Zurla v. Hydel

                                           SIXTH DIVISION
                                           Filed: 06/13/97



No. 1-96-4362


GERALD ZURLA                       )  Appeal from the
                                   )  Circuit Court
     Plaintiff-Appellee,           )  of Cook County.
                                   )
     v.                            )  93 L 2502
                                   )
VICTOR HYDEL,                      )  Honorable
                                   )  Robert Quinn,
     Defendant-Appellant.          )  Judge Presiding.

     JUSTICE ZWICK delivered the opinion of the court:
     Plaintiff, Gerald Zurla, alleged in a single-count complaint
that defendant, Victor Hydel, negligently hit a golf ball which
struck him in the head as the two men played a round of golf
during a weekend trip to Florida. Defendant filed a summary
judgment motion alleging that plaintiff's allegation of simple
negligence should be insufficient under Illinois law which holds
participants in "contact sports" to a duty to refrain only from
wilful and wanton conduct. The trial court denied defendant's
summary judgment motion, but certified the question for our
review under Supreme Court Rule 308. 134 Ill. 2d R. 308. We
accepted the defendant's petition for leave to appeal and now
address as the single issue of whether a golfer, struck and
injured by a golf ball hit by another golfer, must plead and
prove wilful and wanton misconduct.   
     The record demonstrates that plaintiff and defendant went
from Chicago to Florida with Edward Vrdolyak for a weekend of
recreation that included fishing and golf. Plaintiff and Vrdolyak
were experienced golfers, but defendant was a novice. The three
had played one round of golf at the Lely Resort in Naples,
Florida, prior to the occurrence at issue.   
     During the course of their second game on March 29, 1992,
plaintiff, defendant and Vrdolyak teed off on the fourth hole.
The fourth hole is a straight par four and defendant's ball was
100 to 130 yards from the tee down the right side of the fairway.
Defendant's experience that day indicated his shots had the
natural tendency to slice, i.e., to drift from left to right. 
Both Vrdolyak's shot and plaintiff's shot landed approximately
225 yards from the tee.  
     The threesome first drove their carts from the tee to
defendant's ball. Defendant got out of his cart. Plaintiff and
Vrdolyak went on to look for their tee shots. Plaintiff and
Vrdolyak told Hydel to take a club and wait until they returned
before he hit his second shot. Vrdolyak and plaintiff then drove
their carts to the location of their tee shots. Plaintiff parked
his cart next to his ball. 
     A slow-moving foursome was on the green ahead. Defendant
observed them as they left the green. As plaintiff was watching
the foursome move on to the fifth hole, he  walked up to the
ridge of the bunker to get a clear view of the fourth green. At
this moment, defendant hit his shot thinking plaintiff and
Vrdolyak were safely positioned away from the green. Defendant's
shot, however, did not go from left to right; instead, it flew
directly at plaintiff. Plaintiff simultaneously turned his back
to the green and began walking back to his cart. Defendant's shot
then struck plaintiff on the right temple causing injury.
     We begin our analysis of the issue presented by noting that
summary judgment is a drastic remedy which is properly granted
only where the movant's right to it is clear and free from doubt.
Vicorp Restaurants v. Corinco Insulating Co., 222 Ill. App. 3d
518, 584 N.E.2d 229 (1991). The purpose of the summary judgment
procedure is to determine whether there are any genuine issues of
material facts between the parties. Vallejo v. Mercado, 220 Ill.
App. 3d 1, 580 N.E.2d 655 (1991). Summary judgment should be
granted only if the pleading, depositions, admissions and
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law. Dash Messenger Service, Inc. v. Hartford
Insurance Co., 221 Ill. App. 3d 1007, 582 N.E.2d 1257 (1991).
When the plaintiff's complaint fails to allege a legally
recognized breach of duty, the trial court may properly grant
summary judgment. See e.g., Landrum v. Gonzalez, 257 Ill. App. 3d
942, 629 N.E.2d 710 (1994). 
