Creel v. L & L, Inc.
| Decision Date | 14 September 2012 |
| Docket Number | No. S–11–0138.,S–11–0138. |
| Citation | 287 P.3d 729,2012 WY 124 |
| Parties | James CREEL and Brenda Creel, Appellants (Plaintiffs), v. L & L, INC., a Wyoming Corporation, Lew Lepore and Mike Lepore, Appellees (Defendants). |
| Court | Wyoming Supreme Court |
OPINION TEXT STARTS HERE
Representing Appellants: Richard Gage of Richard Gage, PC, Cheyenne, Wyoming.
Representing Appellees: Grant R. Curry and Monty L. Barnett of White & Steele, P.C., Cheyenne, Wyoming, and Denver, Colorado. Argument by Mr. Barnett.
Before GOLDEN, and VOIGT, JJ., and SULLINS, BROOKS, and TYLER, DJJ.
[¶ 1] James Creel and Brenda Creel (collectively the Creels) attended the 2006 Wyoming Open Golf Tournament (Wyoming Open) as spectators. During the tournament, James Creel (Mr. Creel) was struck by a golf ball and suffered a head injury. The Creels thereafter filed an action for damages against several parties, including the golfer who hit the ball, a tournament official, and the operators of the golf course and tournament—L & L, Inc. and its owners Lew Lepore and Mike Lepore (collectively L & L). The district court granted summary judgment in favor of all defendants except the golfer, concluding that getting hit by a golf ball is an inherent risk of golf and that the Wyoming Recreation Safety Act thus barred the Creels' action. The Creels appeal the summary judgment entered in favor of L & L. We reverse.
[¶ 2] The Creels present the following issues on appeal:
1. Does the “Recreation[ ] Safety Act,” Wyoming Statute § 1–1–121 through § 1–1–123, shield a provider of a recreational opportunity from liability when the provider fails to provide a safe environment for that recreational opportunity?
2. Does the “Recreation[ ] Safety Act,” Wyoming Statute § 1–1–121 through § 1–1–123, shield a provider of a recreational opportunity from liability when the negligence of the provider increases the dangers to spectators at that recreational opportunity?
[¶ 3] In reviewing a summary judgment, we set forth the underlying facts consistent with our standard of review, which requires that we proceed as follows:
We treat the summary judgment movant's motion as though it has been presented originally to us. We use the same materials in the record that was before the district court. Using the materials in the record, we examine them from the vantage point most favorable to the nonmoving party opposing the motion, giving that party the benefit of all favorable inferences which may fairly be drawn from the materials.
Bangs v. Schroth, 2009 WY 20, ¶ 20, 201 P.3d 442, 452 (Wyo.2009) (citations omitted).
[¶ 4] On July 7, 2006, the Creels attended the 2006 Wyoming Open at the Cheyenne Airport Golf Course in Cheyenne, Wyoming. They walked the course following their son, Josh Creel, who was competing in the event. Josh Creel's foursome included fellow golfer Brandon Donahue, and his caddy was Haley Hartman. The spectators following Josh Creel, besides his parents, included Hadley Berry and Sue Blythe. When Josh Creel reached the putting green of Hole # 1, they and others watched him from the front-right side of the green. Hole # 1 is straight, roughly 320 to 330 yards long, and the right side of its fairway is lined with scattered trees and bushes.
[¶ 5] While the Creels and others watched their son putt, the next group of competitors prepared to tee off from the tee box of Hole # 1. That group included Brett Veesart (Mr. Veesart), a professional golfer. Those on the tee box of Hole # 1, including Mr. Veesart, could see the golfers still on the putting green of Hole # 1. Mr. Veesart and the others in his group testified that the spectators following the Creel foursome ahead of them were not visible from the tee box of Hole # 1, while Josh Creel and another golfer in his foursome testified that the spectators were standing in a location that was visible from the tee box.
[¶ 6] Kathy Irvine (Ms. Irvine) was a volunteer “starter” at Hole # 1. She was appointed by and performing at the direction of L & L, which operates the course and sponsored the tournament. At the time of the 2006 Wyoming Open, Ms. Irvine had worked as a starter at the tournament for approximately twenty-four years.
[¶ 7] Mr. Veesart was designated as the first player off the tee box, and Ms. Irvine instructed him to commence play. Mr. Veesart responded that he felt he should wait because he was concerned that he could hit the green with his initial drive. He testified:
Q. And do you remember the starter that day?
A. Yes.
Q. Do you remember a discussion that you had with her?
A. Yes.
Q. And do you remember discussing with her the fact that there were people on the green?
A. Yes.
Q. And do you remember discussing with her the fact that you felt as though you could hit that green with your drive?
A. Yes.
Q. And what was her response to you?
A. That the wind was swirling and that they were behind and we needed to get going.
Q. And how did you interpret that?
A. That she was basically saying you need—that we need to get going.
Q. That she was instructing you to hit?
A. Mm-hum.
Q. Regardless of whether or not people were on the green?
A. Yes.
Q. Did she dispute the possibility that you could hit that green—
A. Yes.
Q.—on your drive? Did you tell her that you could hit that green with your drive?
