Shin v. Ahn

• Decision Date: 30 August 2007
• Docket Number: No. S146114.,S146114.
• Citation: 165 P.3d 581,64 Cal.Rptr.3d 803,42 Cal.4th 482
• Court: California Supreme Court
• Parties: Johnny SHIN, Plaintiff and Respondent, v. Jack AHN, Defendant and Appellant.

64 Cal.Rptr.3d 803

42 Cal.4th 482

165 P.3d 581

Johnny SHIN, Plaintiff and Respondent, v. Jack AHN, Defendant and Appellant.

No. S146114.

Supreme Court of California.

August 30, 2007.

Barry Bartholomew & Associates, Michael Maguire & Associates and Kathryn Albarian, Glendale, for Defendant and Appellant.

Horvitz & Levy, Barry R. Levy, Mitchell C. Tilner and Jeremy B. Rosen, Encino, for Association of California Insurance Companies, Farmers Insurance Exchange, National Association of Mutual Insurance Companies and Personal Insurance Federation of California as Amicus Curiae on behalf of Defendant and Appellant.

Fred J. Hiestand, Sacramento, for The Civil Justice Association of California as Amicus Curiae on behalf of Defendant and Appellant.

Duane Morris, John E. Gagan, Jill Haley Penwarden, Michael L. Reitzell and Paul J. Killion, San Francisco, for California Ski Industry Association as Amicus Curiae on behalf of Defendant and Appellant.

Knickerbocker Law Corporation, Richard L. Knickerbocker, Santa Monica, Gregory G. Yacoubian; and Michael H. Silvers, San Bernardino, for Plaintiff and Respondent.

Law Office of Daniel U. Smith and Daniel U. Smith, Kentfield, for Consumer Attorneys of California as Amicus Curiae.

CORRIGAN, J.

In Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight), we considered the duty of care that should govern the liability of sports participants. We recognized that careless conduct by coparticipants is an inherent risk in many sports, and that holding participants liable for resulting injuries would discourage vigorous competition. Accordingly, those involved in a sporting activity do not have a duty to reduce the risk of harm that is inherent in the sport itself. They do, however, have a duty not to increase that inherent risk. (See Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 162 & 166, 41 Cal.Rptr.3d 299, 131 P.3d 383.) Thus, sports participants have a limited duty of care to their coparticipants, breached only if they intentionally injure them or "engage[] in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport." (Knight, at p. 320, 11 Cal.Rptr.2d 2, 834 P.2d 696, fn. omitted.) This application of the primary assumption of risk doctrine recognizes that by choosing to participate, individuals assume that level of risk inherent in the sport.

This case represents the next generation of our Knight jurisprudence. Knight, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, involved touch football. We expressly left open the question whether the primary assumption of risk doctrine should apply to noncontact sports, such as golf. (Id. at p. 320, fn. 7, 11 Cal.Rptr.2d 2, 834 P.2d 696.) We address that question here. We hold that the primary assumption of risk doctrine does apply to golf and that being struck by a carelessly hit ball is an inherent risk of the sport. As we explain, whether defendant breached the limited duty of care he owed other golfers by engaging in conduct that was "so reckless as to be totally outside the range of the ordinary activity involved in [golf]" (id. at p. 320, 11 Cal.Rptr.2d 2, 834 P.2d 696) depends on resolution of disputed material facts. Thus, defendant's summary judgment motion was properly denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff and defendant were playing golf with Jeffrey Frost at the Rancho Park Golf Course in Los Angeles. Defendant, the first of the threesome to complete the 12th hole, went to the 13th tee box.¹ Plaintiff and Frost then finished putting and followed him. Frost took the cart path to the 13th tee box, which placed him perpendicular to, or slightly behind, defendant and to his right. Plaintiff took a shortcut, which placed him in front of defendant and to his left. Plaintiff stopped there to get a bottle of water out of his golf bag and to check his cell phone for messages. He did so even though he knew (1) that he was in front of the tee box, (2) that defendant was preparing to tee off, and (3) that he should stand behind a player who was teeing off. Defendant inadvertently "pulled"² his tee shot to the left, hitting plaintiff in the temple. When struck, plaintiff was 25 to 35 feet from defendant, at a 40 to 45 degree angle from the intended path of the ball. Plaintiff claims his injuries were "disabling, serious, and permanent...."

