Ludwikoski v. Kurotsu

• Court: U.S. District Court — District of Kansas
• Citation: Ludwikoski v. Kurotsu, 875 F.Supp. 727 (D. Kan. 1995)
• Decision Date: 13 January 1995
• Docket Number: No. 93-2155-JWL.,93-2155-JWL.
• Parties: Florence A. LUDWIKOSKI, Plaintiff, v. Ryoji KUROTSU, Defendant.

875 F. Supp. 727

Florence A. LUDWIKOSKI, Plaintiff, v. Ryoji KUROTSU, Defendant.

No. 93-2155-JWL.

United States District Court, D. Kansas.

January 13, 1995.

COPYRIGHT MATERIAL OMITTED

Mark C. Owens, Bennett, Lytle, Wetzler, Martin & Pishny, L.C., Prairie Village, KS, for plaintiff.

R. Douglas Gentile, Baker, Sterchi & Cowden, Kansas City, MO, Robert M. Carroll, Baker, Sterchi & Cowden, Overland Park, KS, for defendant.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

I. Introduction

This action is brought by plaintiff Florence Ludwikoski, who was hit in the face and eye by a golf ball she claims was hit by the defendant. She alleges that defendant Ryoji Kurotsu was negligent in the manner in which he hit the ball, and that her injuries are a direct result of his negligence. The matter is currently before the court on defendant's motion for summary judgment (Doc. # 46). For the reasons set forth below, defendant's motion is granted.

II. Factual Background

On October 10, 1991, defendant and his associate were in Kansas City discussing business with two executives of Butler Manufacturing Company. The four men had lunch together at the offices of Butler Manufacturing. Defendant did not consume any alcohol during lunch. After lunch, the four men went to the Mission Hills Country Club to play golf. At that time, defendant was sixty-six years old and had been playing golf for nearly thirty years. He played golf dozens of times a year, had received professional training and, at one point, had a handicap of 22.

The golf game started at approximately 1:00 p.m. The weather was nice. Defendant did not consume any alcohol during the golf game. On each of the first seventeen holes, defendant's tee shot was straight down the fairway with no hook and only an occasional fade to the right. He had a smooth, consistent swing, knew how to hold the club, and understood the game and its rules of etiquette. The foursome was taking its time, and there was no rush to finish the game.

The foursome arrived at the 18th tee at approximately 5:00 p.m. The 18th hole is basically a straight par 5 that parallels Belinder Road. A fence separates the golf course from the road, along with a row of trees. Defendant took the same amount of time and preparation before his tee shot as he did on the previous 17 holes. He did nothing different or unusual on the 18th tee. His intended line of flight for the ball was down the center of the fairway. He saw no one in his intended line of flight and neither he nor any other member of the foursome was aware that plaintiff was sitting in a car in a driveway across the street from the golf course. Neither defendant nor any other member of the foursome yelled any type of warning prior to the shot.

At approximately the same time the foursome arrived at the 18th tee, plaintiff was leaving an estate sale where she had been working all day. The estate sale was being held at a private home located on Belinder Road across the street from the golf course. The driveway of the house was approximately 100 yards north of the 18th tee. Plaintiff left the house and went to her car, which was parked on the street. She started her car and pulled into the driveway of the house where the estate sale was being held so she could turn around. As she did so, she saw a friend coming out of the front door of the house. As she was waiting to talk to her friend, the engine of her car running, defendant hit his tee shot.

Defendant's tee shot went straight for 25-30 yards and then hooked to the left. When defendant and his fellow golfers saw the ball begin to hook, they all yelled "FORE" as loudly as possible. The ball traveled over the perimeter fence, through a group of trees planted by the golf course to prevent errant shots from leaving the course, over Belinder Road, through another group of trees and into plaintiff's open car window, striking plaintiff in the eye and face. Defendant and his fellow golfers lost sight of the ball as it entered the first row of trees and did not see it again. Neither plaintiff nor the persons she was speaking with heard any type of warning prior to plaintiff being struck in the face by the ball.

Defendant and the other members of the foursome did not hear any response to their yells of "FORE," so the remaining three golfers hit their tee shots. As they proceeded up the fairway after the tee shots, they saw a man at or near the perimeter fence motioning to them to come over to the fence. They learned at that time that the ball had hit plaintiff, who was pointed out to them. That was the first time defendant or the other golfers had seen plaintiff or her car.

III. Summary Judgment Standards

A motion for summary judgment gives a judge an initial opportunity to assess the need for a trial without weighing the evidence or determining credibility. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. at 2511-12.

The party who files a motion for summary judgment has the initial burden of demonstrating the absence of a genuine issue of material fact concerning its claims. This burden may be met by showing that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. The nonmoving party may not simply rest on its pleadings in the case but has the affirmative duty to come forward with facts to establish that a genuine issue exists necessitating a trial in the case. Id. Thus, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider the record in the light most favorable to the party opposing the motion. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985). More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex, 477 U.S. at 327, 106 S.Ct. at 2555.

IV. Discussion

Plaintiff alleges that the defendant "caused a golf ball to be launched from the 18th tee in such a negligent and careless manner so as to leave the premises of the Mission Hills Country Club." She further alleges that as a result of defendant's negligence, she was struck in the face and eye with the ball, causing severe and permanent injuries. In essence, plaintiff proceeds on three separate negligence grounds, those being that: (1) defendant hit his tee shot in a negligent manner; (2) defendant failed to give a warning prior to hitting his tee shot; and (3) defendant gave an inadequate warning after hitting his tee shot.

In order to state a negligence claim under Kansas law,¹ plaintiff must allege the existence of a duty, a breach of that duty, an injury, and a causal connection between the duty breached and the injury suffered. Nero v. Kansas State University, 253 Kan. 567, 861 P.2d 768 (1993). Whether a duty exists is a question of law. Honeycutt v. City of Wichita, 251 Kan. 451, Syl. 8, 836 P.2d 1128 (1992).

It is generally established that the mere fact that a person is struck by a golf ball driven by a person playing the game of golf does not constitute proof of negligence on the part of the golfer who hit the ball, and that a golfer is only required to exercise reasonable care for the safety of persons reasonably within the range of danger of being struck by the ball. See Ludwikoski v. Kurotsu, 840 F.Supp. 826, 827 (D.Kan.1993); Fink v. Klein, 186 Kan. 12, 348 P.2d 620 (1960).² See generally David M. Holliday, Annotation, Liability to One Struck by Golf Ball, 53 A.L.R. 4th 282, 289 (1987); Rinaldo v. McGovern, 78 N.Y.2d 729, 587 N.E.2d 264, 579 N.Y.S.2d 626 (1991).

The court finds that the plaintiff has put forward no evidence to support a finding by a reasonable jury that the defendant hit his tee shot in a negligent manner. The uncontroverted evidence is that plaintiff was an experienced golfer who plays dozens of times a year, that he has had professional training, and that he constantly practices. Further, the evidence is uncontroverted that plaintiff had consumed no alcohol prior to the time he hit his fateful tee shot, that he had a smooth consistent swing, that he knew how to properly hold the club, that his tee shots on the first seventeen holes were straight down the fairway with no hook and only an occasional fade to the right, that he took the same amount of time and preparation on the 18th tee as he did on the 17 previous tee shots, and that he did nothing different or unusual on the 18th tee.

Plaintiff comes forward with no evidence that controverts defendant's statement that he executed his shot on the 18th hole in the same manner as he did every other tee shot. Her only effort along those lines is a bald assertion that "it is not unusual for a golfer to attempt to hit a longer shot on a par 5 hole by intentionally putting somewhat of a hook spin on...