Preview
FILED
AndrewW. Sorensen, No. 078266
RyanD. Libke, No. 193742
EMERSON -« SORENSEN - CHURCH
ye 2520 WEST SHAW LANE, SUITE 102
FRESNO, CALIFORNIA 93711-2765 DEC 04 2015
Telephone: (559) 432-7641
Facsimile: (559) 432-7639 FRESNO SUPERIOR COURT
www.lawemerson.com
DEPUTY
Attorneys for Defendant, ROBERT S TARANGO
SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO
UNLIMITED CIVIL DIVISION
10
11 CURTIS JEFF CARTER, Case No. 14CECG02965
12 Plaintiff, MEMORANDUM OF POINTS &
AUTHORITIES IN SUPPORT OF
13 DEFENDANT'S MOTION FOR SUMMARY
vs JUDGMENT
14
ROBERT S. TARANGO and DOES 1 to 10 DATE: February 17, 2016
15 inclusive, TIME: 3:30 p.m
DEPT: 402
16 Defendants.
TRIAL DATE: April 25, 2016
17 COMPLAINT FILED: October6, 2014
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Memorandum of Points & Authorities
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TABLE OF CONTENTS
PAGE(S)
Introduction
Statement of the Case . saaeeaaeneee wee
Summary of Allegations..
Argument saree teeeeeeeees . seaeeaneee . seaneanaeeee: we
Summary judgment is warranted where admissible evidence shows the claims
against the moving party are without merit or there is a complete defense
ll The assumption of the risk defense follows a duty ANMalySiS. 0... 2
10
MW. The primary assumption of risk doctrine applied to golf.
1
A Action against golf course
12
13 B Failure to warn by yelling “Fore.” ....c.ccssssssesesseeerssssesssseereesenessesereneeenees 5
14 c Ricocheted ball
15 D There is an inherent risk of getting hit by errant ball
16
\V. This is an errant ball case, which needs no further resolution of the facts see
17
V. No other triable issues of fact exist 13
18
Conclusion 14
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Memorandum of Points & Authorities Page!
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TABLE OF AUTHORITIES
CALIFO! lA CASES PAGE(S)
Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4'" 826, 850-851 [107 Cal.Rptr.2d 841] deeneeeeeeeeanaaaaaaaaaaseeessseessanseeeeeeeeennes
American Golf Corp. v. Superior Court (2000)
79 Cal.App.4th 30, 34-35, 38-39 [93 Cal.Rptr.2d 683] freee seeeeeesenee 6,7
Dilger v. Moyles (1997)
54 Cal.App.4"" 1452-1456 [63 Cal.Rptr.2d 591]... . 5, 6, 8, 9, 11
Freeman v. Hale (1994)
30 Cal.App.4"" 1388, 1390-1391, 1396 [36 Cal.Rptr.2d 418] 13, 14
10
Knight v. Jewett (1992
11 3 Cal.4" 296, 300-301, 310-313, 315-321 [11 Cal.Rptr.2d 2] sees 2,3,4
12 Minish v. Hanuman Fellowship (2013)
214 Cal.App.4"" 437, 457-458 [154 Cal.Rptr.3d 87].... 10
13
Moran v. Fuji Couni USA (1995)
14 34 Cal. App.4" 127, 130, 132-135 [40 Cal.Rptr.2d 249] we teeeeeeeeeeee 45
15
Nalwa v. Cedar Fair, L.P. (2012
16 55 Cal.4" 1148, 1154, 1156, 1158-1 159 [150 Cal.Rptr.3d 551] ae 4,12
17 Patane v. Kiddoo (1985,
167 Cal.App.3d 1207, 1213 [214 Cal.Rptr. 9] 10
18
Saldana v. Globe-Weis (1991
19 233 Cal.App.3d 1505, 1512-1515 [285 Cal.Rptr. 385] Henna
aaa a a aaa aaa n anna aaa a aaa ae aeee
20 Shin v. Ahn (2007;
42 Cal.4'" 484, 486-488, 494-497, 499-500 [64 Cal.Rptr.3d 803] . 7, 8, 9, 12, 13
21
22
CALIFORNIA CODES
23
24 Code Civ. Proc. § 437c, subd. (c) . see
25 Code Civ. Proc. § 437c, subd. (0)(2) tee we
26
27
28
Memorandum of Points & Authorities Page li
Introduction
Mr. Jeff Carter and Mr. Robert Tarango were playing golf together at Sunnyside
Country Club. Mr. Tarango hit his ball out of a sand trap, which was adjacent to the putting
green, and toward the hole. The ball instead hit Mr. Carter, in the head. The undisputed
evidence shows that the ball went awry when hit and that it went off its intended course.
Being hit by an errant golf ball is an inherent risk of playing golf. Defendant can only be
liable to Plaintiff if he intentionally injured him, or engaged in- conduct so reckless as to be
totally outside the range of the ordinary activity involved in golf. The material facts show no
unusual activity by Mr. Tarango. The claim of reckless conduct is without merit. There
10 were several witnesses to the event, and there are no factual disputes to resolve. The
11 primary assumption of risk doctrine applies and summary judgment is appropriate.
12 Statement of the Cas
13 Plaintiff filed his Complaint for Damages on October 6, 2014. Attached to the
14 Complaint was a single form cause of action for “General Negligence.” Defendant filed a
15 demurrer, arguing that the primary assumption of risk doctrine applied. In lieu of opposing
16 the demurrer, Plaintiff filed a First Amended Complaint on December 1, 2014, substituting
17 the word “recklessly” for “negligently,” but otherwise stating the same facts. Defendant filed
18 his answer on December 18, 2014.
19 Summary of Allegations
20 Robert Tarango was the proximate cause of damages to Plaintiff. (FAC, p. 4, GN-1.)
21 On December 13, 2013, Defendant recklessly caused the damage to Plaintiff at the Sunny
22 Side County Club, when Plaintiff and Defendant were golfing. (/bid.) Defendant hit his ball
23 into a sand trap. (/bid.) Plaintiff hit his ball onto the green. (/bid.) Plaintiff marked his ball
24 and fixed his divot. (/bid.) Another golfer, Rick Jacobson, was standing to the side of the
25 sand trap and asked Plaintiff to mark his ball and fix his divot. (/bid.) As Plaintiff stood up,
26 Defendant attempted his shot out of the sand trap, without warning. (/bid.) Defendant
27 recklessly failed to give warning. (/bid.) Defendant recklessly took the shot with Plaintiff
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and others in close proximity. (Ibid.) As a proximate result of recklessness of the
Defendant, the ball struck Plaintiff in the upper left temple, causing injury. (/bid.)
Argument
| Summary judgment is warranted where admissible evidence shows the claims
gainst the moving party are without merit or there is a complete defense.
A motion for summary judgment must be granted when the papers submitted show
there is no issue of material fact to be triéd and the moving party is entitled to judgment as
a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant “has met his or her
burden of showing that a cause of action has no merit if that party has shown that one or
10 more elements of the cause of action...cannot be established, or that there is a complete
11 defense to that cause of action.” (Code Civ. Proc. § 437c, subd. (0)(2).) The issues to be
12 determined by summary judgment are framed by the pleadings. (Saldana v. Globe-Weis
13 (1991) 233 Cal.App.3d 1505, 1512-1515 [285 Cal.Rptr. 385].) The party moving for
14 summary judgment has the burden of persuasion, which basically means the
15 establishment, through evidence, of a “requisite degree of belief." (Aguilar v. Atlantic
16 Richfield Co. (2001) 25 Cal.4"" 826, 851 [107 Cal.Rptr.2d 841].) The moving party also has
17 a burden of production to make a “prima facie showing” in the sense that the evidence
18 presented is sufficient to support the position of the moving party. (/d. at pp. 850-851.)
