Hames v. State

Decision Date08 April 1991
Docket NumberNo. 1,1
Citation808 S.W.2d 41
PartiesRebecca L. HAMES, Plaintiff-Appellee, v. STATE of Tennessee, Defendant-Appellant. /. 808 S.W.2d 41
CourtTennessee Supreme Court

Jackson C. Raulston, Kingsport, for plaintiff-appellee.

Charles W. Burson, Atty. Gen. and Reporter, John Knox Walkup, Sol. Gen., Michael W. Catalano, Deputy Atty. Gen., for defendant-appellant.

OPINION

DROWOTA, Justice.

In this wrongful death case, the State of Tennessee, Defendant-Appellant, appeals the decision of the intermediate appellate court awarding $300,000.00 to the Plaintiff, Rebecca Hames, Plaintiff-Appellee. The sole issue in this appeal is whether the absence of lightning proof shelters or devices to warn golfers of thunderstorms on a golf course owned and operated by the State of Tennessee, constitutes a negligently created or maintained dangerous condition within the meaning of T.C.A. Sec. 9-8-307(a)(1)(C). 1 For the reasons set forth below, we reverse and remand.

The proof at trial revealed that the decedent, Phillip Hames, 36 years old at the time of his death on July 3, 1987, was employed as an organist and choir master at the First Presbyterian Church at Kingsport. He graduated from college magna cum laude with a music degree. He was regarded as a musical genius and hoped to ultimately become a concert pianist.

The decedent's wife testified that her husband began to develop an interest in golf in the fall of 1986. She testified that he played at least 20 times and that most of those rounds were played at the Warrior's Path State Park where he was struck by lightning on July 3, 1987. On that particular day, the decedent and two golfing companions checked out carts and began to play at approximately 1:45 p.m. Although the weather was overcast, there were no signs or warning devices informing players what to do in case of violent weather. There were no weather shelters on this particular course although funding for them had been requested over a ten year period. The cost of constructing one lightning proof shelter was estimated to be $4,500.00. Approximately 25 minutes after the three men began to play, a thunderstorm moved over the golf course area. Lightning began at about this time and continued until approximately 2:30 p.m. Shortly thereafter, the three golfers were discovered underneath two trees after having been struck by lightning. The trees were located on a small hill, proving to be a deadly combination. The Plaintiff's decedent was instantly rendered brain dead upon being struck by the lightning. The death certificate indicates that he died from cardiac arrest due to electrocution by lightning.

The record establishes that although the decedent was not an expert golfer, he was certainly familiar with the layout and grounds of the golf course and had previously played golf at Warrior's Path State Park. On the day he was struck by lightning, no signs were posted warning golfers to seek cover in the event of a thunderstorm and no effort was made to clear the golf course by course employees. The Plaintiff contends this is significant because Warrior's Path State Park golf course operated under the United States Golf Association's rules. These rules specifically warn of the dangers of lightning to golfers and make suggestions for the prevention of such danger. The USGA recommends the posting of notices outlining these dangers and precautions to minimize them. An electrical engineer who testified on behalf of the State stated that it was possible to design a lightning proof shelter on golf courses. The electrical engineer further testified that lightning is a well known hazard on golf courses and that it presented no greater hazard there than in any other open area. Significantly, there was expert testimony that no recognized standard existed that golf courses be equipped with lightning proof shelters or with warning devices, although some golf courses in state parks are equipped with shelters. 2 A golf course architect and engineer testified that he and his consulting firm have designed approximately 45 golf courses throughout the southeast of which none had provisions for any type of lightning proof shelters. Of the approximately two hundred courses that the golf course architect has been on, very few had warning devices. This particular expert, who is also an avid golfer, stated:

"I think golfers are such that they understand the basic rules or they should understand the basic rules. Whether it's golfing or boating there are some things that let's say are kind of unwritten laws or things that you learn as one grows up and I think whether you're out on a lake and you see a storm coming up or whether you're out on a golf course and you see a storm coming up you learn to stop and go to the club house or you learn to stop and go to the bank and seek cover."

A professional golfer, who has played on three to four hundred different courses, testified that he has never played for enjoyment or for practice when warning sirens were in place; such devices are used only to stop tournaments. The manager of the golf course subject to dispute here testified that the distance from where Mr. Hames was struck by lightning to the clubhouse was about 800 yards and that it would have taken less than two minutes to get there in a golf cart. The manager, referring to other golfers on the course, stated that "most everyone had gone in."

The Plaintiff sued the State of Tennessee for the wrongful death of her husband. The complaint was predicated upon the theory that, although lightning is generally regarded as an act of God, the death was the result of the State's negligence in failing to erect lightning proof shelters or maintaining a warning system to vacate the golf course during electrical storms. In the State's response, it was affirmatively asserted that the decedent died from dangers the risk of which he assumed, that he, himself, was negligent by seeking shelter under a tree on a hill, and that the death resulted from an act of God as opposed to actions (or inactions) taken by the State as owner and operator of the golf course. When the matter was tried in 1989, the Claims Commissioner found in favor of the State, reasoning that there is no industry standard requiring storm shelters or warning devices and that "common knowledge tells one that lightning is dangerous." The Commissioner stated:

"It is common knowledge by persons of ordinary or greater intelligence, such as Mr. Hames, that lightning is a powerful, deadly, and potent act of God and nature. While negligence of man, when combined with an act of God is actionable, if the injury would not have resulted but for the negligent act, the absence of a horn does not seem to be such an act. Lightning is accompanied by thunder, the ominous sound of the approach of the power in the storm. No warning device could be louder or be more accurate than thunder. Thunder warns all persons that lightning is near. It just does not seem that man can devise any warning device which approaches the efficiency of thunder. The absence of a warning device would not create a dangerous condition on state controlled real property. Furthermore, claimant contends that the State either did not have a policy to clear the course during storms, or should have had one, or if they had, they did not follow that policy. The Commissioner finds from listening to the proof that no policy existed to clear the course. Further, the absence of this policy did not create a dangerous condition on state controlled real property. Nor was there evidence that the industry standard required such a policy.

Also, the absence of signs concerning lightning ... were contended to create a dangerous condition by failure to warn of the dangers of lightning, and the precautions to take. Again, common knowledge tells one that lightning is dangerous. It does not seem to the Commissioner that the absence of the signs creates or maintains a dangerous condition on state controlled real property."

Finding that the evidence preponderated against the conclusions of the Commissioner, the Court of Appeals reversed and awarded the Plaintiff $300,000.00. The intermediate appellate court found that the State had notice of a dangerous condition established by "the evidence not adhering to the rules of the golfing association, repeated requests for shelters by park employees before the incident, and the park manager's observation in an official memorandum that these deaths might not have occurred had shelters been available." The Court also rejected the contributory negligence defense, opining that there was no evidence that the deceased possessed any particular knowledge as to the hazards of lightning on golf courses. The Court went on to state that "[t]he failure to post signs warning of the hazards of lightning on the golf course coupled with the failure to provide lightning proof shelters, along with the lack of a policy to clear the...

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