Easton Allen v. Monroe Donath--Appeal from 74th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-93-237-CV

EASTON ALLEN,

Appellant

v.

MONROE DONATH,

Appellee

From the 74th District Court

McLennan County, Texas

Trial Court # 91-2096-3

O P I N I O N

Easton Allen was injured when he was hit in the head by a golf ball a "mulligan" shot by Monroe Donath. At trial, the parties disputed whether Donath announced his intention to hit a second tee shot. However, the jury failed to find that the reckless conduct of either party caused the occurrence in question. On appeal Allen contends that the trial court erred in applying the "reckless conduct" standard of care rather than the "ordinary negligence" standard of care in a non-contact sports case. Because we find Allen's complaint without merit, we will affirm the judgment.

On October 5, 1990, Easton Allen and C. D. Hatchett were playing golf at the Western Oaks Country Club in Waco. After Allen and Hatchett teed off on the first hole, Monroe Donath asked to join the twosome. The threesome completed the first hole, played the second hole, and moved to the third tee box. Donath was to shoot first from the blue pro marker. Allen and Hatchett sat in the golf cart and waited their turn near the white regulation marker, approximately fifteen to twenty feet forward of Donath. Although a row of shrubbery separated a portion of the tee box from the golf cart path, they had a clear view of Donath from the regulation marker area. Donath, a left-handed golfer, prepared to tee off with his back toward the others. After watching Donath hit his tee shot, Allen and Hatchett stopped watching Donath and moved to the rear of the cart. Allen then heard a club hit a ball, turned toward Donath, and was struck in the left temple. Allen claims that the second tee shot was hit without warning. Donath testified that he asked for and received permission to hit the second shot. Allen claimed serious injuries, including a fractured skull, a concussion, temporary loss of speech, loss of memory, loss of hearing, loss of general motor functions, and damage to his jaw.

We assume that Allen's single point of error is intended to complain that the trial court erred in overruling his objection to the charge. Before the charge was read to the jury, Allen objected to the submission of the case to the jury on the basis of a reckless disregard standard of care rather than an ordinary negligence standard of care. The trial court overruled Allen's objection and submitted a charge asking the jury whether the reckless conduct of either party caused the occurrence in question. //

According to Allen, the appropriate standard of care for sports law cases should be dependent upon whether the sport in question is a contact sport or a non-contact sport. On this issue, we find the reasoning of the Amarillo Court of Appeals persuasive:

In the recent case of Connell v. Payne, 814 S.W.2d 486 (Tex.App. Dallas 1991, writ denied), our sister court of appeals in Dallas was faced with determining the legal duty owed by one participant to another participant in a polo match. The court rejected the plaintiff's suggestion that the standard was one of ordinary negligence. Instead, the court held that "for a plaintiff to prevail in a cause of action for injuries sustained while participating in a competitive contact sport, the plaintiff must prove the defendant acted recklessly or intentionally as the Restatement of Torts defines those terms." Id. at 489 (emphasis added). While the genteel game of golf can hardly be described as a "competitive contact sport," we believe the reckless and intentional standard is every bit as appropriate to conduct on the links as it is to conduct on the polo field. In support of this proposition we cite the well-reasoned case of Thompson v. McNeill, 559 N.E.2d 705 (Ohio 1990). //

The court in Hathaway held that "for a plaintiff to prevail in a cause of action against a fellow golfer, the defendant must have acted recklessly or intentionally." // We agree.

Allen attempts to distinguish Hathaway on the basis that the injury in that case was caused by a shanked ball a foreseeable risk of golf that all golf players must accept, while the complaint in this case was that Donath took a second shot without warning an action that was not foreseeable. This complaint was properly addressed by the charge given. The court's charge to the jury provided the following definition of "reckless conduct":

"Reckless conduct" means that a person's conduct is in reckless disregard of the safety of himself or another if he does an act or intentionally fails to do an act which it is his duty to do, knowing or having reason to know of facts which would lead a reasonable person to realize, not only that his conduct creates an "unreasonable risk" of physical harm to himself or another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

(Emphasis added).

The parties do not dispute whether Donath had a duty to warn. Donath testified that, in accordance with the custom of an informal game of golf, he requested permission to hit a second ball, and they said, "Go ahead." Allen testified that, after the first tee shot, Donath did not indicate that he intended to hit a second tee shot, or mulligan. As Allen points out in his brief, however, a factual review of the evidence is not important to a legal determination of the proper standard of care. Instead, he contends only that the breach of a golfer's duty to request permission or otherwise announce his intention to hit a second tee shot should be measured by an ordinary negligence standard of care. We find that the charge to the jury adequately submitted the question of whether Donath breached that duty by its definition of reckless conduct. Because the trial court properly applied the reckless conduct standard of care to this case, we overrule Allen's sole point of error.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

(Justice Vance concurring)

Affirmed

Opinion delivered and filed April 13, 1994

Publish