Duffy v. Midlothian Country Club

• Decision Date: 26 July 1985
• Docket Number: No. 83-2805,83-2805
• Citation: 135 Ill.App.3d 429,481 N.E.2d 1037,90 Ill.Dec. 237
• Parties: , 90 Ill.Dec. 237 Alice DUFFY, Plaintiff-Appellee, v. MIDLOTHIAN COUNTRY CLUB, an Illinois not-for-profit corporation, and the Western Golf Association, an Illinois not-for-profit corporation, Defendants- Appellants, and Dow Finsterwald, Defendant.
• Court: United States Appellate Court of Illinois

Page 1037

481 N.E.2d 1037

135 Ill.App.3d 429, 90 Ill.Dec. 237

Alice DUFFY, Plaintiff-Appellee, v. MIDLOTHIAN COUNTRY CLUB, an Illinois not-for-profit corporation, and the Western Golf Association, an Illinois not-for-profit corporation Defendants- Appellants and Dow Finsterwald, Defendant.

No. 83-2805.

Appellate Court of Illinois,

First District, Fifth Division.

July 26, 1985.

[90 Ill.Dec. 239] Victor J. Piekarski of Querrey, Harrow, Gulanick & Kennedy, Ltd., Chicago, for defendants-appellants

Donald E. Barliant of Yaffe, Mark, Barliant & Ganellen, Chicago, for plaintiff-appellee.

MEJDA, Presiding Justice:

Defendants-appellants Midlothian Country Club ("Midlothian") and the Western Golf Association ("WGA") ("defendants") appeal from a jury verdict awarding plaintiff-appellee Alice Duffy ("plaintiff") $448,380 in a personal injury action. On appeal, defendants maintain 1) that the trial court improperly prevented defendants from asserting an assumption of risk defense, 2) that the trial court abused its discretion in allowing plaintiff's witness to testify as an expert, and 3) that the cumulative effect of various rulings and the improper conduct of plaintiff's counsel resulted in a jury verdict based on passion and prejudice. We affirm.

On June 29, 1973, plaintiff attended the Western Open professional golf tournament (the "tournament") as a paying spectator. The tournament was held at Midlothian and sponsored jointly by Midlothian and WPA. Plaintiff attended the tournament with her son, her son's friend, and the friend's mother, Audrey Scheufler. Upon their arrival, plaintiff and Mrs. Scheufler went to the first tee and watched a contestant tee off on the first fairway. At this time, and throughout the pertinent time period, plaintiff remained within the roped-off areas reserved for paying spectators. After watching the contestant on the first tee, plaintiff and Mrs. Scheufler walked to a concession tent (tent 1) located south of the first tee and east of a service road which ran across both the first hole and the parallel 18th hole. Not finding what they wanted, plaintiff and Mrs. Scheufler left tent 1 and walked west across the service road, between the first and 18th holes, and into a second concession tent (tent 2).

Following is a sketch which generally depicts the layout of the areas of the first and eighteenth fairways:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

After purchasing refreshments, the two women left tent 2, walked west, and joined a group of spectators watching the first fairway. As plaintiff stood talking and eating her food, she was hit in the eye by a ball shot from the 18th tee by Dow Finsterwald ("Finsterwald") a professional golfer participating in the tournament. As a result, plaintiff has completely lost the sight in her right eye.

Plaintiff subsequently sued for injuries sustained, alleging inter alia that defendants 1) had failed to give plaintiff timely warning of the approaching shot, 2) had failed to restrict or warn plaintiff from a dangerous area, and 3) had failed to provide a reasonably safe environment for a professional golf tournament. ¹ Following discovery, defendants moved for summary judgment. In their motion, defendants maintained that plaintiff, an allegedly experienced golfer, appreciated the risks inherent in a professional golf tournament. Defendants consequently argued that plaintiff had voluntarily assumed a known risk and, therefore, was barred from recovery. The trial court agreed and granted defendants' motion. On appeal, this court reversed and remanded, holding that defendants had a duty of reasonable care toward spectators as business invitees. (Duffy v. Midlothian Country Club (1980), 92 Ill.App.3d 193, 47 Ill.Dec. 786, 415 N.E.2d 1099.) We further ruled that the applicable standard of reasonable care was a variable question of fact for jury determination. Finally, we stated that assumption of risk could be a defense to plaintiff's claim if it could be proven that plaintiff fully appreciated the risks inherent in the situation.

On remand, the jury found that plaintiff had sustained $498,200 in damages which were proximately caused by defendants' negligence. The jury additionally determined that 10% of plaintiff's damages were attributable to her own negligence. Consequently, the award was reduced by 10% to $448,380.

