DILGER v. MOYLES
(1997) 54 Cal.App.4th 1452
Marble & Associates and David K. Marble for Plaintiff and Appellant.
Clapp, Moroney, Bellagamba, Davis & Vucinich, Christopher J. Beeman and Mark L. Dawson for Defendant and Respondent.
ANDERSON, P. J.
Dorothy Dilger (appellant) was struck on the golf course by a ball hit
by another golfer, David Moyles (respondent), whom she sued. She
appeals the trial court's entry of summary judgment in his favor. We
hold that the trial court was correct in finding that primary assumption
of risk bars her lawsuit; accordingly, we affirm.
On the morning of April 26, 1994, appellant and two companions were
golfing at Sky West Golf Course in Hayward. After teeing off on the
fifth tee, appellant, who was 78 years old at the time, drove her golf
cart to where her ball had landed-approximately 95 yards down the
fairway. She stopped her cart on the left side of the fairway, which
borders the fairway of the sixth hole. After stopping her cart,
appellant was struck in the mouth by a ball hit by respondent from the
sixth fairway. At the time he hit the ball, respondent was standing
behind a row of trees which separated the fifth and sixth fairways.
Respondent claimed these trees blocked the line of sight to where
[54 Cal. App. 4th 1454] appellant was located. Whether or not respondent yelled "fore" upon hitting his errant shot was disputed.
 Summary judgment may properly be granted if a defendant meets his
burden of demonstrating that "one or more elements" of that cause of
action "cannot be established" or that there is a "complete defense" to
it, and plaintiff fails to meet her burden of showing a triable issue of
material fact as to that defense. (Code Civ. Proc., § 437c, subd.
(o)(2).) On appeal, we review de novo the record before the trial court.
(Chevron U.S.A., Inc. v. Superior Court (1992)
4 Cal. App. 4th 544, 548 [5 Cal. Rptr. 2d 674].)
 Appellant argues that the doctrine of assumption of risk is
inappropriate as a defense for golfers. The California Supreme Court has
found that participants generally do not have a duty to protect other
participants against risks inherent in an active sport. (Knight v.
3 Cal. 4th 296, 320 [11 Cal. Rptr. 2d 2, 834 P.2d 696].)
In Knight plaintiff's finger had to be amputated after defendant, a
coparticipant, accidentally stepped on it during a game of touch
football. (Id. at pp. 300-301.) The court held that defendant's conduct
did not breach any legal duty of care owed to plaintiff. (Id. at p.
321.) The court found applicable the doctrine of assumption of risk to
this sport because "vigorous participation in such sporting events
likely would be chilled if legal liability were to be imposed on a
participant on the basis of his or her ordinary careless conduct....
[E]ven when a participant's conduct violates a rule of the game and may
subject the violator to internal sanctions prescribed by the sport
itself, imposition of legal liability for such conduct might well alter
fundamentally the nature of the sport by deterring participants from
vigorously engaging in activity that falls close to, but on the
permissible side of, a prescribed rule." (Id. at pp. 318-319, original
italics.) The court expressly declined to decide whether this rule
should apply to less active sports such as golf: "Because the touch
football game at issue in this case clearly falls within the rationale
of this rule, we have no occasion to decide whether a comparable limited
duty of care appropriately should be applied to other less active
sports, such as archery or golf." (Id. at p. 320, fn. 7.) Nevertheless,
the court's reasoning in limiting active sports participants' liability
applies equally as well to the sport of golf.
While golf may not
be as physically demanding as other more strenuous sports such as
basketball or football, risk is nonetheless inherent in the
[54 Cal. App. 4th 1455]
sport. fn. 1 Hitting a golf ball at a high rate of speed involves the
very real possibility that the ball will take flight in an unintended
direction. If every ball behaved as the golfer wished, there would be
little "sport" in the sport of golf. That shots go awry is a risk that
all golfers, even the professionals, assume when they play.
