing partners and to other golfers on the course. (Shin, supra, 42 Cal.4th at p. 488.) Thus, 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. [Citation.] (Id. at p. 497.) In this context, reckless means that a person is aware of and consciously disregards a substantial and unjustifiable risk that his or her act will cause injury. (Delaney v. Baker (1999) 20 Cal.4th 23, 32, fn. 5.)

Defendants have met their burden of demonstrating that a complete defense primary assumption of the risk exists. Thus, the question on summary judgment is whether there is a triable issue of material fact as to whether defendants conduct was reckless. The Shin court found that the record before it on summary judgment was too sparse to find, as a matter of law, that the defendant did not act recklessly. (Shin, supra, 42 Cal.4th at p. 500.)

With respect to Vickery, we find no facts, even when construed in the light most favorable to the plaintiff, that would support a finding of recklessness, a standard that requires awareness and conscious disregard of risk. (Delaney v. Baker, supra, 20 Cal.4th at p. 32.) Vickery simply drove the cart to his ball, as was customary. He may have been negligent in not being more aware of Walshs position, but this does not support a finding of recklessness. Thus, summary judgment was properly granted.

As to Walsh, we cannot reach the same conclusion. As the Shin court noted, In determining whether defendant acted recklessly, the trier of fact will have to consider both the nature of the game and the totality of circumstances surrounding the shot. In making a golf shot the player focuses on the ball, unlike other sports in which a players focus is divided between the ball and other players. That is not to say that a golfer may ignore other players before making a shot. Ordinarily, a golfer should not make a shot without checking to see whether others are reasonably likely to be struck. Once having addressed the ball, a golfer is not required to break his or her concentration by checking the field again. Nor must a golfer conduct a head count of the other players in the group before making a shot. [] Many factors will bear on whether a golfers conduct was reasonable, negligent, or reckless. Relevant circumstances may include the golfers skill level; whether topographical undulations, trees, or other impediments obscure his view; what steps he took to determine whether anyone was within range; and the distance and angle between a plaintiff and defendant. (Shin, supra, 42 Cal.4th at pp. 499-500, fn. omitted.)

The record before us is not, as it was in Shin, overly sparse. Walsh prepared

to take his shot with McElroy about 40 yards away in a 10 oclock position, from Walshs perspective. Walsh concedes this placed McElroy in a zone of danger. McElroy argues that before he lined up his shot, he had observed Vickery and McElroy some 70 yards away in the 9 oclock position, out of the cart and looking for Vickerys ball. Thus, Walsh asserts that McElroy and Vickery must have moved within the danger zone during the 20 seconds that Walsh spent lining up his shot.

Vickery and McElroy both testified that they found Vickerys ball without difficulty and drove right to it, never exiting the cart. This dispute in the evidence is more than just a difference in perception it raises a question about whether Walshs version of the facts is credible. Perhaps he never looked to ascertain where the other players were, or perhaps he saw them in the danger zone and took the shot anyway. Either factual scenario might be enough to prove the requisite recklessness. We cannot, therefore, conclude that Walsh was negligent rather than reckless based on the undisputed facts. Thus, summary judgment as to Walsh must be reversed.

III

DISPOSITION

The judgment is affirmed as to Vickery. As to Walsh, the judgment is reversed and the case remanded for further proceedings. In the interests of justice, each party shall bear their own costs on appeal.

MOORE, J.

I CONCUR:

ARONSON, J.

SILLS, P. J., Concurring.

While I agree that the record requires the reversal of the judgment in Walshs favor, this case is a lot closer than the majority opinion might indicate, largely because the majority opinion misunderstands the conventions of ready golf. A reading of the majority opinion leads one to conclude that the format of so-called ready golf that this foursome was playing is an approved way of playing this great game. It is not and has not been since Mary Queen of Scots was playing at St. Andrews.

There is a difference between ready golf and suicide golf. The majoritys in passim definition of ready golf as players getting to their ball and hitting whenever they [the players] were ready is actually closer to suicide golf than ready golf.

The point of ready golf is that players should not waste time sizing up their shot, considering the wind and surveying the terrain, mulling over club selection, or otherwise making offerings to the golf gods upon it becoming their turn to hit. Those rituals should have already been performed before the players turn arrived.

Ready golf means that the three players in a foursome not hitting should stay in or at their carts and be ready to go to the next ball as soon as one hits, not all standing around and watching. It also means that players should not waste time on the greens. They must be ready to place their ball and putt as soon as it is their turn. (Such conventions may save only a few seconds per player per hole, but in the aggregate over eighteen holes, they can speed play up to an hour.)

However, ready golf recognizes obvious common sense. It does not mean that a player should put himself in a dangerous place on the course. In other

words, players should not voluntarily place themselves ahead of the line of fire in some anarchist dash to their ball regardless of the fact that someone in their party might be hitting from behind them, i.e., if the ball takes an unexpected hook or slice, at them. Thats suicide golf, and invites the sort of accident that occurred to McElroy, who foolishly did put himself ahead of the line of fire. Even the pros have time limits they must adhere to, but you dont see them put themselves ahead of the golfer hitting the ball. Golf is a potentially dangerous sport if you dont use a little common sense, and getting ahead of someone who will be hitting from behind you is, literally, assuming the risk. Big time.

However, even given application of primary assumption of the risk, reckless behavior from ones fellow competitors will still be actionable. Indeed, at oral argument, Walshs lawyer conceded that golfers do not assume the risk of another players reckless conduct. In that vein, just as one doesnt put oneself ahead of the line of fire, so must players taking the shot refrain from shooting if they see someone who is in the line of fire. Common sense must run in both directions. Indeed, in the deposition of the fourth player in this case, Van Etten, he added the important qualifier to his own personal definition of ready golf, namely that a player does not hit the ball if he doesnt have a clean shot -- even if he or she is otherwise ready to take the shot.^[1] (The qualification is a restatement of the language from Shin v. Ahn (2007) 42 Cal.4th 482, 499, quoted in the majority opinion: Ordinarily, a golfer should not make a shot without checking to see whether others are reasonably likely to be struck.)^[2]

In this case there is evidence that the foursome in this case agreed to play this form of golf, had done so in the past, and that Walsh did not have a clean shot. We have no evidence in the record that Walsh was not aware of McElroys presence down range. Accordingly, the majority opinion arrives at the correct result, because we cannot now, on this record at least,declare Walsh to be absolved of recklessness as a matter of law.

That said, given the sheer folly of going out ahead of the line of fire (and the significant contributory negligence that that fact must inevitably entail), McElroy would be well advised to accept any reasonable settlement offer.

SILLS, P. J.

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^[1]Heres the text of the relevant deposition transcript:

Q. Is it an absolute rule that whoevers away hits first?

A. We play, you know, quick golf, I guess you would call it. You know, we dont like fooling around. We all play quick. You know, we dont hold anybody up.

Q. Okay.

A. So weve been around long enough to known that if youve got a clean shot and youre ready to go, you know, ready golf.

Q. Ready golf.

A. Thats the word Im looking for.

^[2] I should add, though, that our Supreme Court in Shin implied that even making a shot without checking to see whether others are reasonably likely to be struck may still not be reckless (as distinct from negligent) when the course is not crowded. (Shin, supra, 42 Cal.4th at p. 499, fn. 11.))