19 I The assumption of the risk defense follows a duty analysis.
20 In Knight v. Jewett (1992) 3 Cal.4'" 296 [11 Cal.Rptr.2d 2], the California Supreme
21 Court considered the question of the assumption of the risk doctrine in light of the court's
22 adoption of comparative fault principles. The plaintiff was injured by the conduct of a co-
23 participant in an informal game of touch football. (/d. at p. 300.) Five to ten minutes into
24 the game, defendant ran into plaintiff during a play. (/bid.) The plaintiff then told the
25 defendant “not to play so rough” or she would stop playing. (/bid.) On the very next play,
26 when, according to the defendant, he attempted to catch the ball, he collided with the
27 plaintiff and knocked her over. (/bid.) When he landed, he stepped backward onto the
28 plaintiff's right hand, injuring it. (/bid.) A finger on the plaintiffs injured hand eventually
Memorandum of Points & Authorities Page 2
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required amputation. (id. at p. 301.) Another player recalled that the defendant actually
caught the pass, and ran into the plaintiff from behind, knocking her down and then
stepping on her hand, before tagging the other player hard enough to cause her to lose her
balance and twist her ankle. (/bid.)
The plurality opinion rejected an “implied consent” approach to the assumption of the
risk doctrine. (Knight v. Jewett, supra, 3 Cal.4™ at pp. 310-312.) It also rejected any
rationale that would base liability on the subjective knowledge of the plaintiff. (/d. at pp.
312-313.) “...[T]the question of the existence and scope of a defendant's duty of care is a
legal question which depends on the nature of the sport or activity in question and on the
10 parties’ general relationship to the activity, and is an issue to be decided by the court,
11 rather than the jury.” (/d. at p. 313.)
12 Defendants generally have no legal duty to eliminate, or protect a plaintiff against,
13 risks inherent in a sport itself, but defendants generally do have a duty to use due care not
14 to increase the risks to a participant over and above those inherent in the sport. (Knightv.
15 Jewett, supra, 3 Cal.4" at pp. 315-316.) The careless conduct of others may be an
16 inherent risk of the sport, barring recovery by the plaintiff. (/d. at p. 316.) “...[T]he nature of
17 defendant's duty in the sports context depends heavily on the nature of the sport itself.
18 Additionally, the scope of the legal duty owed by a defendant frequently will also depend on
19 the defendant's role in, or relationship to, the sport.” (/d. at p. 317.)
20 “...[IJt is improper to hold a sport's participant liable to a coparticipant for ordinary
21 careless conduct committed during the sport - for example, for an injury resulting from a
22 carelessly thrown ball or bat during a baseball game — and that liability properly may be
23 imposed on a participant only when he or she intentionally injures another player or
24 engages in reckless conduct that is totally outside the range of the ordinary activity involved
25 in the sport.” (Knight v. Jewett, supra, 3 Cal.4" at p. 318.) Sporting activities assume
26 energetic conduct that often includes accidentally careless behavior, and vigorous
27 participation in sporting events would be chilled if legal liability were to be imposed on a
28 participant on the basis of his or her ordinary careless conduct. (Ibid.) “...[E]ven when a
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participant's conduct violates a rule of the game and may subject the violator to internal
sanctions prescribed by the sport itself, imposition of /egal 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.” (/d.
at pp. 381-319.)
The evidence showed that the defendant was at most careless or negligent in
knocking over the plaintiff and stepping on her hand. (/bid.) The plaintiff attempted to
characterize the defendant’s “rough play” as reckless, there was no showing that the
conduct was totally outside the range of the ordinary activity involved in the sport, and there
10 was no breach of any legal duty. (/d. at.pp. 320-321.) The action was barred by the
11 primary assumption of risk doctrine. (/d. at p. 321.)
12 in Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4" 1148 [150 Cal.Rptr.3d 551], The
13 California Supreme Court further explained: "Where the doctrine applies to a recreational
14 activity, operators, instructors and participants in the activity owe other participants only the
15 duty not to act 80 as to increase the risk of injury over that inherent in the activity.” (/d. at p.
16 1154, emphasis in original.) The Court clarified the doctrine, opining that the primary
17 assumption of the risk doctrine is not limited to activities classified as sports. (/d. at p.
18 1156.) It “applies as well to other recreational activities ‘involving an inherent risk of injury
19 to voluntary participants...where the risk cannot be eliminated without altering the
” (Ibid.) The Court reiterated its position that the
20 fundamental nature of the activity.
21 defense was amenable to summary judgment procedure, rejecting the dissent's position
22 that questions of inherent risks were too fact intensive. (/d. at p. 1158.) “That deciding
23 inherent risk may sometimes be difficult does not persuade us it is beyond the competence
24 of California courts.” (/d. at p. 1159.)
25 Ul, The prim assum lon of ris loctrine lies to golf.
26 A. Action against golf course.
27 In Moran v. Fuji County USA (1995) 34 Cal.App.4" 127 [40 Cal.Rptr.2d 249], the
28 Fourth District Court of Appeal considered an action by a golfer who was hit in the head by
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an errant golf ball. The golf course featured several mature pine trees standing between
the fourth green and the fifth tee. (/d. at p. 130.) One of the trees shaded the tee area and
a nearby concrete path, and its boughs often caught balls hit from the fourth tee. (/bid.)
When the tree was removed due to disease, plaintiff saw at least four balls hit from the
fourth tee, almost strike golfers at the fifth tee. (/bid.) The plaintiff was hit while walking
from the fifth tee box. (/bid.) He sued the golf course, who successfully moved the trial
court for summary judgment. (/bid.)
It was not disputed that being struck by an errant golf ball was an inherent risk of the
sport. (Moran v. Fuji, supra, 34 Cal.App.4" at pp. 132-133.) The Court of Appeal
10 remarked,
11 Here, if the relationship between the parties was one of coparticipants, ie., if
the defendant here were the golfer who hit the errant ball, this would clearly
12 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
13
the defendant would hit an errant ball. Morgan, however, is not suing the
14 other player; he is suing the owner and operator of the golf course.
(Moran v. Fuji, supra, 34 Cal.App.4" at p. 134.)
16
16 The duty of the owner and operator of the golf course was to provide a reasonably
17 safe golf course, which required the defendant to minimize the risks without altering the
18 nature of the sport. (Moran v. Fuji, supra, 34 Cal.App.4"" at p. 134.) The case was
19 determined to fall under the secondary assumption of risk, so the trial court erred in
20 granting summary judgment. (/d. at p. 134-135.)
21 B. Failure to warn by yelling “Fore.”
22 In Dilger v. Moyles (1997) 54 Cal.App.4th 1452 [63 Cal.Rptr.2d 591], the plaintiff was
23 struck on the golf course by a ball hit by the defendant. The plaintiff had teed off on the fifth
24 tee, and had driven her cart down the fairway to where her ball landed. (/d. at p. 1453.)
25 That fairway bordered the fairway for the sixth hole. (/bid.) The plaintiff was struck by a
26 ball hit from the sixth fairway. (/bid.) The defendant was standing behind a row of trees
27 that separated the fifth and sixth fairways when he hit the ball, and claimed that the trees
28 blocked his line of sight. (/bid.) The defendant successfully moved the trial court for
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summary judgment, even when it was disputed whether or not the defendant “yelled
‘fore’ upon hitting his errant shot[.]" (/d. at pp. 1453-1454.) The Court of Appeal for the
First District stated,
While golf may not be as physically demanding as other more strenuous
sports such as basketball or football, risk is nonetheless inherent in the
sport.[Fn.] 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
10 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
1 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
12 urban life. Neighborhoods benefit by the scenic green belts golf brings to their
13 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
14 whose benefits to the individual player and to the community at large are so
reat.
15 (Dilger v. Moyles, supra, 54 Cal.App.4th at pp. 1454-1455.)
16 While golf's stated etiquette requires a player whose shot may endanger another to
17 warn the other by shouting “fore,” this did not rise to the level of a legal duty to do so.
18 (Dilger v. Moyles, supra, 54 Cal.App.4th at pp. 1455-1456.) The failure to yell “fore” was
19 not seen as the kind of reckless or intentional conduct contemplated in the Knight opinion.
