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HomeMy WebLinkAbout2000-2617 Civil RICHARD CLOTFELTER AND LINDA CLOTFELTER, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CARLISLE COUNTRY CLUB, DEFENDANT 00-2617 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., June 16, 2005:-- There is evidence in the record to support the following. On October 20, 1997, plaintiff, Richard Coltfelter, became a paying, non-voting member of defendant, Carlisle Country Club. On May 24, 1998, plaintiff started a round of golf with a foursome in a tournament at the Club. The first hole, approximately four hundred yards, is parallel to a driving range. Plaintiff hit a drive near the center of the first fairway and went to the ball approximately 200 yards from the first green. He was standing just to the right of the center of the fairway waiting for a playing partner to hit when a ball, hit from the driving range, struck him in the left eye causing serious injury. Until the time of the accident, plaintiff played golf at the Club approximately twice a week since becoming a member. He had used the driving range approximately twelve times. The golf course was designed in 1924. A driving range was installed in the 1940's. At the time of the accident there was netting 20 feet high and 50 yards long along the left side of the driving range adjacent to the first fairway. Scattered trees were adjacent to the net. Officials at the Country Club were aware that balls hit on the driving range sometimes 00-2617 CIVIL TERM went onto the first hole, sometimes struck golfers, and sometimes injured golfers. Plaintiff instituted this suit in negligence seeking recovery for the injuries he incurred from being struck by the ball hit from the driving range on May 24, 1998. Defendant filed a motion for summary judgment which was briefed and argued on June 1, 2005. In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for examining a motion for summary judgment. A court: [m]ust view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304 (1992). . .. In order to withstand a motion for summary judgment, a non- moving party "must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Ertrel v. Patriot-News Co., 544 Pa. 93,101-102,674 A.2d 1038,1042 (1996). Defendant frames the issues as follows: Should defendant be found not liable as a matter of law under the "no duty" rule because it did not have a duty to warn plaintiff, who knowingly and voluntarily became a member of the defendant Country Club and who was an experienced golfer, of an obvious hazard which was known to and appreciated by plaintiff? In the alternative, should defendant's motion for summary judgment be granted under the doctrine of assumption of risk because plaintiff, who was fully aware of and, indeed, approved of, the design of defendant's golf course and driving range, and in addition was aware of the risk of being struck by an errant golf ball, made a conscious decision to golf despite his knowledge and appreciation of that risk? In Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643 (Pa. Super. 2002), -2- 00-2617 CIVIL TERM the Superior Court of Pennsylvania set forth the duty owed to a business invitee by a possessor of land. It is the highest duty owed to any entrant upon land, and exits if, but only if, the property owner: (a) knows or by the exercise of reasonable care would discover the condition, and should realize it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. In Staub v. Toy Factory, Inc., 749 A.2d 522 (Pa. Super. 2000), the Superior Court of Pennsylvania stated: Our supreme court appears to have concluded that in a negligence action, the question whether a litigant has assumed the risk is a question of law as part of the court's duty analysis, and not a matter for jury determination. Howell v. Clyde, 533 Pa. 151, 160-64, 620 A.2d 1107,1112-13 (1993) (plurality). See also Struble v. Valley Forge Military Academy, 445 Pa.Super. 224, 232, 665 A.2d 4, 8 (1995). In Hardy v. Southland Corp., 435 Pa. Super. 237, 243-45, 645 A.2d 839, 842 (1994), appeal denied, 539 Pa. 679, 652 A.2d 1324 (1994), this court concluded that until the supreme court adopts clearer standards, assumption of risk should be analyzed according to the lead (plurality) opinion in Howell. Under this "modified" form of the doctrine, assumption of risk is no longer an affirmative defense in most cases; rather, it is incorporated into an analysis of whether the defendant owes a duty to the plaintiff. Id.; Zinn v. Gichner Sys. Group, 880 F.Supp. 311, 318 (M.D.Pa. 1995). "Howell states that the trial court is obligated to review the factual scenario and determine whether '[u]nder those facts, . . . the defendant, as a matter of law, owed the plaintiff no duty of care.'" Hardy, 645 A.2d at 842, citing Howell, supra at 162-64, 620 A.2d at 1113. This court has also held that "a plaintiff will not be precluded from recovering except where it is beyond question that he voluntarily and knowingly proceeded in the face of an obvious and dangerous condition and thereby must be viewed as relieving the defendant of responsibility for his injuries." Struble, 665 A.2d at 6, citing Long v. Norriton Hydraulics, Inc., 443 Pa.Super. 