Baker v. Mid Maine Medical Center

• Decision Date: 16 October 1985
• Citation: 499 A.2d 464
• Parties: Harold BAKER v. MID MAINE MEDICAL CENTER, et al.
• Court: Maine Supreme Court

Page 464

499 A.2d 464

53 A.L.R.4th 271

Harold BAKER v. MID MAINE MEDICAL CENTER, et al.

Supreme Judicial Court of Maine.

Argued Sept. 3, 1985.

Decided Oct. 16, 1985.

Rudman & Winchell, Dawn M. Pelletier, (orally), Paul W. Chaiken, Paul H. Sighinolfi, Bangor, for plaintiff.

Campbell & Mumm, Joseph B. Campbell, (orally) Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Phillip E. Johnson, Augusta, for defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, VIOLETTE, GLASSMAN and SCOLNIK, JJ.

SCOLNIK, Justice.

The plaintiff, Harold Baker, appeals from a verdict directed for the defendants by the Superior Court (Hancock County) at the conclusion of the plaintiff's case. He argues on appeal that the trial justice erred in determining that on the evidence presented a jury could not have rationally concluded that the defendants Mid Maine Medical Center (MMMC) and Waterville Country Club (Waterville C.C.) negligently failed to take adequate precautions to prevent him from being struck by a golf ball at a golfing exhibition. We conclude that there was sufficient evidence of defendants' negligence to warrant submission of the case to the jury and therefore we vacate the judgment.

The evidence presented at trial may be summarized as follows: On June 24, 1981, the plaintiff, an experienced golfer, attended a golfing exhibition held at the Waterville C.C., that featured the well-known professional golfer, Tom Watson. MMMC sponsored the event as part of a fund raising drive and charged an admission fee. Approximately 2500 people attended. The program included a clinic in the morning followed by a nine-hole golfing exhibition in the afternoon. As part of the afternoon exhibition, Watson played nine holes of golf. On any one hole, four individuals paid money for the privilege of playing along with Watson. No one other than these individuals played on the golf course during the exhibition. The plaintiff followed the exhibition for the first two holes but skipped the third and fourth holes in order to rest. At the fifth hole, he watched Watson and the four individuals accompanying Watson hit their first shots from the tee. The plaintiff stood 250 to 300 yards from the tee and twenty-five to thirty feet back from the edge of the fairway. Watson's shot landed in the woods on the opposite side of the fairway. While the plaintiff watched Watson disappear into the woods in search of his golf ball, he heard someone shout "fore." Immediately thereafter, a golf ball struck him in the chest. The ball hit him directly at the point where an incision had been made several months earlier when the plaintiff had undergone heart surgery. As a result of the impact, the plaintiff suffered further injury.

Because he was interested primarily in watching what Watson did on the golf course, the plaintiff did not know when the golfers playing along with Watson intended to play their shots. Other spectators who attended the exhibition also stated that they did not pay attention to the accompanying golfers. As an experienced golfer, the plaintiff knew that if he saw a person ready to hit a golf ball, he would watch him for his own protection. However, no one warned him when golfers were about to play their shots. He contended that if he had been so warned, he would have had more time to avoid being struck by a ball travelling in his direction.

The Waterville C.C. had formed a committee responsible for crowd control at the exhibition. The committee arranged to have twenty-five marshals supervise the spectators. The marshals were instructed to inform spectators in the area of the possible flight of the ball when a golfer would be playing a shot. Although the marshals purportedly gave such warnings on the fifth hole, the plaintiff did not hear any warnings. Another spectator also recalled that no one gave warnings. At the close of the plaintiff's case, the trial justice directed a verdict against the plaintiff upon the defendants' motions made pursuant to Rule 50(a) of the Maine Rules of Civil Procedure. ¹

I.

In reviewing a directed verdict, we consider the evidence, including every justifiable inference therefrom, in the light most favorable to the party against whom the verdict was directed. Poirier v. Hayes, 466 A.2d 1261, 1263 (Me.1983); Seiders v. Testa, 464 A.2d 933, 935 (Me.1983). If by any reasonable view of this evidence a jury verdict for the plaintiff could be sustained, the granting of a directed verdict is improper. Packard v. Central Maine Power Co. 477 A.2d 264, 267 (Me.1984); Boetsch v. Rockland Jaycees, 288 A.2d 102, 104 (Me.1972). Based on our review of the record, we conclude there was sufficient evidence of the defendants' negligence to warrant submitting the issue to the jury.