OPINION

I

Defendants initially contend that the trial court improperly prevented their assertion of assumption of risk as a complete defense to plaintiff's claim. Defendants maintain that this court's decision in Duffy v. Midlothian Country Club (1980), 92 Ill.App.3d 193, 47 Ill.Dec. 786, 415 N.E.2d 1099, operates as the law of the case and consequently compels this conclusion. Furthermore, defendants claim that they created no additional risk beyond those risks inherent in the situation which plaintiff, as a spectator, had assumed. Defendants specifically argue that the trial court erred in granting plaintiff's motion in limine to preclude defendants' use of the words "assumption of risk" and "assumed the risk." Defendants additionally argue that the trial court incorrectly refused to instruct the jury concerning assumption of risk as a complete defense.

Plaintiff, on the other hand, rejects these contentions, maintaining that the court's rulings were proper and the verdict just. Furthermore, plaintiff argues that the adoption of comparative negligence in Alvis v. Ribar (1981), 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886, necessarily nullified implied assumption of risk as a complete defense to negligence actions. Plaintiff declares that this conclusion was expressly indicated in Coney v. J.L.G. Industries, Inc. (1983), 97 Ill.2d 104, 73 Ill.Dec. 337, 454 N.E.2d 197, wherein implied assumption of risk was limited by comparative negligence in strict products liability actions. In short, plaintiff not only requests affirmance of the trial ruling and verdict below, but also an express nullification of implied assumption of risk as a defense in negligence actions.

Since its introduction into negligence law, assumption of risk has operated as a complete bar to plaintiffs' recoveries. Such drastic results were supported by the argument that plaintiff had voluntarily assumed an ascertainable risk, thus relieving defendant of all legal duties. The doctrine has subsequently developed into both express and implied forms. Under express assumption of risk, plaintiff and defendant explicitly agree, in advance, that defendant owes no legal duty to plaintiff and therefore, that plaintiff cannot recover for injuries caused either by risks inherent in the situation or by dangers created by defendant's negligence. Under the express form of the doctrine, defendants only sustain liability if their actions are construed as wanton, wilful or reckless, or if damages arise from an agreement deemed contrary to public policy. Prosser, Torts § 68, at 439-45 (4th ed. 1971).

Under the implied form of assumption of risk, plaintiff's willingness to assume a known risk is determined from the conduct of the parties rather than from an explicit agreement. The implied form of the doctrine has itself been subdivided into primary and secondary categories. The primary label has been applied to situations where a plaintiff has assumed known risks inherent in a particular activity or situation. The assumed risks there are not those created by defendant's negligence but rather by the nature of the activity itself. Thus, primary implied assumption of risk is, arguably, not a true negligence defense since no cause of action for negligence is ever alleged. Kionka, Implied Assumption of the Risk: Does It Survive Comparative Fault? 1982 S.Ill.L.J. 371.

Secondary implied assumption of risk, on the other hand, is a true defense since there plaintiff implicitly assumes the risks created by defendant's negligence. Because the secondary doctrine places greater burdens on plaintiff without his express consent, this form of implied assumption of risk has been criticized by both courts and commentators. Indeed, some courts have even refused to allow an implied assumption of risk defense in negligence actions. (See, e.g., Jewell v. Kansas City Bolt & Nut Co. (1910), 231 Mo. 176, 132 S.W. 703.) Until recently, however, most courts have upheld implied assumption of risk as a valid negligence defense if plaintiff's knowledge and volition could be proven. (See, e.g., Kennedy v. Providence Hockey Club, Inc. (1977), 119 R.I. 70, 376 A.2d 329; Bugh v. Webb (1959), 231 Ark. 27, 328 S.W.2d 379.)

Secondary assumption of risk has been viewed as functionally similar to contributory negligence. (See generally, Kionka, Implied Assumption of the Risk: Does It Survive Comparative Fault? 1982 S.Ill.L.J. 371.) This similarity is precisely the rationale used by critics arguing for abolition of the secondary doctrine. These critics maintain that comparative negligence which effectively abolished contributory negligence, should operate similarly on secondary implied assumption of risk. Thus, comparative negligence would prevent assumption of risk from operating as a complete bar to recovery in negligence actions. This argument received support in the supreme court's decision in Coney v. J.L.G. Industries, Inc. (1983), 97 Ill.2d 104, 73 Ill.Dec. 337, 454 N.E.2d 197. In Coney, the court held that comparative fault principles would apply to the apportionment of damages in strict products liability cases. Moreover, the court ruled that defenses of misuse and assumption of risk would no longer bar recovery in products liability actions. Instead, plaintiff's assumption or misconduct would merely be a factor in the apportionment of damages.

Here plaintiff contends that Coney implicitly compels the abolition of the assumption of risk defense as a complete bar to recovery in negligence actions. Additionally, plaintiff has demonstrated that a vast majority of states have...