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James Creel and Brenda Creel v. L & L

September 14, 2012

JAMES CREEL AND BRENDA CREEL, APPELLANTS (PLAINTIFFS),
v.
L & L, INC., A WYOMING CORPORATION, LEW LEPORE AND MIKE LEPORE, APPELLEES (DEFENDANTS).



Appeal from the District Court of Laramie County The Honorable Thomas Campbell, Judge

The opinion of the court was delivered by: Golden, Justice.

Before GOLDEN, and VOIGT, JJ., and SULLINS, BROOKS, and TYLER, DJJ.

GOLDEN, J., delivers the opinion of the Court; TYLER, D.J., files a dissenting opinion, in which SULLINS, D.J., joins.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] James Creel and Brenda Creel (collectively the Creels) attended the 2006 Wyoming Open Golf Tournament (Wyoming Open) as spectators. During the tournament, James Creel (Mr. Creel) was struck by a golf ball and suffered a head injury. The Creels thereafter filed an action for damages against several parties, including the golfer who hit the ball, a tournament official, and the operators of the golf course and tournament -- L & L, Inc. and its owners Lew Lepore and Mike Lepore (collectively L & L). The district court granted summary judgment in favor of all defendants except the golfer, concluding that getting hit by a golf ball is an inherent risk of golf and that the Wyoming Recreation Safety Act thus barred the Creels' action. The Creels appeal the summary judgment entered in favor of L & L. We reverse.

ISSUES

[¶2] The Creels present the following issues on appeal:

1. Does the "Recreation[] Safety Act," Wyoming Statute § 1-1-121 through § 1-1-123, shield a provider of a recreational opportunity from liability when the provider fails to provide a safe environment for that recreational opportunity?

2. Does the "Recreation[] Safety Act," Wyoming Statute § 1-1-121 through § 1-1-123, shield a provider of a recreational opportunity from liability when the negligence of the provider increases the dangers to spectators at that recreational opportunity?

FACTS

[¶3] In reviewing a summary judgment, we set forth the underlying facts consistent with our standard of review, which requires that we proceed as follows:

We treat the summary judgment movant's motion as though it has been presented originally to us. We use the same materials in the record that was before the district court. Using the materials in the record, we examine them from the vantage point most favorable to the nonmoving party opposing the motion, giving that party the benefit of all favorable inferences which may fairly be drawn from the materials.

Bangs v. Schroth, 2009 WY 20, ¶ 20, 201 P.3d 442, 452 (Wyo. 2009) (citations omitted).

[¶4] On July 7, 2006, the Creels attended the 2006 Wyoming Open at the Cheyenne Airport Golf Course in Cheyenne, Wyoming. They walked the course following their son, Josh Creel, who was competing in the event. Josh Creel's foursome included fellow golfer Brandon Donahue, and his caddy was Haley Hartman. The spectators following Josh Creel, besides his parents, included Hadley Berry and Sue Blythe. When Josh Creel reached the putting green of Hole #1, they and others watched him from the front-right side of the green. Hole #1 is straight, roughly 320 to 330 yards long, and the right side of its fairway is lined with scattered trees and bushes.

[¶5] While the Creels and others watched their son putt, the next group of competitors prepared to tee off from the tee box of Hole #1. That group included Brett Veesart (Mr. Veesart), a professional golfer. Those on the tee box of Hole #1, including Mr. Veesart, could see the golfers still on the putting green of Hole #1. Mr. Veesart and the others in his group testified that the spectators following the Creel foursome ahead of them were not visible from the tee box of Hole #1, while Josh Creel and another golfer in his foursome testified that the spectators were standing in a location that was visible from the tee box.

[¶6] Kathy Irvine (Ms. Irvine) was a volunteer "starter" at Hole #1. She was appointed by and performing at the direction of L & L, which operates the course and sponsored the tournament. At the time of the 2006 Wyoming Open, Ms. Irvine had worked as a starter at the tournament for approximately twenty-four years.