532, 662 A.2d 1089 -3- 00-2617 CIVIL TERM (1995), appeal denied, 544 Pa. 611, 674 A.2d 1074 (1996) (emphasis in Struble). As the plurality observed in Howell, supra, "the court may determine that no duty exists only if reasonable minds could not disagree that the plaintiff deliberately and with awareness of specific risks inherent in the activity nonetheless engaged in the activity that produced his injury." Howell, supra at 162, 620 A.2d at 1113 (plurality). As the Howell court continued, "If, on the other hand, the court is not able to make this determination and a nonsuit is denied, then the case would proceed and would be submitted to the jury on a comparative negligence theory." Id. The Howell court noted that "[u]nder this approach. . . assumption of the risk would no longer be part of the jury's deliberations or instructions." Id. (Emphasis added.) (Footnotes omitted.) The plaintiff in Jones v. Three Rivers Management Corp., 483 Pa. 75 (1978), was attending a professional baseball game at Three Rivers Stadium in Pittsburgh when he was struck by a ball that was hit during batting practice. The accident occurred when the plaintiff was standing in an interior concourse near a pedestrian opening. Plaintiff was awarded a verdict at trial. The Superior Court of Pennsylvania reversed, but the Supreme Court of Pennsylvania reversed the Superior Court and reinstated the verdict. The Supreme Court stated: [M]ovies must be seen in a darkened room, roller coasters must accelerate and decelerate rapidly and [baseball] players will bat balls into the grandstand. But even in a "place of amusement" not every risk is reasonably expected. The rationale behind the rule that the standard of reasonable care does not impose a duty to protect from those risks associated with baseball, naturally limits its application to those injuries incurred as a result of risks any baseball spectator must and will be held to anticipate. . .. "no-duty" rules, apply only to risks which are "common, frequent and expected," . . . and in no way affect the duty of theatres, amusement parks and sports facilities to protect patrons from foreseeably dangerous conditions not inherent in the amusement activity. *** -4- 00-2617 CIVIL TERM The central question, then, is whether appellant's case is governed by the "no-duty" rule applicable to common, frequent and expected risks of baseball or by the ordinary rules applicable to all other risks which may be present in a baseball stadium. To settle this question, we must determine whether one who attends a baseball game as a spectator can properly be charged with anticipating as inherent to baseball the risk of being struck by a baseball while properly using an interior walkway. . .. It... cannot be concluded that recovery is foreclosed to appellant who was struck while standing in an interior walkway of Three Rivers Stadium. The Superior Court was in error when it extended to appellant, standing in this walkway, the no-duty rule applicable to patrons in the stands. The no- duty rule was improperly applied. (Footnote omitted.) (Emphasis added.) In Crews v. Seven Springs Mountain Resort, _ A.2d _, (2005 Pa. Super. Lexis 899 April 18, 2005), the Superior Court of Pennsylvania reversed an order of a trial court granting a ski resort judgment on the pleadings. Appellant, while skiing, was allegedly struck from behind by an underage snowboarder who was under the influence of alcohol. Appellant pleaded that the underage drinking had started earlier in the evening, and had also occurred on prior occasions at the resort, such that appellee was on notice of same. The issue was whether appellant assumed the risk of being struck by an underage snowboarder who was under the influence of alcohol. Noting that assumption of risk does not apply unless the injury suffered resulted from a risk "inherent in the activity," the court held that "The risk allegedly encountered instantly by Appellant is not one inherent to skiing." "A person who plays golf assumes some risks of the game." (Emphasis added.) Getz v. Freed, 377 Pa. 480 (1954). See also, Tomkins v. Long, 52 Cumberland L.J. 126 (2003). Applying the analysis in Jones and Crews in the case sub judice, we -5- 00-2617 CIVIL TERM conclude that any risk to plaintiff, while playing on the first hole of the Country Club, from being struck by a ball hit from the driving range, a place where multiple golfers hit buckets of balls, is not a risk inherent in the game of golf. Unlike the risk of being struck by an errant shot of another player, it is a risk that can be removed without alternating the fundamental nature of the game. On evidence in the record, defendant owed a duty to plaintiff as a business invitee. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of June, 2005, the motion of defendant for summary judgment, IS DENIED. By the Court, Edgar B. Bayley, J. James R. Ronca, Esquire For Plaintiff Guy H. Brooks, Esquire F or Defendant :sal -6- RICHARD CLOTFELTER AND LINDA CLOTFELTER, PLAINTIFFS V. CARLISLE COUNTRY CLUB, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-2617 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT AND NOW, this summary judgment, IS DENIED. James R. Ronca, Esquire For Plaintiff Guy H. Brooks, Esquire F or Defendant :sal BEFORE BAYLEY, J. ORDER OF COURT day of June, 2005, the motion of defendant for By the Court, Edgar B. Bayley, J.