Schmidt v. Youngs, Docket No. 171695

• Decision Date: 19 January 1996
• Docket Number: Docket No. 171695
• Citation: 544 N.W.2d 743,215 Mich.App. 222
• Parties: Frederick SCHMIDT, Plaintiff-Appellant, v. Robert YOUNGS, III, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 743

544 N.W.2d 743

215 Mich.App. 222

Frederick SCHMIDT, Plaintiff-Appellant, v. Robert YOUNGS, III, Defendant-Appellee.

Docket No. 171695.

Court of Appeals of Michigan.

Submitted June 20, 1995, at Detroit.

Decided Jan. 19, 1996, at 9:00 a.m.

Released for Publication March 19, 1996.

Rifkin & Kingsley, P.C. by Michael J. Kingsley, Southfield, for plaintiff.

State Farm Fire & Casualty Company by Donna M. Skelcy, Southfield, for defendant.

Before HOLBROOK, P.J., and MICHAEL J. KELLY and KELLY, ^* JJ.

HOLBROOK, Presiding Judge.

In this personal injury case, plaintiff appeals as of right from a circuit court order granting summary disposition for defendant pursuant to MCR 2.116(C)(8). We affirm.

On May 8, 1991, plaintiff and defendant were playing golf in a foursome at the Rochester Hills Golf Club. After their second shots on the first hole of play, defendant's ball was furthest from the hole, meaning that he would play next. Rather than stay behind defendant's ball, as is customary, plaintiff drove his golf cart in front of defendant's ball, parked it next to a large tree that was to the right of the green, and positioned himself behind that tree for protection. When defendant's preparation time for his shot exceeded several minutes (between two and five minutes), plaintiff's impatience led him to turn around just as defendant hit his ball. Defendant's shot was shanked to the right, which he apparently had a propensity to do, and the ball struck plaintiff in the eye, causing serious injury.

Plaintiff's complaint alleged that defendant had breached his duty to give an adequate and timely warning to plaintiff of his intention to strike the ball and of its errant flight in plaintiff's direction after being struck. Defendant moved for summary disposition, asserting that he had no commonlaw or statutory duty to warn. The trial court agreed with defendant and granted him summary disposition pursuant to MCR 2.116(C)(8).

I

Whether a defendant owes any duty to a plaintiff to avoid negligent conduct in a particular circumstance is a question of law for the court to determine. Simko v. Blake, 448 Mich. 648, 655, 532 N.W.2d 842 (1995). Where no legal duty exists, the plaintiff has failed to state a claim upon which relief can be granted and summary disposition in favor of the defendant is appropriate pursuant to MCR 2.116(C)(8). Schneider v. Nectarine Ballroom, Inc. (On Remand), 204 Mich.App. 1, 4, 514 N.W.2d 486 (1994).

The general rules regarding the liability of a golfer have been summarized as follows:

A person who engages in the game of golf is not an insurer of the safety of others, and he is only required to exercise ordinary care for the safety of persons reasonably within the range of danger.

Generally, one who is about to strike a golf ball must, in the exercise of ordinary care, give an adequate and timely notice to those who are unaware of his intention to play and who may be endangered by the play. Conversely, there is no duty to give advance warning to persons who are on contiguous holes or fairways, and not in the line of play, if danger to them is not reasonably to be anticipated. Also, where the person injured was in a place where he should have been reasonably safe, and he was aware of the player's intention to play the ball, an oral or audible warning would have been superfluous and is therefore unnecessary. [4 Am.Jur.2d, Amusements and Exhibitions, § 87, pp. 211-212 (1995 interim pamphlet).]

See also anno. Liability to one struck by golf ball, 53 A.L.R.4th 282, § 2; Williams v. Wood, 260 Mich. 322, 326; 244 N.W. 490 (1932) (citing, in dicta, the general rules of liability in golf).

Here, there is no dispute that plaintiff knew defendant was preparing to shoot next, that plaintiff drove his golf cart in front of defendant's ball in contravention of common sense and custom, that plaintiff intended to place himself outside the line of defendant's shot by positioning himself behind a tree, and that plaintiff was struck when he moved from his place of safety behind that tree. Under such facts, defendant had absolutely no duty to issue an audible warning to plaintiff upon striking his ball because plaintiff was aware of defendant's intention to play and, to the extent that plaintiff had positioned himself to the right of the green and behind a tree, he was not in the line of play. Cardozo had it right when he summarized the lesson to be learned from this type of case: "The timorous may stay at home." ¹

Accordingly, summary disposition for defendant was properly granted pursuant to MCR 2.116(C)(8). ²

II

The trial court's passing reference to the doctrine of assumption of risk was not inappropriate under these facts.