[¶7] Mr. Veesart was designated as the first player off the tee box, and Ms. Irvine instructed him to commence play. Mr. Veesart responded that he felt he should wait because he was concerned that he could hit the green with his initial drive. He testified:

Q. And do you remember the starter that day?

A. Yes.

Q. Do you remember a discussion that you had with her?

A. Yes.

Q. And do you remember discussing with her the fact that there were people on the green?

A. Yes.

Q. And do you remember discussing with her the fact that you felt as though you could hit that green with your drive?

A. Yes.

Q. And what was her response to you?

A. That the wind was swirling and that they were behind and we needed to get going.

Q. And how did you interpret that?

A. That she was basically saying you need -- that we need to get going.

Q. That she was instructing you to hit?

A. Mm-hum.

Q. Regardless of whether or not people were on the green?

A. Yes.

Q. Did she dispute the possibility that you could hit that green --

A. Yes.

Q. -- on your drive? Did you tell her that you could hit that green with your drive?

A. I told her that I could knock it on that green.

Q. And she said everybody thinks that?

A. I don't know if those were her exact words, but along those lines.

Q. But she, nonetheless, instructed you to hit?

A. Yes.

Q. Were you reluctant to do that?

A. I told her I cannot hit.

Q. And she said hit anyway?

A. Yes.

[¶8] Mr. Veesart proceeded as Ms. Irvine directed and teed off Hole #1. Mr. Veesart pushed his tee shot to the right of the green but did not yell "fore." The tee shot struck Mr. Creel on the side of his head, and he fell to the ground. Josh Creel then ran down the fairway alerting the Veesart foursome that his father had been hit and calling for an ambulance. Mr. Vessart went to Mr. Creel's side and said, "I'm so sorry. She made me hit." He also told the Creels that he would have been disqualified had he not hit the ball. We shall provide pertinent additional facts in our discussion below.

[¶9] In March of 2009, the Creels filed a complaint that named Mr. Veesart as the sole defendant. The complaint alleged that Mr. Veesart negligently caused the ball to be struck and negligently failed to warn the golfers and spectators within range of the incoming golf ball. Subsequently, the Creels amended the complaint to add Ms. Irvine and L & L as defendants. The amended complaint alleged negligence on the part of Ms. Irvine for directing Mr. Veesart to hit his drive and for failing to warn the golfers and spectators, and negligence by L & L for failing to adequately train Ms. Irvine. In January of 2010, the complaint was amended a second time, and the second amended complaint added Lew Lepore and Mike Lepore as individual defendants, with it being asserted that they were engaged in the management and supervision of the golf tournament.

[¶10] L & L moved for summary judgment on the ground that getting hit by a golf ball is an inherent risk of playing or being a spectator at a golf tournament and that the Wyoming Recreation Safety Act thus barred the Creels' claims. Ms. Irvine separately moved for summary judgment, asserting that, as a voluntary starter at the Wyoming Open, she did not owe the Creels any legal duty of care. Finally, Mr. Veesart moved for summary judgment on the ground that he had no duty either to protect participants and spectators from the inherent risks of golf or to warn such individuals of those inherent risks.

[¶11] In opposition to the summary judgment motion of L & L, the Creels argued: (a) there were genuine issues of material fact concerning whether the golf tournament was being negligently run by failing to properly mark safe observation areas for the tournament spectators; (b) the injuries sustained by Mr. Creel were not the result of inherent risks to the game of golf, rendering the Recreation Safety Act inapplicable; and

(c) Mr. Creel was a spectator at the tournament and not a participant as contemplated by the Recreation Safety Act. In response to Kathy Irvine's motion for summary judgment, the Creels responded: (a) Ms. Irvine owed a duty of care to the Creels both in her individual capacity, as well as in her capacity as an agent for L & L; and (b) material issues of fact were in dispute concerning the existence of the agency relationship as well as whether a legal duty existed. Finally, responding to the motion for summary judgment of Mr. Veesart, the Creels asserted that the Recreation Safety Act should not bar the pending claims against him because the Act does not immunize a participant from acting recklessly and negligently during the course of play.

[¶12] The district court granted summary judgment to all of the defendants except Mr. Veesart. In granting summary judgment the court found, in part:

The main crux of both the primary assumption of risk doctrine and the WRSA is the absence of a duty to protect from risks inherent in a sporting activity. This Court finds the WRSA to be in essence a legislative adoption of the common law principle. See Hal[p]ern v. Wheeldon, 890 P.2d 562 (Wyo. 1995) (suggesting that the WRSA embodies the principle of primary assumption of risk, which limits duty, rather than secondary assumption of risk, which is an affirmative defense to breach of duty and was abolished in Wyoming by the comparative negligence statute, W.S. § 1-1-109).

