Wood v. Postelthwaite

Citation6 Wn.App. 885,496 P.2d 988
Decision Date08 May 1972
Docket NumberNo. 677--I,677--I
PartiesSam L. WOOD and June R. Wood, his wife, Appellants, v. Richard POSTELTHWAITE and Jane Doe Postelthwaite, his wife, Respondents.
CourtCourt of Appeals of Washington

Jackson, Goldmark & Bender, Dillon E. Jackson, Roger M. Leed, Seattle, for appellants.

Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Seattle, for respondents.

CALLOW, Judge.

This action was brought by Sam L. Wood against Richard Postelthwaite to recover damages resulting from a golfing accident. The jury found for the defendant and plaintiff appeals.

On September 30, 1967, the plaintiff and defendant were members of a foursome playing at the Snohomish Golf Course. Both were experienced golfers. Wood played an average of once a month, Postelthwaite twice or three times a month and both scored in the eighties or nineties. The first eight holes were played without incident, and Wood was injured on the ninth.

Each of the foursome had hit his drive from the ninth tee. Mr. Martin, a member of the foursome, lost his first shot out of bounds on the right and so drove again hitting to the right near the edge of the fairway. Mr. Rodgers, another member of the foursome, was down the fairway slightly to the right of center. Wood's drive came to rest Each player proceeded in the general direction of his drive, and Wood and Martin attempted to find Martin's first ball. Postelthwaite had no trouble in locating his shot. He addressed his ball, taking no practice swings, and hit it. He testified that he yelled 'fore' immediately prior to striking the ball. The other three players did not hear this warning. At the time of the shot, Wood was approximately 45 degrees to the right of the intended line of flight of Postelthwaite's shot and from 70 to 85 yards away. Postelthwaite testified he had noticed that Wood was looking away from him, hunting for Martin's first shot, approximately 15 seconds before he hit the ball. Postelthwaite's ball, when struck, started toward the green and then sliced sharply to the right. He saw Wood moving toward the line of flight and again yelled 'fore.' Wood heard this warning and was struck in the eye as he turned toward the sound. 1 The jury * * *

about 180 yards from the tee, slightly to the right, between the shots of Martin and Rodgers. Postelthwaite hit toward the left of the fairway; his ball coming to rest about 110 yards from the tee returned a verdict for the defendant.

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The claimed errors all pertain to the giving or failure to give instructions. The areas of inquiry into the adequacy of the instructions are:

(a) The duty of the defendant to warn and the right of the plaintiff to rely upon a warning;

(b) The defenses of assumption of risk and volenti non fit injuria; and

(c) The doctrine of last clear chance.


A golfer has the duty to timely and adequately warn others he intends to hit the ball when:

1. Others are in the zone of danger. Houston v. Escott, 85 F.Supp. 59 (Del.1949); Kelly v. Forester, 311 S.W.2d 547 (Ky.1958); Toohey v. Webster, 97 N.J.L. 545, 117 A. 838 (1922), and

2. They are unaware the golfer intends to hit the ball and the golfer knows or should know of their unawareness. Boozer v. Arizona County Club, 102 Ariz. 544, 434 P.2d 630 (1967); Meding v. Robinson, 52 Del. 299, 157 A.2d 254 (1959); Take v. Orth, 395 S.W.2d 270 (Mo.1965); Turel v. Milberg, 10 Misc.2d 141, 169 N.Y.S.2d 955 (1957); Povanda v. Powers, 152 Misc. 75, 272 N.Y.S. 619 (1934); McWilliams v. Parham, 273 N.C. 592, 160 S.E.2d 692 (1968).

The court stated in Take v. Orth, supra, 395 S.W.2d at 274:

A person who is about to strike a golf ball must use ordinary care to warn those within range of the intended flight or the general direction of the drive, and the existence of such duty to warn must be determined by the facts of each case. (Citation omitted.)

There is no duty to warn where the other player is not in or near the intended line of flight or when the other player is aware of the imminence of the intended shot; and, therefore, the warning would be superfluous. Oakes v. Chapman It is for the jury to decide, with the guidance of the court's instructions whether there was a duty to warn under the circumstances. Jenks v. McGranaghan, 32 A.D.2d 989, 299 N.Y.S.2d 228 (1969).

158 Cal.App.2d 78, 322 P.2d 241 (1958); Walsh v. Machlin, 128 Conn. 412, 23 A.2d 156, 138 A.L.R. 538 (1941); Stober v. Embry, 243 Ky. 117, 47 S.W.2d 921 (1932); Mazzuchelli v. Nissenbaum, 355 Mass. 788, 244 N.E.2d 729 (1969); Page v. Unterreiner, 106 S.W.2d 528 (Mo.App.1937).