The parties dispute whether defendant knew where plaintiff was standing when he teed off. Plaintiff alleged that he and defendant made eye contact before defendant hit his shot. However, his accounts of just when that eye contact occurred were inconsistent. In his deposition, plaintiff testified that "we made eye contact as I was cutting up the hill" toward the 13th tee box. (Italics added.) On the other hand, in his declaration, plaintiff stated that he made eye contact with defendant after he reached the location where he was struck. "[P]rior to anyone teeing off on the 13th hole, I made eye contact with [d]efendant Ahn as he saw me standing in front of him in close proximity to his left."

In his declaration, defendant stated: "During the practice swing I looked to see if the area directly ahead of me where I was aiming was clear. I did not see anyone. I then stepped forward and focused on the golf ball for 15 to 20 seconds while settling into my stance and then I hit the ball."³ In his deposition, defendant testified he did not know where plaintiff was, either when he took his practice swing or when he actually teed off.

In his declaration, plaintiffs expert stated that golf etiquette requires that a player ensure that no one is in a position to be struck when he or she hits the ball. (See USGA, The Rules of Golf, supra, § 1, Etiquette, p. 1.) If defendant knew plaintiff was in jeopardy, he should have shouted a warning before teeing off. (Ibid.)

When plaintiff sued for negligence, defendant sought summary judgment, relying on the primary assumption of risk doctrine. The trial court initially agreed that the doctrine applied, found no triable issue of material fact, and granted summary judgment. However, the trial court later reversed itself, concluding that triable issues remained.

The Court of Appeal affirmed, holding that the primary assumption of risk doctrine did not apply. This holding was contrary to that in Dilger v. Moyles (1997) 54 Cal.App.4th 1452, 63 Cal.Rptr.2d 591 (Dilger), in which a different district of the Court of Appeal held that being struck by a ball is a risk inherent in golf and that the primary assumption of risk doctrine applied to the case of a defendant whose errant shot struck another golfer playing a different hole. The Court of Appeal in this case distinguished Dilger on the ground that the golfer whose ball struck the plaintiff in that case was playing in a different, group. Here, plaintiff and defendant were playing together. The Court of Appeal applied general negligence principles and concluded that defendant breached a general duty of care owed to a member of his own playing group by failing to ascertain where he was before teeing off. Because it also determined that plaintiffs conduct raised issues of comparative negligence, it remanded the matter for trial on apportionment of fault.

We reject the duty analysis of the Court of Appeal and conclude that the primary assumption of risk doctrine regulates the duty a golfer owes both to playing partners and to other golfers on the course. Defendant's summary judgment motion was, however, properly denied. Material questions of fact remain bearing on whether defendant breached his limited duty of care to plaintiff by engaging in conduct that was so reckless as to be totally outside the range of the ordinary activity involved in golf. (See Knight, supra, 3 Cal.4th at p. 320, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

II. DISCUSSION

Generally, one owes a duty of ordinary care not to cause an unreasonable risk of harm to others. (Civ.Code, § 1714, subd. (a); Rowland v. Christian (1968) 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561.) The existence of a duty is not an immutable fact of nature, but rather an expression of policy considerations providing legal protection. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472, 63 Cal.Rptr.2d 291, 936 P.2d 70.) Thus, the existence and scope of a defendant's duty is a question for the court's resolution. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004, 4 Cal. Rptr.3d 103, 75 P.3d 30 (Kahn).) When a sports participant is injured, the considerations of policy and duty necessarily become intertwined with the question of whether the injured person can be said to have assumed the risk. (Avila, supra, 38 Cal.4th at p. 161, 41 Cal.Rptr.3d 299, 131 P.3d 383.)

California's abandonment of the doctrine of contributory negligence in favor of comparative negligence (Li v. Yellow Cab (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (Li)) led this court to revisit the assumption of risk doctrine in Knight, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696.

A. Knight and its progeny in this court

In Knight, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, the plurality noted that there are two types of assumption of risk: primary and secondary. (Id. at pp. 308-309, 11 Cal.Rptr.2d 2, 834 P.2d 696 (plur. opn. of George, J.).) Under the primary assumption of risk doctrine, the defendant owes no duty to protect a plaintiff from particular harms arising from ordinary, or simple negligence. (Ibid.) In a sports context, the doctrine bars liability because the plaintiff is said to have assumed the particular risks inherent in a sport by choosing to participate. (Id. at pp. 315-316, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Thus, "a court need not ask what risks a particular plaintiff subjectively knew of and chose to encounter, but instead must evaluate the fundamental nature of the sport and the defendant's role in or relationship to that sport...