20 (Dilger v. Moyles, supra, 54 Cal.App.4th at p. 1456.)
21 Cc. Ricoc! ball
22 In another opinion concerning golf, the plaintiff was hit by a golf ball that had
23 ricocheted off a yardage marker after the ball had been hit by co-player. (American Golf
24 Corp. v. Superior Court (2000) 79 Cal.App.4th 30 [93 Cal.Rptr.2d 683].) The plaintiff sued
25 the golf course, who moved for summary judgment. (/d. at p. 34.) The plaintiff argued that
26 the golf course increased the risk of injury by its use of wooden yardage markers, and by
27 their location near the fairway. (/d. at p. 35.) The trial court denied the motion, and the
28 golf course petitioned for writ of mandate. (/bid.) The Court of Appeal considered the yard
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markers to be commonplace and integral to the sport, and found that the system used by
the defendant was standard in the industry. (/d. at p. 38.) “Because errant shots are an
inherent risk of golf and errant shots by definition take flight in unintended directions, golf
involves the very real possibility that a player will hook or slice a ball, the ball will strike a
hard obstacle, and the ball will ricochet forcibly.” (/bid.) There were no reports of prior
injuries in the area and no great danger apparent. (/d. at p. 39.)
Plaintiff's expert's opinion regarding the location of the markers or the materials used
did not create a triable issue of fact. (American Golf Corp. v. Superior Court, supra, 79
Cal.App.4th at 39.) “It will always be possible for a plaintiff who suffers a sports injury to
10 obtain expert testimony that the injury would not have occurred if the recreation provider
14 had done something differently. Such expert testimony is not sufficient to establish that the
12 recreation provider increased the inherent risks of the sport. Such expert opinion does not
13 create a triable issue of fact on a motion for summary judgment based on the primary
14 assumption of the risk defense.” (/bid.) The court issued a peremptory writ ordering that
15 the motion for summary judgment be granted. (/bid.)
16 D. The Is an Inherent risk of getting hit by an er ant ball when playin
17 golf.
18 In Shin v. Ahn (2007) 42 Cal.4" 484 [64 Cal.Rptr.3d 803], the California Supreme
19 Court held that, “...the primary assumption of risk doctrine does apply to golf and that being
20 struck by a carelessly hit ball is an inherent risk of the sport.” (/d. at p. 486.) The plaintiff,
21 defendant, and another player were playing together, and the defendant had gone ahead to
22 the next tee while the other two finished putting. (/d. at pp. 486-487.) The plaintiff took a
23 shortcut, which placed him in front of defendant and to his left. (/d..at p. 487.) Plaintiff
24 knew that he was in front of the tee box, that defendant was about to tee off, and that he
25 should stand behind a player who was teeing off. (/bid.) The defendant then inadvertently
26 “pulled” his tee shot to the left, hitting plaintiff in the temple. (/bid.)
27 The plaintiff alleged that he and defendant made eye contact before defendant hit
28 his shot. (Shin v. Ahn, supra, 42 Cal.4th at p. 487.) The plaintiff then gave inconsistent
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accounts of whether defendant made eye contact with plaintiff before defendant made his
shot. (Ibid.) In a declaration made in support of his motion for summary judgment, the
defendant stated that he looked directly ahead where he was aiming and saw no one.
(Ibid.) In his deposition, though, he stated that he did not know where Plaintiff was. (/bid.)
The trial court vacillated, but eventually denied the motion for summary judgment. (/bid.)
The reviewing court below distinguished Dilger v. Moyles, supra, on the basis that
the golfer whose ball hit the plaintiff was playing in a different group, and applied general
negligence principles. (Shin v. Ahn, supra, 42 Cal.4" at p. 488.) The California Supreme
Court was not persuaded that a case should turn on whether the defendant is playing with
10 plaintiff, or in another group: “Coparticipants have the same relationship to the sport
1 whether they are in the same playing group or not.” (/d. at p. 494.) Although not competing
12 with the other, the plaintiff and defendant "...were coparticipants...because they were both
13 engaged in the same sport, at the same time, using a common venue.” (/bid.) The
14 California Supreme Court also disapproved of the Court of Appeal’s heavy reliance on
15 golf's safety etiquette: “The sanction for a violation of a rule of etiquette is social
16 disapproval, not legal liability. This is true, generally, of the violation.of the rules of a game.”
17 (Shin v. Ahn, supra, 42 Cal.4th at p. 497.)
18 The court looked at sister-state decisions concerning golf, many of which applied a
19 reckless disregard or intentional conduct standards. (Shin v. Ahn, supra, 42 Cal.4th at pp.
20 494-496.) The first case denied recovery against a defendant who “shanked” a shot,
21 meaning the ball was struck with the part of the club head where the heel is joined to the
22 staff, which causes the ball to squirt off dramatically on an outward path. (/d. at p. 494.) An
23 Ohio court observed long ago that, “...not every shot played by a golfer goes to the point
24 where intends it to. go.” (Id. at p. 495.) Another case found sufficient evidence of
25 recklessness, though, when the defendant perceived the plaintiff to be “in the line of fire,”
26 waived him off, but then took the shot when the plaintiff did not move. (/d. at p. 495.) In
27 comparison, when a plaintiff was not in the intended path of the defendant's shot, and the
28 Mt
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defendant did not see plaintiff before taking the shot, another court found no willful, wanton,
or reckless conduct. (/d. at p. 496.)
The record was too sparse to support a conclusion that there had been no
recklessness. (Shin v. Ahn, supra, 42 Cal.4th at pp. 499-500.) Golf requires focus on the
ball, unlike other sports where attention is divided between the ball and the players, but
golfers may not ignore other players. (/d. at p. 499.) In deciding whether conduct was
reasonable, negligent, or reckless, “....[rlelevant circumstances may include the golfer's
skill level; whether topographical undulations, trees, or other impediments obscure his view;
what steps he took to determine whether anyone was within range; and the distance and
10 angle between a plaintiff and defendant.” (/d. at p. 500.) The plaintiff testified that he and
11 defendant had made eye contact when plaintiff was cutting up the hill. (/bid.) Plaintiff did
12 not make clear how far he had proceeded up the hill, how far away he was from the
13 defendant, or whether he was stationary when the eye contact occurred. (/bid.) Defendant
14 said he looked to see if the area directly ahead of him was clear, but it is not apparent just
15 how broad or limited that area was. (/bid.) “We do not suggest that cases like this can
16 never be resolved on summary judgment, only that this record is insufficient to do so.”
17 (Ibid.)
18 Vv. This is an erra Il case, which needs no further resolutlo he facts.
19 The plain message delivered by Dilger was that the courts should not encourage golf
20 lawsuits, and should not discourage participation in golf. Shin did not change this
21 message. Shin dictates that the primary assumption of risk doctrine applies to this case.
22 The allegations in the First Amended Complaint and material facts show that the accident
23 occurred when Plaintiff and Defendant were playing golf together. Per Shin, the doctrine
24 applies to golf, and applies when the plaintiff and defendant are playing in the same group.
25 Applying the doctrine, Defendant had no duty to eliminate a risk inherent in playing golf
26 together. Defendant also had no duty to protect Plaintiff against a risk inherent in playing
27 golf together. Defendant had a limited duty to use due care not to increase the risks of
28 playing golf together over and above those inherent in playing golf together. It follows that
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if the facts show that the risk to Plaintiff was inherent to playing golf together, there was no
duty owed, and no duty was breached.
Defendant is not responsible for an injury resulting from conduct that was accidental,
careless, or negligent. When Plaintiff filed his original Complaint, the allegations described
only a careless shot by Defendant. The First Cause of Action was replete with “negligence”
language. The specific facts alleged did not contradict the various charges of negligence.