A. I told her that I could knock it on that green.
Q. And she said everybody thinks that?
A. I don't know if those were her exact words, but along those lines.
Q. But she, nonetheless, instructed you to hit?
A. Yes.
Q. Were you reluctant to do that?
A. I told her I cannot hit.
Q. And she said hit anyway?
A. Yes.
[¶ 8] Mr. Veesart proceeded as Ms. Irvine directed and teed off Hole # 1. Mr. Veesart pushed his tee shot to the right of the green but did not yell “fore.” The tee shot struck Mr. Creel on the side of his head, and he fell to the ground. Josh Creel then ran down the fairway alerting the Veesart foursome that his father had been hit and calling for an ambulance. Mr. Veesart went to Mr. Creel's side and said, He also told the Creels that he would have been disqualified had he not hit the ball. We shall provide pertinent additional facts in our discussion below.
[¶ 9] In March of 2009, the Creels filed a complaint that named Mr. Veesart as the sole defendant. The complaint alleged that Mr. Veesart negligently caused the ball to be struck and negligently failed to warn the golfers and spectators within range of the incoming golf ball. Subsequently, the Creels amended the complaint to add Ms. Irvine and L & L as defendants. The amended complaintalleged negligence on the part of Ms. Irvine for directing Mr. Veesart to hit his drive and for failing to warn the golfers and spectators, and negligence by L & L for failing to adequately train Ms. Irvine. In January of 2010, the complaint was amended a second time, and the second amended complaint added Lew Lepore and Mike Lepore as individual defendants, with it being asserted that they were engaged in the management and supervision of the golf tournament.
[¶ 10] L & L moved for summary judgment on the ground that getting hit by a golf ball is an inherent risk of playing or being a spectator at a golf tournament and that the Wyoming Recreation Safety Act thus barred the Creels' claims. Ms. Irvine separately moved for summary judgment, asserting that, as a voluntary starter at the Wyoming Open, she did not owe the Creels any legal duty of care. Finally, Mr. Veesart moved for summary judgment on the ground that he had no duty either to protect participants and spectators from the inherent risks of golf or to warn such individuals of those inherent risks.
[¶ 11] In opposition to the summary judgment motion of L & L, the Creels argued: (a) there were genuine issues of material fact concerning whether the golf tournament was being negligently run by failing to properly mark safe observation areas for the tournament spectators; (b) the injuries sustained by Mr. Creel were not the result of inherent risks to the game of golf, rendering the Recreation Safety Act inapplicable; and (c) Mr. Creel was a spectator at the tournament and not a participant as contemplated by the Recreation Safety Act. In response to Kathy Irvine's motion for summary judgment, the Creels responded: (a) Ms. Irvine owed a duty of care to the Creels both in her individual capacity, as well as in her capacity as an agent for L & L; and (b) material issues of fact were in dispute concerning the existence of the agency relationship as well as whether a legal duty existed. Finally, responding to the motion for summary judgment of Mr. Veesart, the Creels asserted that the Recreation Safety Act should not bar the pending claims against him because the Act does not immunize a participant from acting recklessly and negligently during the course of play.
[¶ 12] The district court granted summary judgment to all of the defendants except Mr. Veesart. In granting summary judgment the court found, in part:
The main crux of both the primary assumption of risk doctrine and the WRSA is the absence of a duty to protect from risks inherent in a sporting activity. This Court finds the WRSA to be in essence a legislative adoption of the common law principle. See Hal[ p] ern v. Wheeldon, 890 P.2d 562 (Wyo.1995) ().
The WRSA removes a duty to protect from inherent risks of a sport, but it does not bar recovery for all risks. Walters v. Grand Teton Crest Outfitters, Inc., 804 F.Supp. 1442, 1445 (D.Wyo.1992). Relating to the primary assumption of risk doctrine, several jurisdictions note that there is a duty to not increase the inherent risks of a sport. See e.g. Cotty v. Town of Southampton, 64 A.D.3d 251, 254, 880 N.Y.S.2d 656 (...
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Court Summaries
...is not sufficient to raise a claim for breach of the covenant of good faith and fair dealing. James and Brenda Creel v. L&L, Inc. et al, 2012 WY 124 S-11-0138 September 14, 2012 This case provides a decision involving the Recreational Safety Act (hereinafter "Act"). James and Brenda Creel (......