Holding participants liable for missed hits would only encourage
lawsuits and deter players from enjoying the sport. Golf offers many
healthful advantages to both the golfer and the community. The physical
exercise in the fresh air with the smell of the pines and eucalyptus
renews the spirit and refreshes the body. The sport offers an
opportunity for recreation with friends and the chance to meet other
citizens with like interests. A foursome can be a very social event,
relieving each golfer of the stresses of business and everyday urban
life. Neighborhoods benefit by the scenic green belts golf brings to
their communities, and wild life enjoy and flourish in a friendly
habitat. Social policy dictates that the law should not discourage
participation in such an activity whose benefits to the individual
player and to the community at large are so great.
recently applied the Knight principles to the sport of sailing, an
arguably less active sport than golf. In Stimson v. Carlson (1992)
11 Cal. App. 4th 1201, 1203-1204 [14 Cal. Rptr. 2d 670],
we found the defense applicable to the captain of a sailboat who failed
to warn his passenger of an intended change in course, resulting in
serious injury when the passenger was hit on the arm by the boat's
mainsheet: "By eliminating liability for unintended accidents, the
doctrine [primary assumption of risk] ensures that the fervor of
athletic competition will not be chilled by the constant threat of
litigation from every misstep, sharp turn and sudden stop. [Citation.]
On a larger scale, participation in amateur athletics is a socially
desirable activity that improves the mental and physical well-being of
its participants. The freedom to enjoy such activity is preserved
through application of the doctrine of primary assumption of the risk."
(Id. at p. 1206.) While golf and sailing may involve less strenuous
activity than touch football, and the risk of injury thus may be less,
risk of injury is still a real possibility; therefore, golfers assume
this risk upon stepping up to the first tee, just as do sailors on
boarding or football players at kickoff.
Golf etiquette requires
that a player whose shot may endanger another warn the other by
shouting "fore." But golf etiquette does not necessarily rise to the
level of a duty. If no duty was owed, the defense of primary
[54 Cal. App. 4th 1456]
assumption of risk completely bars recovery. (Knight v. Jewett, supra, 3
Cal.4th at pp. 314-315.) Whether a duty exists depends on whether the
activity in question was an "inherent risk" of the sport. (Id. at p.
316.) The Fourth Appellate District has found that missed hits are an
inherent risk of golf. (Morgan v. Fuji Country USA, Inc. (1995)
34 Cal. App. 4th 127, 134 [40 Cal. Rptr. 2d 249].)
In Morgan plaintiff was hit on the head by an errant golf ball and sued
Fuji, the golf course on which he was playing, for negligence. (Id. at
p. 130.) The court found that this was a "secondary assumption of the
risk case where Fuji owed a duty of care to Morgan in the design and
maintenance of its golf course...." (Id. at p. 134.) However, the court
commented that, "Here, if the relationship between the parties was one
of coparticipants ... this would clearly be a primary assumption of the
risk case under Knight and the defendant would have no liability towards
Morgan because there is an inherent risk that the defendant would hit
an errant ball." (Ibid.)
When the activity involved is an
inherent risk of a sport, a participant owes no duty to coparticipants
unless he "intentionally injures another player or engages in reckless
conduct that is totally outside the range of the ordinary activity
involved in the sport." (Knight v. Jewett, supra, 3 Cal.4th at p. 318.)
We do not believe the failure to yell "fore" is that reckless or
intentional conduct contemplated by the Knight court. In Stimson v.
Carlson, supra, 11 Cal.App.4th at page 1206, the captain's failure to
yell out a course change was within the "range of ordinary activity
involved in the sport...." We found that the captain's failure to warn
did "not amount to intentional or reckless conduct...." (Ibid.) Because
the captain customarily shouted out course changes, his failure to do so
on that occasion was negligent, but remained within the range of
ordinary activity involved in sailing. (Id. at pp. 1203, 1206.) The
captain did not breach a legal duty owed to plaintiff as contemplated by
the primary assumption of risk doctrine. (Id. at p. 1206.) Similarly,
in the case at bench, respondent's failure to warn appellant of his
errant shot, while possibly negligent, did not breach a legal duty to
appellant. Whether or not the golfer yells "fore" does not alter the
inherent risk of the sport-being struck by a golf ball.
The grant of summary judgment is affirmed.
Poché, J., and Hanlon, J., concurred.
FN 1. Appellant claims that, "Golf is primarily an activity of the
elderly and less athletic." If ever this contention had merit, recent
events at the Masters and the dominant play of Tiger Woods belie it