     The issue of the proper duty of care as between golfers is
one of first impression in Illinois. Defendant argues that
Illinois law should require that a golfer hit by a stray ball
plead and prove wilful and wanton misconduct against the
defendant. He argues that an allegation of simple negligence
should be insufficient to support a cause of action in cases
involving golf ball injuries because the public policy of
Illinois is to promote athletic endeavors such as golf. Plaintiff
responds that the proper standard of care should be the same here
as in any ordinary negligence case, i.e., to exercise reasonable
and ordinary care for the safety of other golfers. 
     An Illinois court of review first examined the standard of
care owed between participants in athletic competitions in
Nabozny v. Barnhill, 31 Ill. App. 3d 212, 334 N.E.2d 258 (1975).
In Nabozny, the plaintiff was a goalie in a soccer match. During
play plaintiff caught the ball and held it to his chest while on
one knee in the penalty area in front of the goal. As plaintiff
held the ball, the defendant kicked plaintiff in the head.
Plaintiff pleaded and went to jury trial on a simple negligence
theory. At the close of the plaintiff's case, however, the trial
court directed a verdict for the defendant, apparently finding
that the parties owed no duty toward one another because of their 
participation at the time of injury in an athletic competition.
Nabozny, 31 Ill. App. 3d at 213. Plaintiff appealed, arguing that
the entry of the directed verdict was improper because the
evidence presented at trial showed defendant had breached his
duty to refrain from negligent conduct. The appellate court noted
that a number of other jurisdictions prohibited recovery for an
injury sustained in an athletic competition for reasons of public
policy. Nabozny, 31 Ill. App. 3d at 214-15. After reviewing the
need "to control a new field of personal injury litigation"
involving "athletes *** engaged in an athletic competition," the
appellate court adopted neither the plaintiff's negligence theory
nor defendant's no-duty claim. Instead, the court stated:
          "It is our opinion that a player is liable
          for injury in a tort action if his conduct is
          such that it is either deliberate, wilful or
          with a reckless disregard for the safety of
          the other player so as to cause injury to
          that player." Nabozny, 31 Ill. App. 3d at
          215.
The appellate court reversed and remanded the case for a new
trial consistent with the "deliberate, wilful and with reckless
disregard" standard of care.
     Since Nabozny, Illinois courts have recognized a distinction
between "contact" and "non-contact" sports, with only the former
requiring the plaintiff to prove a violation of the elevated
standard of care. Thus, in Novak v. Virene, 224 Ill. App. 3d 317,
586 N.E.2d 578 (1991), this court determined that ordinary
negligence principles should be applied to a case in which the
plaintiff was injured while he and the defendant collided while
downhill skiing because skiing was not a "contact sport" for
purposes of the Nabozny rule. The court's analysis in Novak
establishes that, for purposes of considering the proper standard
of care under the Nabozny rule, an "athletic competition" may be
broadly construed to include any athletic or recreational
endeavor. The case also establishes that the type of physical
contact participants reasonably expect to encounter in such
activities is the determining factor as to whether a negligence
or higher-than-negligence standard properly applies. Because
downhill skiers do not voluntarily submit to physical contact
with other skiers when they proceed onto the slopes, skiers were
found by the Novak court to owe one another a duty of ordinary
care. Novak, 224 Ill. App. 3d at 321.
     In Landrum v. Gonzalez, 257 Ill. App. 3d 942, 629 N.E.2d 710
(1994), in a case involving a collision between a baserunner and
a fielder during a recreational softball game, the court reviewed
the evolution of the Nabozny rule and noted that the rule had
been widely applied to a variety of situations. The court
observed that whether a player violates the rules of the game
during the competition is not dispositive of the question of
whether he has violated his duty of care. This is because rule
infractions, both deliberate and unintentional, are inevitable in
"contact games." Landrum, 257 Ill. App. 3d at 946-47, citing
Oswald v. Township High School District No. 214, 84 Ill. App. 3d
723, 406 N.E.2d 157 (1980). The court also rejected the idea that
whether the participants are engaged in a formal or informal
competition is relevant to the question of the proper duty of
care. Landrum, 257 Ill. App. 3d at 947, citing Keller v. Mols,
156 Ill. App. 3d 235, 509 N.E.2d 584 (1987). Finally, the court
recognized that the basis of the Nabozny rule is whether physical
contact in a particular athletic endeavor is "inevitable" and
whether participants in such events can therefore fairly expect
contact. Landrum, 257 Ill. App. 3d at 947, citing Novak v.
