Metropolitan News-Enterprise


Thursday, May 4, 2017


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Court of Appeal Rejects Immunity Defense In Suit by Child Hit by Errant Golf Ball


By a MetNews Staff Writer


The immunity afforded a public entity from liability for the dangerous condition of a recreational trail was held inapplicable yesterday in a case where a flying golf ball from a revenue-generating city golf course struck a pedestrian on an adjacent walkway.

Div. Two of this district’s Court of Appeal reversed Los Angeles Superior Court Judge Howard L. Halm’s grant of summary judgment to the City of Pasadena in an action on behalf of a child injured by an errant golf ball as his mother pushed him in a stroller on a walkway next to the 15th hole of the C.W. Koiner Course of the city’s Brookside golf facility.

Brookside is owned by the city and managed by American Golf Corporation under a lease. The Koiner course is one of two within Brookside. The courses are surrounded by fencing more than seven feet high, on which is posted warning signs advising users of the adjacent pedestrian walkway that they “are within a golf course area” and “assume the risk of golf balls and other recreational users.”

Jacobo Garcia was hit in the head by a flying golf ball in September 2011 and was diagnosed with a brain injury at Children’s Hospital, to which he was transferred from Pasadena’s Huntington Memorial. His mother sued to be compensated for his injuries and for her own emotional distress “and the consequences of caring for” her son.

The city argued in support of its motion for summary judgment that there was no dangerous condition of public property, that the mother assumed the risk of injury, and that the city was immune under several statutes, including Government Code §831.4.  The statute provides immunity to a public entity or the grantor of an easement to a public entity for injury caused by a condition of “[a]ny trail used for” specified purposes, including “access to…recreational or scenic areas.”

The purpose of the immunity, cases have held, is to encourage that trails be opened, and remain open, for public use.

The plaintiffs responded that there was a dangerous condition, specifically that the fairways were too narrow, the fences were too low, and the warning signs provided no defense because there was no evidence the city erected them nor did they reasonably warn pedestrians outside the course of the hazard.

Halm granted the motion on the basis of the trail immunity of §831.4 and did not rule on other issues.

Justice Judith Ashmann-Gerst, writing for the Court of Appeal, concluded otherwise, distinguishing Leyva v. Crocket & Co., Inc. (2017) 7 Cal.App.5th 1105. That case applied the immunity in the case of a man who was hit by a flying golf ball while walking on a public path next to a golf course and sued the private company that ran the course.

“The plain language of section 831.4 provides immunity for injuries caused by dangerous conditions of trails,” the justice wrote, “but it does not provide immunity for injuries caused by dangerous conditions of adjacent public properties.”

In Leyva, she explained, the danger resulted from the condition of the trails, and the court was concerned that if it allowed liability, it would discourage private landowners from granting easements for public use. In the present case, she contrasted, the danger posed by the course would exist even if there were no walkway, because motorists and recreational users could still be hit by golf balls while using the nearby Rose Bowl Loop.

The jurist wrote:

“Based on all these considerations, a public golf course cannot assert a trail immunity defense when:  (1) the golf course is adjacent to a trail abutting a public street; (2) the golf course is a commercially operated, revenue-generating enterprise; (3) the golf course has a dangerous condition that exposes people outside it to a risk of harm from third parties hitting errant golf balls; and (4) the dangerous condition of the golf course caused harm to a user of the trail.”

The plaintiffs were represented on appeal by Robert D. Feighner and Edward J. Deason. The city was represented by Assistant City Attorney Ann Sherwood Rider, by Michael R. Nebenzahl, and by Justin Reade Sarno of Carpenter, Rothans & Dumont.

The case is Garcia v. American Golf Corporation, 17 S.O.S. 2340.


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