There was then no charge or claim of reckless conduct, and no assertion that the
Defendant's conduct was totally outside the range of ordinary activity involved in a game of
golf. The First Amended Complaint alleges the same facts. The only difference was that
10 the words of negligence were changed to words of recklessness. Instead of alleging a
11 negligent failure to warn, there was now a reckless failure to warn.
12 The court may consider the original allegation of negligence as a judicial admission,
13 especially when there has been no indication that the allegation was the result of mistake,
14 inadvertence, or inadequate knowledge of the facts. (See, Patane v. Kiddoo (1985) 167
15 Cal.App.3d 1207, 1213 [214 Cal.Rptr. 9](‘Admissions in the original complaint, though
16 superseded by the amended complaint, are properly within our cognizance.") Rather, the
17 allegation was changed only in response to a demurrer based upon an argument that
18 negligent conduct would not be actionable. Even if the Plaintiff is able to show mistake,
19 inadvertence, or inadequate knowledge, then the allegation of negligence is an evidentiary
20 admission. (See, Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 457 [154
21 Cal.Rptr.3d 87].) Generally, a plaintiff must be allowed to explain the change, and may
22 controvert the admission, so the change itself is not generally sufficient to support a motion
23 for summary judgment. (See, id. at pp. 457-458.) Here, however, there is ample other
24 evidence upon which the court may grant summary judgment, as discussed below. The
25 admission of negligence should help shift the burden to Plaintiff, and Plaintiff cannot defeat
26 summary judgment by contradicting his own testimony.
27 The First Amended Complaint does not allege that the act of hitting the ball out the
28 sand trap was itself reckless, and Plaintiff cannot reasonably assert that the act of hitting a
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ball out of a trap is something outside the ordinary. The evidence does indeed show that
Defendant was hitting his ball out of sand trap. This was an expected part of the game.
Golf courses are designed to have such areas, to increase the difficulty of hitting the ball
onto the green or into the hole. There are clubs specially designed to hit balls out of traps.
Traps and obstacles cannot be eliminated without fundamentally changing the game, and
players will need to hit out of them. The act of hitting a ball out of a trap cannot be the
basis of liability without chilling participation.
The First Amended Complaint alleges that Defendant hit the ball out of the sand trap
in a reckless manner, because it was done without warning, and because the ball was hit in
10 the direction of both the hole and “in close proximity” of the Plaintiff. The failure to warn is
11 an omission. In the context of sport, it is not reckless. Even though a warning is required
12 by the stated etiquette of golf, the failure to give one cannot be considered “totally outside
13 the range of ordinary activity.” Dilger held that the failure to yell “fore,” the established
14 warning shout, was not actionable, even when the defendant was driving the ball down the
15 fairway. Here, Defendant here was not driving the ball down the fairway, but was hitting the
16 ball a short distance from a sand trap towards the hole. The trap was adjacent to the
17 green. There was less risk of harm than there was in Dilger, and less potential magnitude
18 of harm. Failing to give a warning here was not reckless conduct, relative to the primary
19 assumption of risk.
20 The next act of described in both the original and First Amended Complaints is
21 hitting the ball with Plaintiff being in close proximity. The term “close” is relative in a game
22 in which distance is a key factor. Players take turns making their long shots from the tee
23 down the fairway, and then walk (or ride) together from the tee box, and eventually get the
24 golf balls and themselves at or near the green. If the players are at the green, they are
25 going to be close to one another, relative to the tee. Shots are taken when the players are
26 at or near the green. There are frequently sand traps or other hazards located near the
27 green. In this case, there were three traps close to the green. Taking a shot out of a sand
28 trap is part of golf, and taking a shot out of a sand trap will be done in close proximity of
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others. To take a shot at or near the green when a fellow player is in close proximity is not
“totally outside the range of ordinary activity” in golf. It is inherent and necessary to the
game. If players cannot take shots at, or close to, the green because other players are in
close proximity, without risking tort liability, then the game cannot be played as it is.
Participation will be chilled.
The allegations admit, and the material facts show, that Defendant was hitting in the
direction of the hole. Plaintiff was not located between Defendant and . In contrast to Shin,
in this case there are two witnesses to the circumstances surrounding the hit out of the
sand trap, besides Plaintiff and Defendant. Everyone, including Plaintiff, testified that the
10 ball went off on a bad angle. Photographs of the trap and green were referenced while
11 taking the depositions of each of the foursome. Plaintiff marked the location of the divot
12 which he had just fixed when he was hit, the location of the hole, and Defendant's location
13 in the trap when he hit the ball. (A MSJ Exh. |.) There is ample description of what
14 happened. No additional facts need adjudication. We know what happened, and why.
15 There is no conduct described by any of the witness that could be considered outside
16 ordinary golf activity.
17 Plaintiff may argue that the holding of Shin prevents the court from granting
18 summary judgment, because the determination of whether conduct was reckless is too fact
19 intensive, especially in the context of the game of golf. This would be misconstruing the
20 holding of that case, and ignoring the clear directive of the California Supreme Court in the
21 Nalwa case. Nalwa directs trial courts to grant summary judgment when the primary
22 assumption of risk applies. The moving defendant in Shin failed to supply sufficient facts to
23 support his argument, which is to say he failed to meet his initial burden of production. At
24 that, the defendant's deposition was inconsistent with his declaration. (Shin v. Ahn, supra,
25 42 Cal.4"" at p. 488.) A court can’t grant summary judgment in that circumstance, no matter
26 how sound the legal argument might be. The defendant in Shin succeeded in showing that
27 the doctrine applied to golf, but failed to show that no triable issues of fact remained. Shin
28 does not carve out an exception for primary assumption of risk in general, or golf in
Memorandum of Points & Authorities Page 12
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particular, in ruling on motions for summary judgment. Instead, it affirms that the same
rules for motions for summary judgment in general apply to primary assumption of risk
cases. Another key distinction from Shin is that Plaintiff here originally described the
conduct as negligent. Plaintiff should have the burden to show that it was not negligent,
which is a burden the plaintiff in Shin did not have.
If Mr. Tarango was only negligent in hitting the ball out of the trap, as originally pled,
he should not be the subject of a trial. Forethought must be given as to what effect
imposing liability on Mr. Tarango in this situation would have on the enjoyment of golf
locally, and throughout the state. The manifest problem with Plaintiffs current action is its
10 potential for having a chilling effect. People will not be able to enjoy the game if they are
11 concerned that a shot that goes off target could land them in court. Extraordinary
12 precautions would become necessary, making the game cumbersome and less enjoyable.
13 The putting green should not be a litigation zone. Hitting out a trap, which is meant to be
14 more difficult by design, should not the basis for imposing liability. If Mr. Tarango could be
15 liable in this situation, people are not going to play golf together in a foursome, or with
16 anyone near the green.
17 Vv. No othert le Issues of fi xist.
18 During the course of his deposition, Plaintiff ventured that Defendant was intoxicated
19 at the time he hit the ball out of the trap. There is no allegation in the First Amended
20 Complaint to this effect. No leave to amend should be given. Upon examination, Plaintiff
21 admitted that he had no idea how many alcoholic beverages Mr. Tarango drank. Plaintiff
22 admitted seeing no signs of intoxication. Both Mr. Freund and Mr. Jacobsen testified that
23 Mr. Tarango was not intoxicated. To be fair, everyone enjoyed a beer during the game.
24 Plaintiff stated the enjoyed a beer. Mr. Tarango said he did. Mr. Freund stated no one was
25 intoxicated.
26 Defense counsel could not find any opinions discussing the effect of drinking of
27 alcoholic beverages might have on the application of the primary assumption of risk to the
28 game of golf, Only one case, Freeman v. Hale (1994) 30 Cal.App.4” 1388 [36 Cal.Rptr.2d
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418], has considered evidence of drinking alcoholic beverages in the context of the primary
assumption of risk, but it concerned the sport of downhill snow skiing. The court held that
the consumption of such beverages was not within the range of activities involved in that
sport, and that, to the extent that drinking could increase the risk of a collision, the risk was
not inherent in the sport. (/d. at p. 1390.) The collision in that case resulted in the plaintiffs
neck being broken and quadriplegia. (Id. at p. 1391.) The defendant had consumed
alcoholic beverages on his overnight trip, had slept only two hours, and had drunk a mix of
bourbon and Coke after lunch. (/bid.) He was loud and boisterous, and exhibited signs of
intoxication. (/bid.) The defendant did not establish that his drinking did not increase the
10 risk, or that the drinking was not a proximate cause of the accident. (/d. at p. 1396.)
