Dalton v Macdonald

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[*1] Dalton v Macdonald 2017 NY Slip Op 27404 Decided on December 5, 2017 Supreme Court, Westchester County Giacomo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 5, 2017
Supreme Court, Westchester County

Loretta Dalton, Plaintiff,

against

Phillis Macdonald, Defendant.



68391/2015



Law Office of Thomas K. Moore

Eric D. Feldman, Esq.

Attorneys for defendant

PO Box 2903

Hartford, CT 06104

914-285-8500

Nobile, Magarian & DiSalvo, LLP

Edward J. Mitchell, Esq.

Attorneys for plaintiff

111 Kraft Ave.

Bronxville, NY 10708

914-337-6300
William J. Giacomo, J.

In an action to recover damages for personal injuries, the defendant moves for summary judgment dismissing the complaint, pursuant to CPLR 3212:



Papers Considered

Notice of Motion/Affirmation of Eric D. Feldman, Esq./Exhibits A-F;

Affirmation of Edward J. Mitchell, Esq. in Opposition/Affidavit of Loretta Dalton/Exhibit 1;

Reply Affirmation of Eric D. Feldman, Esq./Exhibits A-C.

Factual and Procedural Background

Plaintiff alleges that on October 28, 2012, she was struck in the head by a golf ball hit by the defendant at the Lake Isle Country Club. At the time of the accident, plaintiff, an experienced golfer, had been a member of the club for approximately eight years, played golf twice a week, and had a twenty-three handicap. Plaintiff and defendant played golf regularly together for four or five years prior to the accident.

On the day of the accident, plaintiff and defendant played in a threesome and started on the back nine. They completed twelve holes before the accident occurred. On the fourth hole, each player hit their tee shot and then their second shot. Defendant's second shot went into the rough on the right side of the fairway which was covered with leaves. After defendant hit her second shot from the right side of the fairway, plaintiff and her riding partner drove over to her ball which was on the left side of the fairway near the sand trap. However, defendant, knowing that she would not be able to find the ball because the rough was completely covered in leaves dropped another ball and hit a "mulligan" shot. Defendant's intent was to hit the ball straight towards the green located on the right, however, the ball went approximately 40 to 45 degrees to the left and struck plaintiff. At the time, plaintiff was partially in the cart and was about to exit the cart when she was struck on the right side of her head. Defendant testified at an examination before trial that she didn't yell anything prior to taking the shot because she could not see plaintiff's golf cart and she assumed her ball traveled the line that she intended. Plaintiff testified that defendant was over her right shoulder and she did not see defendant swing at the ball that hit her.

Defendant moves for summary judgment dismissing the complaint on the grounds that the doctrine of assumption of the risk is applicable. She claims that errant golf shots are part of playing and participation in the game of golf even at the professional level.

In opposition, plaintiff argues that triable issues of fact exist and the doctrine of assumption of the risk is not applicable. Plaintiff states that defendant dropped another ball and hit a mulligan shot without telling anyone. Plaintiff attests that it was impossible for defendant not to see plaintiff's cart which was only thirty to forty degrees off the intended line of ball flight and that she knew the location of plaintiff's ball. Plaintiff argues that defendant could not have reasonably expected plaintiff to wait for her to hit a second ball.



Discussion

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v NY Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v NY Univ. Med. Ctr., 64 NY2d at 853).

"Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Zuckerman v City of New York, 49 NY2d at 562). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to defeat a prima facie showing of entitlement to summary judgment (see Zuckerman v New York, 49 NY2d at 562).

Pursuant to the doctrine of primary assumption of risk, "a voluntary participant in a sporting or recreational activity 'consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation' " (Alqurashi v Party of Four, Inc., 89 AD3d 1047, 1047 [2011], quoting Morgan v State of New York, 90 NY2d 471, 484 [1997]. The doctrine does not, however, serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased (see Alqurashi v. Party of Four, Inc., 89 AD3d at 1047-1048; Custodi v Town of Amherst, 20 NY3d 83 [2012]). "[A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff" (Morgan v State of New York, 90 NY2d at 486, quoting Maddox v City of New York, 66 NY2d 270, 278 [1985]; see Toro v New York Racing Assn., Inc., 95 AD3d 999, 1000 [2d Dept 2012]).

Furthermore, "in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants' negligence are 'unique and created a dangerous condition over and above the usual dangers that are inherent in the sport' " (Morgan v State of New York, 90 NY2d at 485, quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 [1992]).

Here, defendant failed to establish her prima facie entitlement to judgment as a matter of law. While being struck in the head without warning by an errantly hit golf ball is a risk inherent in playing golf (see Rinaldo v McGovern, 78 NY2d 729, 733 [1991] [holding that "[a]lthough the object of the game of golf is to drive the ball as cleanly and directly as possible toward its ultimate goal (the hole), the possibility that the ball will fly off in another direction is a risk inherent in the game"]; Delaney v MGI Land Dev., LLC, 72 AD3d 1254 [3d Dept 2010] [holding that being struck by a mishit golf ball is an inherent risk of participating in the game of golf. The plaintiff, who was an experienced golfer and was admittedly aware of the possibility of being struck by an errant ball, assumed this risk by entering the tournament]; Anand v Kapoor, 61 AD3d 787, 791 [2d Dept 2009]), the plaintiff herein was struck when the defendant took a "mulligan" shot, without any warning to her fellow players.

In Anand v Kapoor, 15 NY3d 946, 948 (2010), while playing golf with two friends at a nine-hole course, the defendant "shanked" a shot, striking plaintiff in the left eye, with the errant ball. The accident occurred during play on the first hole. Defendant's second shot landed in the "rough." Without waiting for defendant to retrieve his ball, plaintiff went to look for his on the fairway. Defendant, in the interim, found his ball and, without calling "Fore" or giving any other warning to his friends, hit the shot that went in an unintended direction and struck plaintiff. The Court held that defendant's failure to warn of his intent to strike the ball did not amount to intentional or reckless conduct, and did not unreasonably increase the risks inherent in golf to which plaintiff consented. Rather, the manner in which plaintiff was injured—being hit without warning by a "shanked" shot while one searches for one's own ball—reflects a commonly appreciated risk of golf.

Here, however, issues of fact exist as to whether defendant's failure to warn that she was taking a "mulligan" shot amounted to intentional or reckless conduct that unreasonably increased the risk inherent in golf. Indeed, defendant had already taken her second shot when plaintiff and her riding partner drove over to their balls on the left side of the fairway near the sand trap. It was at that time that defendant dropped another ball and hit a "mulligan" shot without warning plaintiff.

Accordingly, defendant's motion for summary judgment is DENIED. The parties are directed to appear in the Settlement Conference Part, room 1600, on January 23, 2018, at 9:15 a.m. for further proceedings.



Dated: December 5, 2017

White Plains, New York

________________________________________

HON. WILLIAM J. GIACOMO, J.S.C.