Tuesday, July 25, 2006
Court of Appeal Says:
Primary Assumption of Risk Does Not Bar Recovery by Injured Golfer
By TINA BAY, Staff Writer
The doctrine of primary assumption of risk does not apply to a golfer injured by his partner’s negligent swing, the Court of Appeal for this district has ruled.
A divided Div. Two panel affirmed Los Angeles Superior Court Judge Paul G. Flynn’s grant of a new trial requested by golfing accident victim Johnny Shin.
Shin, a Los Angeles resident, sued Jack Ahn in May 2004 alleging that Ahn’s negligent golf swing caused his ball to strike Shin in the head.
Shin and Ahn were playing a round of golf at Rancho Park Golf Course in Los Angeles in August 2003, when Ahn teed off at the thirteenth hole without noticing that Shin was standing 25 to 35 feet away taking out his water bottle and checking his phone messages.
Shin’s counsel, Santa Monica attorney Richard L. Knickerbocker, said Ahn’s ball was traveling an estimated 120 miles an hour when it hit Shin’s head, and the impact caused serious brain injury to Shin resulting in temporary unconsciousness as well as ongoing paralysis.
Ahn moved for summary judgment in January 2005 on the ground that the doctrine of primary assumption of risk barred Shin’s complaint, and after initially granting the motion in April, Flynn effectively reversed his ruling by granting Shin’s May 2005 motion for a new trial.
Flynn, who had initially ruled that Shin assumed the risk of injury by going out on the golf course, later concluded that triable issues of fact existed as to whether Ahn increased Shin’s risk of injury by teeing off while knowing Shin was standing in a zone of danger, and as to whether Shin also acted negligently.
Agreeing with Flynn, the appellate panel ruled that summary judgment constituted an error in law and new trial was proper, because the primary assumption of risk doctrine—which states that a participant in an inherently dangerous activity assumes the risk of his own conduct and is not owed a duty of protection by coparticipants—did not apply to Shin’s situation.
Writing for the appellate panel, Justice Kathryn Doi Todd said that, while a person on a golf course assumes the inherent risk of being hit by stray golf balls from unknown sources, he does not assume the risk that a member of his own group will carelessly tee off without checking his whereabouts.
“The circumstances here do not involve a golfer being hit by an errant ball from
another fairway,” the justice explained. “Rather, the undisputed evidence submitted on summary judgment showed that appellant, who was in the same threesome as Shin, failed to establish Shin’s whereabouts at the time he teed off. He conceded that there was ‘[n]o particular reason’ why he did not wait to tee off until he knew where Shin was standing.”
Flynn’s new trial order was therefore proper, Doi Todd said, noting that Flynn’s failure to specify the grounds on which he granted Shin’s motion was a non-fatal procedural defect.
The justice added that a new trial would serve to determine the application of the secondary assumption of the risk doctrine, under which Ahn would be liable for endangering increasing Shin’s risk beyond what was inherent.
“[A]s the trial court acknowledged, evidence that Shin’s conduct in stopping at a location within the range of appellant’s potential tee shot, without alerting appellant of his presence, raised issues of comparative negligence,” Doi Todd wrote.
Justice Victoria M. Chavez joined in the opinion.
Dissenting, Presiding Justice Roger W. Boren concluded that neither primary nor secondary assumption of risk applied to Shin’s situation.
Not only was golfing a “classic case” of primary assumption of the risk, he wrote, but Shin clearly placed himself in harm’s way at the time Ahn was preparing to swing, thus making secondary assumption of the risk inapplicable.
“[T]he evidence indicates, at most, that appellant was careless or negligent rather than reckless, and appellant did nothing outside the range of the ordinary activity involved in golf that enhanced the inherent risk of the sport,” he wrote.
Knickerbocker told the MetNews that Shin’s accident was in no way inherent in the rules of golf and was entirely preventable.
“I think that there are risks to playing golf, but you don’t assume the risk that people will just plain be stupid,” he said. “You don’t wear a helmet when you’re playing golf because you don’t assume the risk that someone crazy is going to hit a ball into your head when they can see where you are.”
Flynn, known to be a great golfer, took a great interest in Shin’s case and worked it up extensively in order to “do the right thing,” Knickerbocker said.
Ahn’s attorney, Kathryn Albarian, did not timely return calls for comment.
The case is Shin v. Ahn, 06 S.O.S. 3865.
Copyright 2006, Metropolitan News Company