11 Golf is a different type activity than is downhill skiing. As a leisurely. social sport, golf
12 does not forbid drinking alcoholic beverages during the game, and it is not uncommon for
13 players to enjoy a drink before, during, or after a game. Many country clubs have bars on
14 the premises, and Mr. Carter stated the beer consumed during their game was purchased
15 on-site. To be sure, if the court were to rule that the drinking of a beer, without signs of
16 intoxication, was a possible basis of liability, it would have a chilling effect on the past-time,
17 and the ruling would have economic consequences. It would fundamentally change how
18 golf is enjoyed in the State. Defendant acknowledges that the fact that a person playing
19 golf while intoxicated would increase the risk of harm, and does not suggest that the
20 defense should apply even if a person is playing while drunk. Defendant only asserts that,
21 without evidence of intoxication, having a beer is not outside the range of ordinary activity.
22 Plaintiff, having enjoyed a beer, too, cannot equitably charge that is not. The drinking of
23 beer also had no causal connection with the incident.
24 Conclusion
25 There is nothing unusual about the facts of this case. Mr. Tarango was not doing
26 something completely out of the ordinary when he took a shot out of the trap. He did not
27 mean to hit Mr. Carter, and he thought he had a clear shot onto the green. Considering all
28 the facts, the case does not cry out for a judgment against the Defendant. The policy of the
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1 primary assumption of the risk doctrine is to prevent lawsuits bein
Preview
FILED AndrewW. Sorensen, No. 078266 RyanD. Libke, No. 193742 EMERSON -« SORENSEN - CHURCH ye 2520 WEST SHAW LANE, SUITE 102 FRESNO, CALIFORNIA 93711-2765 DEC 04 2015 Telephone: (559) 432-7641 Facsimile: (559) 432-7639 FRESNO SUPERIOR COURT www.lawemerson.com DEPUTY Attorneys for Defendant, ROBERT S TARANGO SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO UNLIMITED CIVIL DIVISION 10 11 CURTIS JEFF CARTER, Case No. 14CECG02965 12 Plaintiff, MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF 13 DEFENDANT'S MOTION FOR SUMMARY vs JUDGMENT 14 ROBERT S. TARANGO and DOES 1 to 10 DATE: February 17, 2016 15 inclusive, TIME: 3:30 p.m DEPT: 402 16 Defendants. TRIAL DATE: April 25, 2016 17 COMPLAINT FILED: October6, 2014 18 Ml 19 Ml 20 Ml 21 M 22 Ml 23 i aicaneees Manonaun of PointeHe and Authorities 24 Ml iil snHnMu - erates0d: 25 Mt 26 MW 27 Ml 28 MW Memorandum of Points & Authorities ® TABLE OF CONTENTS PAGE(S) Introduction Statement of the Case . saaeeaaeneee wee Summary of Allegations.. Argument saree teeeeeeeees . seaeeaneee . seaneanaeeee: we Summary judgment is warranted where admissible evidence shows the claims against the moving party are without merit or there is a complete defense ll The assumption of the risk defense follows a duty ANMalySiS. 0... 2 10 MW. The primary assumption of risk doctrine applied to golf. 1 A Action against golf course 12 13 B Failure to warn by yelling “Fore.” ....c.ccssssssesesseeerssssesssseereesenessesereneeenees 5 14 c Ricocheted ball 15 D There is an inherent risk of getting hit by errant ball 16 \V. This is an errant ball case, which needs no further resolution of the facts see 17 V. No other triable issues of fact exist 13 18 Conclusion 14 20 21 22 23 24 25 26 27 28 Memorandum of Points & Authorities Page! ~ TABLE OF AUTHORITIES CALIFO! lA CASES PAGE(S) Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4'" 826, 850-851 [107 Cal.Rptr.2d 841] deeneeeeeeeeanaaaaaaaaaaseeessseessanseeeeeeeeennes American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 34-35, 38-39 [93 Cal.Rptr.2d 683] freee seeeeeesenee 6,7 Dilger v. Moyles (1997) 54 Cal.App.4"" 1452-1456 [63 Cal.Rptr.2d 591]... . 5, 6, 8, 9, 11 Freeman v. Hale (1994) 30 Cal.App.4"" 1388, 1390-1391, 1396 [36 Cal.Rptr.2d 418] 13, 14 10 Knight v. Jewett (1992 11 3 Cal.4" 296, 300-301, 310-313, 315-321 [11 Cal.Rptr.2d 2] sees 2,3,4 12 Minish v. Hanuman Fellowship (2013) 214 Cal.App.4"" 437, 457-458 [154 Cal.Rptr.3d 87].... 10 13 Moran v. Fuji Couni USA (1995) 14 34 Cal. App.4" 127, 130, 132-135 [40 Cal.Rptr.2d 249] we teeeeeeeeeeee 45 15 Nalwa v. Cedar Fair, L.P. (2012 16 55 Cal.4" 1148, 1154, 1156, 1158-1 159 [150 Cal.Rptr.3d 551] ae 4,12 17 Patane v. Kiddoo (1985, 167 Cal.App.3d 1207, 1213 [214 Cal.Rptr. 9] 10 18 Saldana v. Globe-Weis (1991 19 233 Cal.App.3d 1505, 1512-1515 [285 Cal.Rptr. 385] Henna aaa a a aaa aaa n anna aaa a aaa ae aeee 20 Shin v. Ahn (2007; 42 Cal.4'" 484, 486-488, 494-497, 499-500 [64 Cal.Rptr.3d 803] . 7, 8, 9, 12, 13 21 22 CALIFORNIA CODES 23 24 Code Civ. Proc. § 437c, subd. (c) . see 25 Code Civ. Proc. § 437c, subd. (0)(2) tee we 26 27 28 Memorandum of Points & Authorities Page li Introduction Mr. Jeff Carter and Mr. Robert Tarango were playing golf together at Sunnyside Country Club. Mr. Tarango hit his ball out of a sand trap, which was adjacent to the putting green, and toward the hole. The ball instead hit Mr. Carter, in the head. The undisputed evidence shows that the ball went awry when hit and that it went off its intended course. Being hit by an errant golf ball is an inherent risk of playing golf. Defendant can only be liable to Plaintiff if he intentionally injured him, or engaged in- conduct so reckless as to be totally outside the range of the ordinary activity involved in golf. The material facts show no unusual activity by Mr. Tarango. The claim of reckless conduct is without merit. There 10 were several witnesses to the event, and there are no factual disputes to resolve. The 11 primary assumption of risk doctrine applies and summary judgment is appropriate. 12 Statement of the Cas 13 Plaintiff filed his Complaint for Damages on October 6, 2014. Attached to the 14 Complaint was a single form cause of action for “General Negligence.” Defendant filed a 15 demurrer, arguing that the primary assumption of risk doctrine applied. In lieu of opposing 16 the demurrer, Plaintiff filed a First Amended Complaint on December 1, 2014, substituting 17 the word “recklessly” for “negligently,” but otherwise stating the same facts. Defendant filed 18 his answer on December 18, 2014. 19 Summary of Allegations 20 Robert Tarango was the proximate cause of damages to Plaintiff. (FAC, p. 4, GN-1.) 21 On December 13, 2013, Defendant recklessly caused the damage to Plaintiff at the Sunny 22 Side County Club, when Plaintiff and Defendant were golfing. (/bid.) Defendant hit his ball 23 into a sand trap. (/bid.) Plaintiff hit his ball onto the green. (/bid.) Plaintiff marked his ball 24 and fixed his divot. (/bid.) Another golfer, Rick Jacobson, was standing to the side of the 25 sand trap and asked Plaintiff to mark his ball and fix his divot. (/bid.) As Plaintiff stood up, 26 Defendant attempted his shot out of the sand trap, without warning. (/bid.) Defendant 27 recklessly failed to give warning. (/bid.) Defendant recklessly took the shot with Plaintiff 28 Ml Memorandum of Points & Authorities Page 1 @ @ and others in close proximity. (Ibid.) As a proximate result of recklessness of the Defendant, the ball struck Plaintiff in the upper left temple, causing injury. (/bid.) Argument | Summary judgment is warranted where admissible evidence shows the claims gainst the moving party are without merit or there is a complete defense. A motion for summary judgment must be granted when the papers submitted show there is no issue of material fact to be triéd and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant “has met his or her burden of showing that a cause of action has no merit if that party has shown that one or 10 more elements of the cause of action...cannot be established, or that there is a complete 11 defense to that cause of action.” (Code Civ. Proc. § 437c, subd. (0)(2).) The issues to be 12 determined by summary judgment are framed by the pleadings. (Saldana v. Globe-Weis 13 (1991) 233 Cal.App.3d 1505, 1512-1515 [285 Cal.Rptr. 385].) The party moving for 14 summary judgment has the burden of persuasion, which basically means the 15 establishment, through evidence, of a “requisite degree of belief." (Aguilar v. Atlantic 16 Richfield Co. (2001) 25 Cal.4"" 826, 851 [107 Cal.Rptr.2d 841].) The moving party also has 17 a burden of production to make a “prima facie showing” in the sense that the evidence 18 presented is sufficient to support the position of the moving party. (/d. at pp. 850-851.) 