The WRSA removes a duty to protect from inherent risks of a sport, but it does not bar recovery for all risks. Walters v. Grand Teton Crest Outfitters, Inc., 804 F.Supp. 1442, 1445 (D. Wyo. 1992). Relating to the primary assumption of risk doctrine, several jurisdictions note that there is a duty to not increase the inherent risks of a sport. See e.g. Cotty v. Town of Southampton, 64 A.D.3d 251, 254 (N.Y.A.D. 2 Dept. 2009); Levinson v. Owens, 176 Cal.App.4th 1534, 1543 (Cal.App.3 Dist. 2009); Yoneda v. Tom, 133 P.3d 796, 810 (Hawaii 2006). Similarly, duty is not limited wholesale against intentional or reckless conduct. See Shinn v. Ahn, 165 P.3d 581, 589 (Cal. 2007) (discussing that Ohio, New Jersey, Massachusetts, Texas, and Hawaii have all applied reckless disregard or intentional conduct standards to golf, and adopting a similar rule in California); Yoneda, supra at 380-81. These standards appear to be in accords with the WRSA, at least to the extent that an affirmative act that increases risk, is reckless or is an intentional tort is not necessarily "intrinsic to" or "an integral part of" most sports. W.S. § 1-1-122(a)(i).

Turning to the facts of this case, it is important to note that the 2006 Wyoming Open was not a large professional tournament which drew an enormous number of spectators like one might see during a televised PGA event. The record suggests that spectators generally came to observe a golfer with whom they had a personal relationship. Mr. Creel came to observe his son, and Veesart's father was similarly following him. It does not appear that any crowd control measures were taken under these circumstances, but rather spectators were free to travel the course at their own leisure. This case is not akin to others which have involved questions of whether crowd control measures increased the risks of being hit. See Duffy, supra; Baker, supra. Instead, spectators traveled the course with their respective golfer, and the risks which they faced were essentially the same faced by the competitors.

Mr. Creel was well aware of these risks. He is a member of the Cheyenne Country Club and plays golf regularly with his wife. Sometimes he plays as a part of his job and he often plays in tournaments himself.

The Creels' central argument is that Irvine induced Veesart into hitting the ball when it was not safe to do so, and that the Lepores were negligent in not adequately training Irvine in her duties as a starter. . . .

While the Lepores and Irvine may have had an obligation to not increase the inherent risks present on the golf course, the Plaintiffs must live with the downside of this duty. By stepping on the golf course, Mr. Creel assumed the risk that a ball might fly where a golfer did not intend, and that he could be the unfortunate victim of such an occurrence. Indeed, there is ample authority that the risk of being hit by an errant shot is inherent in the game of golf. See e.g. Sanchez v. Candia Woods Golf Links, --- A.3d ---, 2010 WL 4781478, *2-3 (N.H. 2010); Anand v. Kapoor, 61 A.D.3d 787, 790-91, 877 N.Y.S.2d 425 (N.Y.A.D. 2 Dept. 2009); Shin, 165 P.3d at 587; Yoneda, 133 P.3d at 808. The Lepores and Irvine had the same degree of control over the direction of Veesart's ball as they did the weather on the day of the tournament. It goes without saying that there is never a duty to control the uncontrollable.

The Court must admit that if Irvine did have the ability to influence Vessart into hitting an unsafe shot, and that if such influence could be shown to have increased the inherent risk that spectators would be hit, then perhaps genuine issues of fact suitable for trial might exist. However, every person who is familiar with the rules of golf whose testimony is present in the record agrees that the golfer has the ultimate responsibility of determining when he or she can safely hit. Veesart is an assistant golf professional at the White Mountain Country Club in Rock Springs, Wyoming, where he has worked since 2005. He has been an apprentice PGA professional since the spring of 2006. There is no doubt that he knows the rules of the game well. While he testified he feared being penalized if he did not comply with Irvine's alleged orders, he also admitted that he knew at the time he could have sought the assistance of a rules official to settle any dispute. In the end, there is simply no evidence that suggests Irvine had any authority or ability to direct Veesart to hit a dangerous shot.

Ultimately, reasonable minds cannot differ that getting hit by an off-line or errant golf shot is an inherent risk of playing and watching golf. Mr. Creel assumed the risk of such an occurrence. Neither Irvine, the Lepores and/or L&L had a duty to eliminate, alter or control that risk. As a result, summary judgment based on the undisputed facts is appropriate.

[ΒΆ13] Shortly after the district court entered its order granting summary judgment to L & L and Ms. Irvine, the court entered an order denying Mr. Veesart's summary judgment motion. The court denied Mr. Veesart's motion on the ground that a participant in a sport or recreational opportunity owes a duty to not increase the risks inherent in the activity and questions of fact remained as to whether Mr. Veesart's conduct had increased the inherent risk to Mr. Creel. The denial of Mr. Veesart's summary judgment motion was not an appealable order and is therefore not before this Court. The summary ...


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