Virene, 224 Ill. App. 3d 317, 586 N.E.2d 578. The court in
Landrum concluded that the proper test under the Nabozny rule
looks not to what the particular participants in the activity
subjectively knew or should have known about the dangers of the
game, but rather, at "the objective factors surrounding the game
itself." Landrum, 257 Ill. App. 3d at 947. Because participants
in an informal softball game "necessarily" come into contact with
one another and the ball during the course of play (Landrum, 257
Ill. App. 3d at 948), the court determined that a violation of
the higher Nabozny standard of care was properly required. 
     In Pfister v. Shusta, 167 Ill. 2d 417, 657 N.E.2d 1013
(1995), our supreme court adopted the analytical framework first
stated in Nabozny, finding it to offer a "practical approach that
is also supported by common sense." Pfister, 167 Ill. 2d  at 425.
In finding that an informal, indoor can-kicking game resembling
soccer resulted in "inherent" and "virtually inevitable" physical
contact among the participants (Pfister, 167 Ill. 2d at 425), the
court determined that the defendant's violation of at least a
wilful and wanton standard of care was required before liability
could be imposed (Pfister, 167 Ill. 2d at 427).     
     Defendant argues that an analysis of the danger of being
struck by an object used to play a sport or game should be
treated no differently than the danger of being hit by another
person's body during play for purposes of the contact-sport rule.
He argues that there is always a danger of being struck by an
errant shot while playing golf, as there is in many sports. He
notes, for example, that in Savino v. Robertson, 273 Ill. App. 3d
811, 652 N.E.2d 1240 (1995), this court determined that a player
who was struck by a hockey puck which had been shot by another
player was required to plead and prove an elevated standard of
care. He also relies heavily upon an out-of-state opinion to
support his position, Thompson v. McNeill, 559 N.E.2d 705 (Ohio
1990).
     In Thompson, the Ohio Supreme Court considered the case of a
golfer who had been struck in the head by an errant ball. The
golfer sought to recover damages from the defendant based upon
standard negligence principles. The Ohio Supreme Court
determined, however, that it was necessary to fashion a special
rule for sporting events because "playing fields, golf courses,
and boxing rings are places in which behavior that would give
rise to tort liability under ordinary circumstances is accepted
and indeed encouraged." Thompson, 559 N.E.2d  at 707. The court
stated:
          "Acts that would give rise to tort liability for
     negligence on a city street or in a backyard are not
     negligent in the context of a game where such an act is
     foreseeable and within the rules. For instance, a
     golfer who hits practice balls in his backyard and
     inadvertently hits a neighbor who is gardening or
     mowing the lawn next door must be held to a different
     standard than a golfer whose drive hits another golfer
     on a golf course. A principal difference is the
     golfer's duty to the one he hit. The neighbor, unlike
     the other golfer or spectator on the course, has not
     agreed to participate or watch and cannot be expected
     to foresee or accept the attendant risk of injury.
     Conversely, the spectator or participant must accept
     from a participant conduct associated with that sport.
     Thus a player who injures another player in the course
     of a sporting event by conduct that is a foreseeable,
     customary part of the sport cannot be held liable for
     negligence because no duty is owed to protect the
     victim from that conduct. Were we to find such a duty
     between co-participants in a sport, we might well
     stifle the rewards of athletic competition." Thompson,
     559 N.E.2d  at 707.
     The Ohio Supreme Court specifically rejected the "contact/no
contact" distinction which our supreme court subsequently adopted
in Pfister: 
     "The contact-non-contact distinction does not
     sufficiently take into account that we are dealing with
     a spectrum of duties and risks rather than an either-or
     distinction. Is golf a contact sport? Obviously, a
     golfer accepts the risk of coming in contact with
     wayward golf shots on the links, so golf is more
     dangerous than table tennis, for instance, but
     certainly not as dangerous as kickboxing." Thompson,
     559 N.E.2d  at 709.
Thus, in the Thompson court's view, the risk of participating or
watching a golfer on a golf course necessarily carries with it
the reasonable expectation by the person watching or
participating that injury may occur. The court therefore required
the defendant to be shown to have breached an elevated standard
of care, beyond negligence, before the plaintiff could recover
for his injury.