19 I The assumption of the risk defense follows a duty analysis. 20 In Knight v. Jewett (1992) 3 Cal.4'" 296 [11 Cal.Rptr.2d 2], the California Supreme 21 Court considered the question of the assumption of the risk doctrine in light of the court's 22 adoption of comparative fault principles. The plaintiff was injured by the conduct of a co- 23 participant in an informal game of touch football. (/d. at p. 300.) Five to ten minutes into 24 the game, defendant ran into plaintiff during a play. (/bid.) The plaintiff then told the 25 defendant “not to play so rough” or she would stop playing. (/bid.) On the very next play, 26 when, according to the defendant, he attempted to catch the ball, he collided with the 27 plaintiff and knocked her over. (/bid.) When he landed, he stepped backward onto the 28 plaintiff's right hand, injuring it. (/bid.) A finger on the plaintiffs injured hand eventually Memorandum of Points & Authorities Page 2 NS NY required amputation. (id. at p. 301.) Another player recalled that the defendant actually caught the pass, and ran into the plaintiff from behind, knocking her down and then stepping on her hand, before tagging the other player hard enough to cause her to lose her balance and twist her ankle. (/bid.) The plurality opinion rejected an “implied consent” approach to the assumption of the risk doctrine. (Knight v. Jewett, supra, 3 Cal.4™ at pp. 310-312.) It also rejected any rationale that would base liability on the subjective knowledge of the plaintiff. (/d. at pp. 312-313.) “...[T]the question of the existence and scope of a defendant's duty of care is a legal question which depends on the nature of the sport or activity in question and on the 10 parties’ general relationship to the activity, and is an issue to be decided by the court, 11 rather than the jury.” (/d. at p. 313.) 12 Defendants generally have no legal duty to eliminate, or protect a plaintiff against, 13 risks inherent in a sport itself, but defendants generally do have a duty to use due care not 14 to increase the risks to a participant over and above those inherent in the sport. (Knightv. 15 Jewett, supra, 3 Cal.4" at pp. 315-316.) The careless conduct of others may be an 16 inherent risk of the sport, barring recovery by the plaintiff. (/d. at p. 316.) “...[T]he nature of 17 defendant's duty in the sports context depends heavily on the nature of the sport itself. 18 Additionally, the scope of the legal duty owed by a defendant frequently will also depend on 19 the defendant's role in, or relationship to, the sport.” (/d. at p. 317.) 20 “...[IJt is improper to hold a sport's participant liable to a coparticipant for ordinary 21 careless conduct committed during the sport - for example, for an injury resulting from a 22 carelessly thrown ball or bat during a baseball game — and that liability properly may be 23 imposed on a participant only when he or she intentionally injures another player or 24 engages in reckless conduct that is totally outside the range of the ordinary activity involved 25 in the sport.” (Knight v. Jewett, supra, 3 Cal.4" at p. 318.) Sporting activities assume 26 energetic conduct that often includes accidentally careless behavior, and vigorous 27 participation in sporting events would be chilled if legal liability were to be imposed on a 28 participant on the basis of his or her ordinary careless conduct. (Ibid.) “...[E]ven when a Memorandum of Points & Authorities Page3 @ @ participant's conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of /egal 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.” (/d. at pp. 381-319.) The evidence showed that the defendant was at most careless or negligent in knocking over the plaintiff and stepping on her hand. (/bid.) The plaintiff attempted to characterize the defendant’s “rough play” as reckless, there was no showing that the conduct was totally outside the range of the ordinary activity involved in the sport, and there 10 was no breach of any legal duty. (/d. at.pp. 320-321.) The action was barred by the 11 primary assumption of risk doctrine. (/d. at p. 321.) 12 in Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4" 1148 [150 Cal.Rptr.3d 551], The 13 California Supreme Court further explained: "Where the doctrine applies to a recreational 14 activity, operators, instructors and participants in the activity owe other participants only the 15 duty not to act 80 as to increase the risk of injury over that inherent in the activity.” (/d. at p. 16 1154, emphasis in original.) The Court clarified the doctrine, opining that the primary 17 assumption of the risk doctrine is not limited to activities classified as sports. (/d. at p. 18 1156.) It “applies as well to other recreational activities ‘involving an inherent risk of injury 19 to voluntary participants...where the risk cannot be eliminated without altering the ” (Ibid.) The Court reiterated its position that the 20 fundamental nature of the activity. 21 defense was amenable to summary judgment procedure, rejecting the dissent's position 22 that questions of inherent risks were too fact intensive. (/d. at p. 1158.) “That deciding 23 inherent risk may sometimes be difficult does not persuade us it is beyond the competence 24 of California courts.” (/d. at p. 1159.) 25 Ul, The prim assum lon of ris loctrine lies to golf. 26 A. Action against golf course. 27 In Moran v. Fuji County USA (1995) 34 Cal.App.4" 127 [40 Cal.Rptr.2d 249], the 28 Fourth District Court of Appeal considered an action by a golfer who was hit in the head by Memorandum of Points & Authorities Page 4 ons \Y an errant golf ball. The golf course featured several mature pine trees standing between the fourth green and the fifth tee. (/d. at p. 130.) One of the trees shaded the tee area and a nearby concrete path, and its boughs often caught balls hit from the fourth tee. (/bid.) When the tree was removed due to disease, plaintiff saw at least four balls hit from the fourth tee, almost strike golfers at the fifth tee. (/bid.) The plaintiff was hit while walking from the fifth tee box. (/bid.) He sued the golf course, who successfully moved the trial court for summary judgment. (/bid.) It was not disputed that being struck by an errant golf ball was an inherent risk of the sport. (Moran v. Fuji, supra, 34 Cal.App.4" at pp. 132-133.) The Court of Appeal 10 remarked, 11 Here, if the relationship between the parties was one of coparticipants, ie., if the defendant here were the golfer who hit the errant ball, this would clearly 12 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 13 the defendant would hit an errant ball. Morgan, however, is not suing the 14 other player; he is suing the owner and operator of the golf course. (Moran v. Fuji, supra, 34 Cal.App.4" at p. 134.) 16 16 The duty of the owner and operator of the golf course was to provide a reasonably 17 safe golf course, which required the defendant to minimize the risks without altering the 18 nature of the sport. (Moran v. Fuji, supra, 34 Cal.App.4"" at p. 134.) The case was 19 determined to fall under the secondary assumption of risk, so the trial court erred in 20 granting summary judgment. (/d. at p. 134-135.) 21 B. Failure to warn by yelling “Fore.” 22 In Dilger v. Moyles (1997) 54 Cal.App.4th 1452 [63 Cal.Rptr.2d 591], the plaintiff was 23 struck on the golf course by a ball hit by the defendant. The plaintiff had teed off on the fifth 24 tee, and had driven her cart down the fairway to where her ball landed. (/d. at p. 1453.) 25 That fairway bordered the fairway for the sixth hole. (/bid.) The plaintiff was struck by a 26 ball hit from the sixth fairway. (/bid.) The defendant was standing behind a row of trees 27 that separated the fifth and sixth fairways when he hit the ball, and claimed that the trees 28 blocked his line of sight. (/bid.) The defendant successfully moved the trial court for Memorandum of Points & Authorities Page 5 |, ~ . \ ~ J YS y summary judgment, even when it was disputed whether or not the defendant “yelled ‘fore’ upon hitting his errant shot[.]" (/d. at pp. 1453-1454.) The Court of Appeal for the First District stated, While golf may not be as physically demanding as other more strenuous sports such as basketball or football, risk is nonetheless inherent in the sport.