Schmidt v. Courtney

• Decision Date: 22 December 2003
• Docket Number: No. 3719.,3719.
• Citation: 592 S.E.2d 326,357 S.C. 310
• Court: South Carolina Court of Appeals
• Parties: Wayne SCHMIDT and Terri J. Schmidt, Appellants, v. Michael C. COURTNEY and Kemper Sports of Crowfield, Inc. d/b/a Crowfield Golf & Country Club and Westvaco Development Corporations, Of Whom Kemper Sports of Crowfield, Inc. d/b/a Crowfield Golf & Country Club, is, Respondent.

357 S.C. 310

592 S.E.2d 326

Wayne SCHMIDT and Terri J. Schmidt, Appellants, v.Michael C. COURTNEY and Kemper Sports of Crowfield, Inc. d/b/a Crowfield Golf & Country Club and Westvaco Development Corporations, Of Whom Kemper Sports of Crowfield, Inc. d/b/a Crowfield Golf & Country Club, is, Respondent.

No. 3719.

Court of Appeals of South Carolina.

Heard December 9, 2003.

Decided December 22, 2003.

Rehearing Denied February 20, 2004.

Joseph F. Kent, of Mt. Pleasant, for Appellants.

Stephen E. Darling and C. Bowen Horger, II, of Charleston, for Respondent.

ANDERSON, J.:

Wayne Schmidt(Schmidt) and Terri J. Schmidt initiated a negligence action against Michael Courtney for injuries Schmidt sustained when he was struck in the head by a golf ball while roofing a house located adjacent to a golf course.Kemper Sports of Crowfield, Inc.(Kemper Sports) was later joined on claims of negligent design, operation, and maintenance of the golf course.The circuit court judge granted Kemper Sports' motion for summary judgment.Schmidt appeals.We reverse and remand.

FACTS/PROCEDURAL BACKGROUND

On August 27, 1998,¹ Schmidt was roofing a house located at 113 Waveney Circle in the Hamlets section of the Crowfield Development in Goose Creek, South Carolina.The home is adjacent to the Crowfield Golf and Country Club, which is owned and operated by Kemper Sports.Several oak trees stand between the house and golf course.

While Schmidt was roofing, Courtney was playing golf at the Crowfield Golf and Country Club.When Courtney made his tee shot on the Number 11 fairway, he hooked his ball, causing it to fly out of the boundaries of the course and over to the house where Schmidt was working.The golf ball struck Schmidt in the back of his head and knocked him unconscious.A fellow worker caught Schmidt and prevented him from falling off the roof.Schmidt suffered permanent brain damage from the injury and has been unable to work since the accident.

Schmidt initially filed a negligence suit against Courtney.Schmidt later joined Kemper Sports in the action, alleging negligent design, construction, operation, and maintenance of the golf course.After filing its answer, Kemper Sports then moved for summary judgment.

At the summary judgment hearing, Schmidt's counsel, Joseph F. Kent, presented information regarding an expert witness he located on May 7, 2002, just a few weeks after Kent received notice of the motion for summary judgment.The expert witness, Gerald W. Pirkl, specializes in golf course safety, design, and maintenance.Kent professed: "We were very long in finding this gentleman, Your Honor.I believe that before the case is over that it is going to turn out that Mr. Pirkl is the most experienced person by way of expert witnesses in this area."Kent requested the court consider his affidavit which identified Pirkl and set forth what Pirkl would likely state during testimony.In his affidavit, Kent declared:

I, Joseph F. Kent, counsel for the Plaintiffs in this action, having been duly sworn do depose and state as a proffer of evidence in this case, as follows:

1.Full and complete diagnosis of the closed head brain injuries sustained by Wayne Schmidt while working at the residence known as 113 Waveney was not accomplished until about the first of December 1999.

2.Counsel knows of no cases in this jurisdiction concerning the liability for negligent golf course design, maintenance or operation.

3.Counsel has found relatively few cases arising in the country from claims of negligent golf course design, maintenance or operation resulting in personal injuries to innocent parties outside of the bounds and property of golf courses.

4.Counsel has testimony of experienced golfers and an expert in the design of golf courses that foreseeable fields of play for tee shots often extend beyond the bounds of certain fairway boundaries and that such an extended field of play was foreseeable for the fairway and tee boxes in this case.

5.Counsel has retained an expert in golf course design, Gerald W. Pirkl, of Dana Point, California who counsel believes will testify that the design of the fairway and tee boxes in this case bring the house at 113 Waveney Circle into a foreseeable area of play as counsel understands that area to be defined by the United States Golf Association.

6.Counsel believes that the constructed contour and topography of the fairway in this case eliminates or substantially reduces the opportunity to play a first shot on the subject hole on the design centerline of the fairway.