The defendants do not dispute that the plaintiff was a business invitee. ² The defendants were required therefore to use ordinary care to ensure that the premises were reasonably safe for the plaintiff, guarding him against all reasonably foreseeable dangers, in light of the totality of the circumstances. Libby v. Perry, 311 A.2d 527, 536 (Me.1973); Isaacson v. Husson College, 297 A.2d 98, 104-105 (Me.1972). The standard of ordinary care is a variable one and whether the standard of care required in a given case has been met is ordinarily a question of fact for the jury. Boetsch v. Rockland Jaycees, 288 A.2d at 106. Specifically, as noted in Isaacson, "[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Isaacson v. Husson College, 297 A.2d at 105 (emphasis in original) (quoting Restatement (Second) of Torts § 343A(1) (1965)). ³

Section 343A(1) is applicable in this case in determining the duty the defendants owed to the plaintiff. The game of golf presents a known hazard, balls, hit by golfers, that do not always travel in the intended direction, and which are capable of causing serious personal injury.

Spectators at golfing exhibitions are therefore clearly subjected to known risks, recognized here by the defendants in their provision of marshals to supervise and control those in attendance. The crucial issue then becomes whether the defendants had reason to expect harm to the plaintiff from this obvious risk in circumstances where the plaintiff's attention would be distracted from such risk causing him to forget, or fail to protect himself against it. The evidence here sufficiently generates for the jury's consideration the factual question whether the defendants should have reasonably foreseen that spectators at a golfing exhibition featuring a renowned professional golfer, would focus their attention on the celebrity with resulting inattention to the other golfers playing along with him. Cf. Seiders v. Testa, 464 A.2d at 935. If such inattentiveness was reasonably foreseeable, the jury must then determine whether the defendants' failure to warn that a player was about to attempt a shot exposed the plaintiff to an unreasonable risk of harm. E.g., Poirier v. Hayes, 466 A.2d at 1263-64; Libby v. Perry, 311 A.2d at 536; Boetsch v. Rockland Jaycees, 288 A.2d at 105. See also Duffy v. Midlothian Country Club, 92 Ill.App.3d 193, 198, 47 Ill.Dec. 786, 790, 415 N.E.2d 1099, 1103 (1980). If a failure to warn exposed the plaintiff to an unreasonable risk of harm, the jury must decide whether in fact a warning was given on the fifth hole of play. If it finds that no warning was given, the jury must also determine whether such failure proximately caused the plaintiff's injury.

Boetsch v. Rockland Jaycees, 288 A.2d at 104-106, illustrates the propriety of submitting to the jury the issue whether the defendants took reasonable precautions in light of the totality of the circumstances. In Boetsch, the defendant organized and conducted a snowmobile race. As a result of a malfunction, a riderless snowmobile unexpectedly accelerated out of control over an embankment. It struck the plaintiff who stood in an "off-limits" area. The court, sustaining an appeal from a directed verdict for the defendant at the close of the plaintiff's case, held that a question of fact existed whether the defendant had taken reasonable precautions to provide reasonably safe premises for the spectators, guarding them against all reasonably foreseeable dangers. Id. A similar question of fact exists here. Accordingly, we conclude that the trial justice erred in determining that there was insufficient evidence to warrant submission of the case to the jury. ⁴

The defendants, recognizing the rule that a judgment will be affirmed on appeal if its ultimate conclusion is correct in law, L. Ray Packing Co. v. Commercial Union Ins. Co., 469 A.2d 832, 834 (Me.1983), argue that the direction of verdicts in their favor is sustainable on other grounds.

MMMC asserts that because it did not have the right to supervise the crowd during the exhibition, it owed no duty to the plaintiff. The trial justice properly rejected this argument. MMMC contends that under the terms of its agreement with the Waterville C.C. for the use of the country club facilities, the Waterville C.C. retained the sole responsibility to control the crowd during the exhibition. MMMC, nevertheless, as sponsor of the event, planned the exhibition, controlled admissions, collected the admission price, retained whatever profit was derived therefrom, and had the right to use the golf course in order to invite the public to attend the event. Because it retained concomitant control over the event, MMMC is not relieved of its non-delegable responsibility to make the premises reasonably safe for its invitees, including its obligation to ensure that Waterville C.C. adequately supervised the crowd. See Watford v. Evening Star Newspaper Co., 211 F.2d 31, 33 (D.C.Cir.1954) (concomitant control basis for imposing duty to protect...