[Fn.] 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 10 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 1 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 12 urban life. Neighborhoods benefit by the scenic green belts golf brings to their 13 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 14 whose benefits to the individual player and to the community at large are so reat. 15 (Dilger v. Moyles, supra, 54 Cal.App.4th at pp. 1454-1455.) 16 While golf's stated etiquette requires a player whose shot may endanger another to 17 warn the other by shouting “fore,” this did not rise to the level of a legal duty to do so. 18 (Dilger v. Moyles, supra, 54 Cal.App.4th at pp. 1455-1456.) The failure to yell “fore” was 19 not seen as the kind of reckless or intentional conduct contemplated in the Knight opinion. 20 (Dilger v. Moyles, supra, 54 Cal.App.4th at p. 1456.) 21 Cc. Ricoc! ball 22 In another opinion concerning golf, the plaintiff was hit by a golf ball that had 23 ricocheted off a yardage marker after the ball had been hit by co-player. (American Golf 24 Corp. v. Superior Court (2000) 79 Cal.App.4th 30 [93 Cal.Rptr.2d 683].) The plaintiff sued 25 the golf course, who moved for summary judgment. (/d. at p. 34.) The plaintiff argued that 26 the golf course increased the risk of injury by its use of wooden yardage markers, and by 27 their location near the fairway. (/d. at p. 35.) The trial court denied the motion, and the 28 golf course petitioned for writ of mandate. (/bid.) The Court of Appeal considered the yard Memorandum of Points & Authorities Page 6 oN we WY markers to be commonplace and integral to the sport, and found that the system used by the defendant was standard in the industry. (/d. at p. 38.) “Because errant shots are an inherent risk of golf and errant shots by definition take flight in unintended directions, golf involves the very real possibility that a player will hook or slice a ball, the ball will strike a hard obstacle, and the ball will ricochet forcibly.” (/bid.) There were no reports of prior injuries in the area and no great danger apparent. (/d. at p. 39.) Plaintiff's expert's opinion regarding the location of the markers or the materials used did not create a triable issue of fact. (American Golf Corp. v. Superior Court, supra, 79 Cal.App.4th at 39.) “It will always be possible for a plaintiff who suffers a sports injury to 10 obtain expert testimony that the injury would not have occurred if the recreation provider 14 had done something differently. Such expert testimony is not sufficient to establish that the 12 recreation provider increased the inherent risks of the sport. Such expert opinion does not 13 create a triable issue of fact on a motion for summary judgment based on the primary 14 assumption of the risk defense.” (/bid.) The court issued a peremptory writ ordering that 15 the motion for summary judgment be granted. (/bid.) 16 D. The Is an Inherent risk of getting hit by an er ant ball when playin 17 golf. 18 In Shin v. Ahn (2007) 42 Cal.4" 484 [64 Cal.Rptr.3d 803], the California Supreme 19 Court held that, “...the primary assumption of risk doctrine does apply to golf and that being 20 struck by a carelessly hit ball is an inherent risk of the sport.” (/d. at p. 486.) The plaintiff, 21 defendant, and another player were playing together, and the defendant had gone ahead to 22 the next tee while the other two finished putting. (/d. at pp. 486-487.) The plaintiff took a 23 shortcut, which placed him in front of defendant and to his left. (/d..at p. 487.) Plaintiff 24 knew that he was in front of the tee box, that defendant was about to tee off, and that he 25 should stand behind a player who was teeing off. (/bid.) The defendant then inadvertently 26 “pulled” his tee shot to the left, hitting plaintiff in the temple. (/bid.) 27 The plaintiff alleged that he and defendant made eye contact before defendant hit 28 his shot. (Shin v. Ahn, supra, 42 Cal.4th at p. 487.) The plaintiff then gave inconsistent Memorandum of Points & Authorities Page 7 . we VY accounts of whether defendant made eye contact with plaintiff before defendant made his shot. (Ibid.) In a declaration made in support of his motion for summary judgment, the defendant stated that he looked directly ahead where he was aiming and saw no one. (Ibid.) In his deposition, though, he stated that he did not know where Plaintiff was. (/bid.) The trial court vacillated, but eventually denied the motion for summary judgment. (/bid.) The reviewing court below distinguished Dilger v. Moyles, supra, on the basis that the golfer whose ball hit the plaintiff was playing in a different group, and applied general negligence principles. (Shin v. Ahn, supra, 42 Cal.4" at p. 488.) The California Supreme Court was not persuaded that a case should turn on whether the defendant is playing with 10 plaintiff, or in another group: “Coparticipants have the same relationship to the sport 1 whether they are in the same playing group or not.” (/d. at p. 494.) Although not competing 12 with the other, the plaintiff and defendant "...were coparticipants...because they were both 13 engaged in the same sport, at the same time, using a common venue.” (/bid.) The 14 California Supreme Court also disapproved of the Court of Appeal’s heavy reliance on 15 golf's safety etiquette: “The sanction for a violation of a rule of etiquette is social 16 disapproval, not legal liability. This is true, generally, of the violation.of the rules of a game.” 17 (Shin v. Ahn, supra, 42 Cal.4th at p. 497.) 18 The court looked at sister-state decisions concerning golf, many of which applied a 19 reckless disregard or intentional conduct standards. (Shin v. Ahn, supra, 42 Cal.4th at pp. 20 494-496.) The first case denied recovery against a defendant who “shanked” a shot, 21 meaning the ball was struck with the part of the club head where the heel is joined to the 22 staff, which causes the ball to squirt off dramatically on an outward path. (/d. at p. 494.) An 23 Ohio court observed long ago that, “...not every shot played by a golfer goes to the point 24 where intends it to. go.” (Id. at p. 495.) Another case found sufficient evidence of 25 recklessness, though, when the defendant perceived the plaintiff to be “in the line of fire,” 26 waived him off, but then took the shot when the plaintiff did not move. (/d. at p. 495.) In 27 comparison, when a plaintiff was not in the intended path of the defendant's shot, and the 28 Mt Memorandum of Points & Authorities Page 8 - ~ we Y defendant did not see plaintiff before taking the shot, another court found no willful, wanton, or reckless conduct. (/d. at p. 496.) The record was too sparse to support a conclusion that there had been no recklessness. (Shin v. Ahn, supra, 42 Cal.4th at pp. 499-500.) Golf requires focus on the ball, unlike other sports where attention is divided between the ball and the players, but golfers may not ignore other players. (/d. at p. 499.) In deciding whether conduct was reasonable, negligent, or reckless, “....[rlelevant circumstances may include the golfer's skill level; whether topographical undulations, trees, or other impediments obscure his view; what steps he took to determine whether anyone was within range; and the distance and 10 angle between a plaintiff and defendant.” (/d. at p. 500.) The plaintiff testified that he and 11 defendant had made eye contact when plaintiff was cutting up the hill. (/bid.) Plaintiff did 12 not make clear how far he had proceeded up the hill, how far away he was from the 13 defendant, or whether he was stationary when the eye contact occurred. (/bid.) Defendant 14 said he looked to see if the area directly ahead of him was clear, but it is not apparent just 15 how broad or limited that area was. (/bid.) “We do not suggest that cases like this can 16 never be resolved on summary judgment, only that this record is insufficient to do so.” 17 (Ibid.) 18 Vv. This is an erra Il case, which needs no further resolutlo he facts. 19 The plain message delivered by Dilger was that the courts should not encourage golf 20 lawsuits, and should not discourage participation in golf. Shin did not change this 21 message. Shin dictates that the primary assumption of risk doctrine applies to this case. 22 The allegations in the First Amended Complaint and material facts show that the accident 23 occurred when Plaintiff and Defendant were playing golf together. Per Shin, the doctrine 24 applies to golf, and applies when the plaintiff and defendant are playing in the same group. 