     We conclude the distinction between the types of games to
which the Nabozny rule is properly applied and those to which it
is not is more subtle than defendant or the Ohio Supreme Court's
opinion in Thompson suggests. Simply because there is an inherent
risk that players may accidentally touch one another is not
particularly relevant to the "contact sport" inquiry. In all of
the Illinois cases in which an elevated standard has been
applied, the participants were engaged in an activity in which
physical contact with one another, or with some physical
component of the game, is part and parcel of the sport. The
decision to apply an elevated standard, excusing ordinary
negligence, is not only supported by the fact that the parties
are aware of the inherent dangers of injury, but also because the
competitive nature of contact sports leads the participants to be
more physically aggressive and less careful than they otherwise
would be. 
     In our view, golf is simply not the type of game in which
participants are inherently, inevitably or customarily struck by
the ball. Unlike the contact sports recognized by the cases, the
only defense of the target in golf is made by the principles of
Sir Issac Newton, the natural obstacles of Mother Nature and the
cunning of those who have designed the course. There is never a
need for players to touch one another. Rather, golf is a sport
which is contemplative and careful, with emphasis placed on
control and finesse, rather than speed or raw strength. Although
the game of golf certainly presents significant dangers, these
dangers are more psychological than physical. Moreover, the
physical dangers that exist are diminished by long-standing
traditions in which courtesy between the players prevails. In
such an environment, players have the time to consider the
consequences of their actions and to guard against injury to
those who may be in harms way. As the supreme court of North
Carolina has stated:
          "A golf course is not usually considered a
          dangerous place, nor the playing of golf a
          hazardous undertaking. It is a matter of
          common knowledge that players are expected
          not to drive their balls without giving
          warning when within hitting distance of
          persons in the field of play, and that
          countless persons traverse golf courses the
          world over in reliance on that very general
          expectation." Everett v. Goodwin, 201 N.C.
          734, 161 S.E. 316, 318 (1931), quoting
          Schlenger v. Weinberg, 107 N. J. Law 130, 150 A. 434, 435, 69 A. L. R. 741.
     We specifically reject the notion found in some of the
recent opinions from other jurisdictions that physical contact
with another player's ball is simply "part of the sport" of golf.
See Thompson, 559 N.E.2d  at 707. Accord Dilger v. Moyles, 63 Cal. Rptr. 2d 591 (Cal. App. 1 Dist., May 15, 1997); Campbell v.
Picceri, 5 Mass. L. Rptr. 449 (Mass. Super., 1996); Hill v.
Bosma, 1993 Mass. App. Div. 128 (1993). Adopting such a view
undermines the reasonable incentive golfers have to guard against
injuries to one another, ultimately becoming a self-fulfilling
prophesy. Instead, we adopt the traditional "zone of danger"
analysis which has historically governed golf course injury
cases. See Alexander v. Wrenn, 158 Va. 486, 164 S.E. 715 (1932);
Everett v. Goodwin, 201 N.C. 734, 161 S.E. 316 (1931); David M.
Holliday, Annotation, Liability to One Struck by a Golf Ball, 53
A.L.R.4th 282, 289 (1987)("It is established that *** a golfer is
only required to exercise ordinary care for the safety of persons
reasonably within the range of danger of being struck by the
ball").
     In sum, we find that the game of golf is not properly
characterized as a "contact sport" for purposes of the Nabozny
rule. Accordingly, a golfer injured by a golf ball need only
allege and prove traditional negligence in order to recover
damages, rather than wilful and wanton conduct. 
     For the foregoing reasons, the judgment of the circuit court
of Cook County is affirmed and the case is remanded for further
proceedings.
     Affirmed and remanded.
     THEIS, J., and QUINN, J., concur.