Language to the effect that a plaintiff "assumed the risk" of injury has long been misapplied and misinterpreted by the courts of this state and others. In Felgner v. Anderson, 375 Mich. 23, 133 N.W.2d 136 (1965), our Supreme Court conceded that, in a long line of precedent, it had inadvertently broadened the scope of the doctrine of assumption of risk beyond its proper boundaries. Hence, the Court held that assumption of risk may not be asserted as a defense in an ordinary negligence case, except in limited circumstances consistent with the doctrine's common-law origins. Id. at 56, 133 N.W.2d 136.

Recognizing the inexactness surrounding its use, some courts have divided the assumption of risk doctrine into its "primary" and "secondary" senses. Felgner, supra at 54, 133 N.W.2d 136, citing Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90 (1959). In its "primary sense," assumption of risk means that either the defendant owed no duty or did not breach any duty owed to the plaintiff, while, in its "secondary sense," the doctrine is used as an affirmative defense to an established breach of duty, i.e., the plaintiff's contributory negligence. Felgner, supra. The fallacy of the doctrine's "secondary sense" is widely recognized, leading to its banishment, yet the bench and bar continue to " 'cling to the terminology of assumption of risk and continue to be misled by it.' " Id. at 55, 133 N.W.2d 136, quoting McGrath v. American Cyanamid Co., 41 N.J. 272, 196 A.2d 238 (1963).

Pertinent for our purposes, the Felgner Court, supra at 45, n. 6, 133 N.W.2d 136, explained:

Another type of case falling within this general classification, where assumption of risk is [inappropriately] used to limit the scope of a defendant's liability, is the sport spectator case. Although there is authority for the proposition that a spectator injured while attending a baseball game, e.g., by being struck by a ball, may be met with the affirmative defense that he "assumed this particular risk of injury," Waltanen v. Wiitala, 361 Mich. 504, 509 [; 105 N.W.2d 400 (1960) ], the correct rule is stated in Williams v. Wood, 260 Mich. 322, 327 [244 N.W. 490 (1932) ].

"The general rule that may be deduced from the cases hereinbefore cited is that certain risks of accident attend all outdoor sports and recovery may be had only if an injury is the result of negligence that could and should have been avoided by the use of ordinary care."

The correctness of this statement may have been obscured by the fact that elsewhere in the opinion the Court implicitly approved the use in such cases of the terminology of assumed risk. E.g., 260 Mich. 322, 330 .

Thus, analysis indicates that the spectator's suit is barred not by his assumption of risk but rather by a lack of negligence on the part of the park owner. This, of course, is in the ordinary instance of a batted ball flying into unscreened stands. Certainly the situation would be different if a spectator sitting in a screened portion of the stands were injured because a batted ball passed through a hole which the park owner had neglected to repair. Then the owner might be liable for negligence and the spectator would not be barred by any "assumption of risk."

Simply put, one may consent to the inherent risks of being a spectator or participant in a sport, but one does not ordinarily consent to another's negligence.

Here, defendant owed no duty to plaintiff to protect him from injuries that might result from the ordinary and ever-present risks of the sport of golf, as contrasted with those injuries that might be caused by defendant's lack of due care. Felgner, supra at 43, 133 N.W.2d 136. To the extent that plaintiff's injury was not the result of any breach of duty by defendant, the assumption of risk doctrine played a role only in its "primary sense."

Affirmed.

KELLY, J., concurs.

KELLY, Judge (dissenting).

The majority affirms a circuit court order that granted defendant's summary disposition motion pursuant to MCR 2.116(C)(8). I would reverse.

On May 8 or May 18, 1991, plaintiff and defendant were playing golf in a foursome at the Rochester Hills Golf Club, Oakland County, Michigan. Plaintiff, Frederick Schmidt, was paired in a motorized or mechanized golf cart with Ken Kraus and defendant Robert Youngs was paired in another cart with Earl Giraldi. An injury occurred on the first hole of play. All players had hit their tee shots and all players save defendant had hit their second shots down the fairway toward the green and were proceeding to make their third and hopefully final shots to the green. Defendant's second shot was off the fairway to the right and short. Defendant's cart was driven to the area where defendant's ball had landed. Plaintiff drove his cart up to the front of the green but off in the rough so that the rear of plaintiff's cart was backed up to a tree. Defendant was away, being farther from the green than plaintiff, and it was therefore defendant's turn to hit. When defendant struck the ball, it hit plaintiff.

Plaintiff claims that defendant initially warned plaintiff that defendant was going to hit his shot but then waited approximately three minutes before actually taking his shot without making a second or...