McElroy v. Walsh
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, Court find that summary judgment was properly granted as to Vickery, but must be reversed as to Walsh.
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