Kirchoffner v. Quam

• Decision Date: 02 March 1978
• Docket Number: No. 9398,9398
• Citation: 264 N.W.2d 203
• Parties: Joseph F. KIRCHOFFNER, Jr., by his next friend, Joseph F. Kirchoffner, Sr., Plaintiff and Appellee, v. Todd QUAM, Defendant and Appellee, and Maple River Golf Club, Inc., Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 203

264 N.W.2d 203

Joseph F. KIRCHOFFNER, Jr., by his next friend, Joseph F Kirchoffner, Sr., Plaintiff and Appellee, v. Todd QUAM, Defendant and Appellee and Maple River Golf Club, Inc., Defendant and Appellant.

Civ. No. 9398.

Supreme Court of North Dakota.

March 2, 1978.

Rehearing Denied March 30, 1978.

Robert A. Ramlo, Fargo, for plaintiff and appellee.

John E. Rowell of Nilles, Hansen, Selbo, Magill & Davies, Ltd., Fargo, for defendant and appellee.

C. Nicholas Vogel of Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for defendant and appellant.

VOGEL, Justice.

This is an appeal from an order denying a motion for new trial in which the plaintiff, Kirchoffner, was awarded a jury verdict against Maple River Golf Club, Inc., for eye injuries caused when he was struck with a golfball hit by the defendant Quam. The jury found that Kirchoffner was 30 percent negligent, the Golf Club 70 percent negligent, and the defendant Quam not negligent. We affirm.

The issues presented by the appellant Golf Club are three:

1. Whether a 15-year-old golfer is subject to the same standard of care as an adult engaged in the same activity;

2. Whether the jury's finding that Quam was free of negligence was contrary to the great weight of the evidence; and

3. Whether the jury's determination that the Golf Club was negligent and that its negligence was a proximate cause of the plaintiff's injuries and exceeded that of the plaintiff, was against the great weight of the evidence.

At the time of the injury, Quam and two companions were golfers who had paid a fee to play on the course owned by the Golf Club. They were teeing off from the tee on the fifth hole of the golf course.

Kirchoffner, who also was a minor, and his two companions were boating on the Maple River, a shallow, slow-moving stream which flowed through the area of the golf course. The river was intended to be one of the golfing hazards built into the course.

Kirchoffner had never been on the river before, but the persons operating the golf course had observed others boating on the river and had observed some of them recovering golfballs which had gone into the river, and had adopted a policy of not buying such balls and of warning boaters not to attempt to recover balls in the area. A member of the boating party had gone to the clubhouse, once to buy soft drinks and another time to get scissors to cut a rope used to tie up the boat. On the latter occasion, the Kirchoffner companion was told not to look for golfballs in the river. The boaters lingered in the area for 15 minutes or so after this conversation and were aware that they were on or near a golf course.

The pleasures of this rustic scene came to an end when a ball hit by Quam veered to the left and struck Kirchoffner's eye. Quam had golfed for about two years and had a habitual slice (his ball customarily veering to the right), so he aimed his drive toward the left edge of the fairway, about 60 feet from the boaters in the river, expecting the ball to curve to the right. Instead, it veered to the left, as about five percent of his shots ordinarily did. When the ball was in flight and began to veer left, Quam's two companions shouted "fore," but apparently the warning was not heard.

A golf professional, testifying as an expert, testified that in his opinion no precautions were required under the circumstances.

The court instructed the jury on the standard of care of minors, using the approximate language of North Dakota Jury Instruction 103, with some modifications which do not change the meaning. The instruction given by the court was:

"The court instructs the jury that negligence, as applied to a minor child, is the doing of that which an ordinarily prudent person of the age, intelligence, experience and capacity of such child would not do under the same or similar circumstances, or the failure to do that which an ordinarily prudent person of the age, intelligence, experience, and capacity of said child would do under the same or similar circumstances."

The court instructed the jury that the same standard of care applied to both Quam, the golfer, and Kirchoffner, the person injured, since both were minors, and the jury had to consider both the claim of negligence of the one and of contributory (comparative) negligence of the other.

I

The first issue raised is the important question of whether a minor who is engaged in an "adult activity" is to be held to an adult standard of care, or whether the usual rule, stated in the instruction quoted above, will be applied.

The court correctly stated the rule heretofore applied in this State and contained in NDJI 103 as to the duty of a minor generally. Wentz v. Deseth, 221 N.W.2d 101 (N.D.1974); Rau v. Kirschenman, 208 N.W.2d 1 (N.D.1973); Sheets v. Pendergrast, 106 N.W.2d 1 (N.D.1960); Schweitzer v. Anderson, 83 N.W.2d 416 (N.D.1957); Moe v. Kettwig, 68 N.W.2d 853 (N.D.1955).

The appellant, Maple River Golf Club, Inc., now asks us to hold that the court erred in so instructing the jury without a further instruction to the effect that one engaged in an adult activity is held to an adult standard of care.

In none of the prior cases in this State involving the negligence of minors has this question been appropriately raised. In some of them it could not have been raised, in others it was not raised, and in one it was raised inappropriately.

In Moe, supra, the plaintiff was a child who was bicycling, not an adult activity. Prosser on Torts, 4th Ed., Sec. 32, n. 77, p. 157.

In Schweitzer, supra, the child-plaintiff was a pedestrian under seven years of age.

In Sheets, supra, the defendant 17-year-old driver of an automobile appealed from a judgment against her, the plaintiff having prevailed in spite of the instruction that minors were held to a lesser degree of care than adults. Since that instruction favored the appellant, she raised no question as to whether the higher degree of care should have been required.

In Wentz, supra, the injuries arose from classroom activity engaged in while a teacher was absent from the room, so, again, no adult activity was involved.

In Rau, supra, the question of the standard of care of minors engaged in adult activities was raised, but only on appeal, after the standard instruction as to the duty of minors had been given by the trial court without objection. This court held that the instruction was proper under the circumstances and that giving the standard instruction without a further instruction as to the duty of minors engaging in adult activities was not "fundamental" error which this court could review in spite of the fact that the issue had not been raised in the trial court.

This case differs from Rau in two respects: (1) the activity engaged in by the defendant minor was that of golfing, rather than driving an automobile, and (2) in Rau, the parties were given an opportunity to object to the instructions to the jury, while in the present case they were not.

The trial judge in the present case, while giving copies of the jury instructions to counsel, did not ask them to note exceptions to the instructions. This is his prerogative under Rule 51(c), N.D.R.Civ.P. The effect of this procedure is that "The giving of instructions and the failure to instruct the jurors shall be deemed excepted to . . ."

Leaving aside, for the moment, the question of whether golfing or driving an automobile is an adult activity, we believe that the fact that the lawyers had no opportunity to except to the instructions does not differentiate this case from Rau. In neither case was the question of the applicable standard of care of minors engaged in adult activities raised in the trial court prior to verdict. While in the present case the question was raised in the trial court, it was raised only after verdict in a motion for new trial. Thus the trial court had no opportunity to rule upon it during the actual trial of the case, and a ruling in favor of the party moving for a new trial would have required a repetition of the trial on a question not raised during the trial proper. This is, no doubt, one reason why a manifest abuse of discretion must be shown in order to entitle an appellant to a reversal of an order denying a new...