Fore Head


Shin v. Ahn (California)
(Golfer Learns Lesson About Standing in Front of Another golfer Teeing Off; Court Allows Case to Proceed to Trial on Issue of Reckless Conduct)

The plaintiff was golfing in a threesome. He took a shortcut from one hole to the other, which placed him in front of the defendant and to the defendant’s left. Plaintiff stopped at that point 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. The defendant golfer inadvertently “pulled” his tee shot to the left, hitting plaintiff in the temple. The plaintiff brought a negligence action against other golfer. The parties disputed whether the defendant golfer knew where plaintiff was standing when he teed off. The plaintiff alleged that he and defendant made eye contact before defendant hit his shot, but his accounts of just when that eye contact occurred appeared to be inconsistent and in dispute.

The defendant golfer filed a motion for summary judgment based upon primary assumption of the risk, alleging that he did not owe the plaintiff a duty to protect him the the risks inherent in golfing, including the risk of being struck by a golf ball. The trial court initially granted the motion, but later reversed itself, concluding that triable issues remained. The defendant then appealed. On appeal, the affirmed the denial of the motion and remanded the case, finding that primary assumption of risk did not apply to co-participants in golf. The California Supreme Court then granted review. The Supreme Court noted that the Court of Appeal decision was contrary to decision in Dilger v. Moyles, a 1997 case in which the court held that being struck by a ball was 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 Supreme Court noted that this case represented the next generation of its jurisprudence regarding Knight v. Jewett, the seminal California case concerning primary assumption of the risk. In Knight, the Supreme Court had expressly left open the question whether the primary assumption of risk doctrine should apply to non-contact sports, such as golf. The Shin court concluded that it should. As such, the Supreme Court ruled that golfers have a limited duty of care to other players, 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.”

In Shin, the determination of whether a defendant breached the limited duty of care he owed other golfers by engaging in such “reckless” conduct depended on the resolution of disputed material facts. Therefore, the defendant’s summary judgment motion was properly denied. Ultimately, the trier of fact would have to consider both the nature of the game and the totality of circumstances surrounding the shot. Many factors would bear on whether a golfer’s conduct was reasonable, negligent, or reckless. According to the Supreme Court, the relevant circumstances may include the golfer’s skill level; whether topographical undulations, trees, or other impediments obscure his view; what steps he took to determine whether anyone was within range; and the distance and angle between a plaintiff and defendant.

Although the justices of the California Supreme Court agreed on the end result of the ruling, there was some disagreement about how the doctrine of assumption of the risk should generally be applied. This disagreement was expressed in the concurring opinion, which advocated a change in how the law is applied, alleviating a court’s need to determine as a matter of law (and at an early stage in the litigation) the risks inherent in an activity. Rather, the concurring justices would have the court focus on whether the plaintiff “truly appreciated and voluntarily consented to the risk” posed by defendant’s negligent conduct.”

NOTE: The underlying Court of Appeal decision ruling that primary assumption of the risk did not apply to golf because it was a non-contact sport is nonsensical. Primary assumption of the risk has been applied in a wide array of sports and recreation contexts, both contact and non-contact, and the ultimate decision of the Supreme Court is consistent with that approach. Some members of the Supreme Court are dissatisfied with the current state of the law because it requires the court to make a determination as a matter of law of what is or is not an “inherent risk” in an activity or sport. While there are certainly some activities which are more complicated and difficult to analyze, it seems that the Supreme Court’s concern is overstated. The bottom line is that the primary assumption of risk analysis in California is generally one of common sense, and the courts need not spend an inordinate amount of time analyzing the obvious. For example, our firm handled a kick boxing injury case in which the court was not willing to rule as a matter of law that a foot injury suffered as the result of kicking a heavy bag was an “inherent risk” of participating in a kick boxing class. The court’s hesitation to acknowledge the obvious and to make a bold statement resulted in the wrongful denial of our client’s motion for summary judgment.

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