7.Counsel believes that the said expert will further testify that tee shots from the most distant tee box position at the fairway in question reduces the available shot angle for fairway center line both as that line was designed and perceived by golfers in the tee boxes.

8.Counsel believes that the evidence in this case will be that together with the house location of the house in the predictable field of play for this fairway, that the golf course operator failed to provide adequate screening or fairway map information to reasonably guard and protect against innocent parties outside of the golf course coming within the predictable flight of tee shots from the fairway in this case.

9.Counsel has already begun to shoot aerial photographs of the subject fairway and tee boxes necessary for a written opinion with specifications concerning the deficiencies of the design, maintenance and operation of the Defendant Kemper in this case.

10.Counsel anticipates a first written report from his expert landscape architect within about two weeks and supplemental discovery responses of aerial photography on May 13, 2002.

Kent explained that he expected a final report from Pirkl "before the end of th[e] month."The judge determined the issue of the expert witness was not before the court because Kent did not timely file the affidavit.

The circuit judge granted Kemper Sports' motion for summary judgment.Schmidt filed a motion to reconsider, which the court denied.

STANDARD OF REVIEW

When reviewing the grant of a summary judgment motion, the appellate court applies the same standard which governs the trial court under Rule 56(c), SCRCP: summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.Laurens Emergency Med. Specialists v. M.S. Bailey & Sons Bankers,355 S.C. 104, 584 S.E.2d 375(2003);Fleming v. Rose,350 S.C. 488, 567 S.E.2d 857(2002);Regions Bank v. Schmauch,354 S.C. 648, 582 S.E.2d 432(Ct.App.2003);Redwend Ltd. P'ship v. Edwards,354 S.C. 459, 581 S.E.2d 496(Ct.App.2003).In determining whether any triable issue of fact exists, the evidence and all inferences which can reasonably be drawn therefrom must be viewed in the light most favorable to the nonmoving party.Sauner v. Public Serv. Auth.,354 S.C. 397, 581 S.E.2d 161(2003);Hendricks v. Clemson Univ.,353 S.C. 449, 578 S.E.2d 711(2003);McNair v. Rainsford,330 S.C. 332, 499 S.E.2d 488(Ct.App.1998);see alsoLaurens Emergency Med. Specialists,355 S.C. at 108,584 S.E.2d at 377(stating that in reviewing summary judgment motion, facts and circumstances must be viewed in light most favorable to non-moving party).If triable issues exist, those issues must go to the jury.Baril v. Aiken Reg'l Med. Ctrs.,352 S.C. 271, 573 S.E.2d 830(Ct.App.2002);Young v. South Carolina Dep't of Corrections,333 S.C. 714, 511 S.E.2d 413(Ct.App.1999).

Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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.Russell v. Wachovia Bank, N.A.,353 S.C. 208, 578 S.E.2d 329(2003);Regions Bank,354 S.C. at 659, 582 S.E.2d at 438;Rule 56(c), SCRCP.All ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the moving party.Bayle v. South Carolina Dep't of Transp.,344 S.C. 115, 542 S.E.2d 736(Ct.App.2001);see alsoFerguson v. Charleston Lincoln Mercury, Inc.,349 S.C. 558, 563, 564 S.E.2d 94, 96(2002)("On appeal from an order granting summary judgment, the appellate court will review all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the non-moving party below.").

Under Rule 56(c), SCRCP, the party seeking summary judgment has the initial burden of demonstrating the absence of a genuine issue of material fact.Regions Bank,354 S.C. at 659, 582 S.E.2d at 438;Trivelas v. South Carolina Dep't of Transp.,348 S.C. 125, 558 S.E.2d 271(Ct.App.2001).Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary support for the opponent's case, the opponent cannot simply rest on mere allegations or denials contained in the pleadings.Regions Bank,354 S.C. at 660, 582 S.E.2d at 438.Rather, the nonmoving party must come forward with specific facts showing there is a genuine issue for trial.SSI Med. Servs., Inc. v. Cox,301 S.C. 493, 392 S.E.2d 789(1990);Peterson v. West American Ins. Co.,336 S.C. 89, 518 S.E.2d 608(Ct.App.1999);Rule 56(c), SCRCP.The purpose of summary judgment is to expedite disposition of cases which do not require the services of a fact finder.Dawkins v. Fields,354 S.C. 58, 580 S.E.2d 433(2003);George v. Fabri,345 S.C. 440, 548 S.E.2d 868(2001).

LAW/ANALYSIS

Schmidt argues the trial court erred in granting summary judgment to Kemper Sports on this novel claim prior to the opportunity for full and fair discovery.We agree.

I.CONTINUANCE

Kemper Sports alleges in its brief that Schmidt's counsel failed to request a continuance to develop documentation in opposition to summary judgment.Although Kent did not specifically ask for a continuance, it is clear from the transcript of the...