The court instructed the jury (No. 5) as follows:

You are instructed that in all of his conduct which might result in harm to other players, a golfer must exercise reasonable and ordinary care under the circumstances, and the other players likewise have the duty of exercising similar care for their own safety. Golf players must reasonably foresee the likelihood of injury to others from their driven golf balls and the other players must likewise reasonably foresee danger. It is the duty of a golf player in the exercise of ordinary care to give to another player timely and adequate warning of his intended drive if the other player is in a zone of danger and is not aware of such intention and if the one driving either knows or in the exercise of ordinary care under existing circumstances should know of such unawareness. The player who is driving must use ordinary care to observe whether another player is within the general direction of his drive, or is otherwise within a zone of danger if the ball should deviate from its intended course, and exercise ordinary care to see that he is adequately warned.

The player who is driving is not an insurer of the safety of another player with reference to the balls he drives nor is he guilty of negligence merely because a ball driven by him deflects from its intended course, but he must have in mind the possibility of deflection and exercise reasonable care with reference to warning another player who is in the zone of danger.

This instruction clearly sets forth the applicable law as reflected in the cases previously cited and in Berry v. Howe, 39 Wash.2d 235, 235 P.2d 170 (1951), and Berry v. Howe, 34 Wash.2d 403, 208 P.2d 1174 (1949).


Defendant submitted testimony on volenti non fit injuria, and plaintiff acknowledges that an instruction on the defense was appropriate. It is plaintiff's position that the instruction given was general rather than specific in content and therefore inadequate.

The defenses of assumption of risk and volenti non fit injuria were distinguished and clearly discussed in Walsh v. West Coast Coal Mines, Inc., 31 Wash.2d 396, 197 P.2d 233 (1948), by Justice Steinert who stated in part at 406, 197 P.2d at 238:

The defenses . . . are, strictly speaking, three separate and distinct defenses, each of which, by itself, under proper circumstances, may be a good defense where the liability of a defendant is predicated upon his negligence. These defenses, . . . are (1) assumption of risk, (2) the principle involved in the maxim Volenti non fit injuria, and (3) contributory negligence.

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The doctrine of assumption of risk, . . . is that one who as servant or employee enters into the service of another assumes by his very contract of employment the risk of all dangers ordinarily incident to the work upon which he engages. . . .

The ancient maxim Volenti non fit injuria means 'that to which a person assents is not esteemed in law an injury.' . . . (T)he principle underlying the maxim is:

'If one, knowing and comprehending the danger, voluntarily exposes himself to it, though not negligent in so doing, he is deemed to have assumed the risk and is precluded from a recovery for an injury resulting therefrom. The maxim is predicated upon the theory of knowledge and appreciation of the danger and voluntary assent thereto.'

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The distinction between the doctrine of assumption of risk and the principle involved in the maxim Volenti non fit injuria, as applied by the courts, is that the 'doctrine' applies only to cases arising out of the relationship of master and servant, or at least to cases involving a contractual * * *

relationship, whereas the 'maxim' applies, . . . independently of any contract relation.

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However, the general theory underlying both the doctrine and the maxim referred to above is the same, and this court, as well as courts generally, have used both terms as referring to the same thing in cases where knowledge by an injured party of an obvious danger is involved. . . .

See also Kingwell v. Hart, 45 Wash.2d 401, 275 P.2d 431 (1954).

Two decades later in Detrick v. Garretson Packing Co., 73 Wash.2d 804, 440 P.2d 834 (1968), it was emphasized that the evidence required to establish volenti non fit injuria is sufficient when no real consent to relieve a defendant of any duty can be found, but the plaintiff has exposed himself voluntarily to an appreciated and known unreasonable risk.

A chain of Washington cases has restricted the giving of instructions on the defense to those situations where the evidence shows the plaintiff had a superior knowledge and appreciation of the risk involved and was aware of the specific danger with which he was confronted.

Ewer v. Johnson, 44 Wash.2d 746, 270 P.2d 813 (1954), pointed out that the general theory underlying assumption of risk and volenti non fit injuria was the same and that once this academic exercise had been completed the descriptive wording was alike. It was further stated that assumption of risk or volenti non fit injuria differ from contributory negligence in that these defenses may be applicable even though the injured party is free from contributory negligence. In that case, which involved a multicar accident inside a heavy dust cloud, the...

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