25 Applying the doctrine, Defendant had no duty to eliminate a risk inherent in playing golf 26 together. Defendant also had no duty to protect Plaintiff against a risk inherent in playing 27 golf together. Defendant had a limited duty to use due care not to increase the risks of 28 playing golf together over and above those inherent in playing golf together. It follows that Memorandum of Points & Authorities Page 9 nN we ~ / if the facts show that the risk to Plaintiff was inherent to playing golf together, there was no duty owed, and no duty was breached. Defendant is not responsible for an injury resulting from conduct that was accidental, careless, or negligent. When Plaintiff filed his original Complaint, the allegations described only a careless shot by Defendant. The First Cause of Action was replete with “negligence” language. The specific facts alleged did not contradict the various charges of negligence. There was then no charge or claim of reckless conduct, and no assertion that the Defendant's conduct was totally outside the range of ordinary activity involved in a game of golf. The First Amended Complaint alleges the same facts. The only difference was that 10 the words of negligence were changed to words of recklessness. Instead of alleging a 11 negligent failure to warn, there was now a reckless failure to warn. 12 The court may consider the original allegation of negligence as a judicial admission, 13 especially when there has been no indication that the allegation was the result of mistake, 14 inadvertence, or inadequate knowledge of the facts. (See, Patane v. Kiddoo (1985) 167 15 Cal.App.3d 1207, 1213 [214 Cal.Rptr. 9](‘Admissions in the original complaint, though 16 superseded by the amended complaint, are properly within our cognizance.") Rather, the 17 allegation was changed only in response to a demurrer based upon an argument that 18 negligent conduct would not be actionable. Even if the Plaintiff is able to show mistake, 19 inadvertence, or inadequate knowledge, then the allegation of negligence is an evidentiary 20 admission. (See, Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 457 [154 21 Cal.Rptr.3d 87].) Generally, a plaintiff must be allowed to explain the change, and may 22 controvert the admission, so the change itself is not generally sufficient to support a motion 23 for summary judgment. (See, id. at pp. 457-458.) Here, however, there is ample other 24 evidence upon which the court may grant summary judgment, as discussed below. The 25 admission of negligence should help shift the burden to Plaintiff, and Plaintiff cannot defeat 26 summary judgment by contradicting his own testimony. 27 The First Amended Complaint does not allege that the act of hitting the ball out the 28 sand trap was itself reckless, and Plaintiff cannot reasonably assert that the act of hitting a Memorandum of Points & Authorities Page 10 o NS LY ball out of a trap is something outside the ordinary. The evidence does indeed show that Defendant was hitting his ball out of sand trap. This was an expected part of the game. Golf courses are designed to have such areas, to increase the difficulty of hitting the ball onto the green or into the hole. There are clubs specially designed to hit balls out of traps. Traps and obstacles cannot be eliminated without fundamentally changing the game, and players will need to hit out of them. The act of hitting a ball out of a trap cannot be the basis of liability without chilling participation. The First Amended Complaint alleges that Defendant hit the ball out of the sand trap in a reckless manner, because it was done without warning, and because the ball was hit in 10 the direction of both the hole and “in close proximity” of the Plaintiff. The failure to warn is 11 an omission. In the context of sport, it is not reckless. Even though a warning is required 12 by the stated etiquette of golf, the failure to give one cannot be considered “totally outside 13 the range of ordinary activity.” Dilger held that the failure to yell “fore,” the established 14 warning shout, was not actionable, even when the defendant was driving the ball down the 15 fairway. Here, Defendant here was not driving the ball down the fairway, but was hitting the 16 ball a short distance from a sand trap towards the hole. The trap was adjacent to the 17 green. There was less risk of harm than there was in Dilger, and less potential magnitude 18 of harm. Failing to give a warning here was not reckless conduct, relative to the primary 19 assumption of risk. 20 The next act of described in both the original and First Amended Complaints is 21 hitting the ball with Plaintiff being in close proximity. The term “close” is relative in a game 22 in which distance is a key factor. Players take turns making their long shots from the tee 23 down the fairway, and then walk (or ride) together from the tee box, and eventually get the 24 golf balls and themselves at or near the green. If the players are at the green, they are 25 going to be close to one another, relative to the tee. Shots are taken when the players are 26 at or near the green. There are frequently sand traps or other hazards located near the 27 green. In this case, there were three traps close to the green. Taking a shot out of a sand 28 trap is part of golf, and taking a shot out of a sand trap will be done in close proximity of Memorandum of Points & Authorities Page 11 oN NS SY others. To take a shot at or near the green when a fellow player is in close proximity is not “totally outside the range of ordinary activity” in golf. It is inherent and necessary to the game. If players cannot take shots at, or close to, the green because other players are in close proximity, without risking tort liability, then the game cannot be played as it is. Participation will be chilled. The allegations admit, and the material facts show, that Defendant was hitting in the direction of the hole. Plaintiff was not located between Defendant and . In contrast to Shin, in this case there are two witnesses to the circumstances surrounding the hit out of the sand trap, besides Plaintiff and Defendant. Everyone, including Plaintiff, testified that the 10 ball went off on a bad angle. Photographs of the trap and green were referenced while 11 taking the depositions of each of the foursome. Plaintiff marked the location of the divot 12 which he had just fixed when he was hit, the location of the hole, and Defendant's location 13 in the trap when he hit the ball. (A MSJ Exh. |.) There is ample description of what 14 happened. No additional facts need adjudication. We know what happened, and why. 15 There is no conduct described by any of the witness that could be considered outside 16 ordinary golf activity. 17 Plaintiff may argue that the holding of Shin prevents the court from granting 18 summary judgment, because the determination of whether conduct was reckless is too fact 19 intensive, especially in the context of the game of golf. This would be misconstruing the 20 holding of that case, and ignoring the clear directive of the California Supreme Court in the 21 Nalwa case. Nalwa directs trial courts to grant summary judgment when the primary 22 assumption of risk applies. The moving defendant in Shin failed to supply sufficient facts to 23 support his argument, which is to say he failed to meet his initial burden of production. At 24 that, the defendant's deposition was inconsistent with his declaration. (Shin v. Ahn, supra, 25 42 Cal.4"" at p. 488.) A court can’t grant summary judgment in that circumstance, no matter 26 how sound the legal argument might be. The defendant in Shin succeeded in showing that 27 the doctrine applied to golf, but failed to show that no triable issues of fact remained. Shin 28 does not carve out an exception for primary assumption of risk in general, or golf in Memorandum of Points & Authorities Page 12 -—~ — VY particular, in ruling on motions for summary judgment. Instead, it affirms that the same rules for motions for summary judgment in general apply to primary assumption of risk cases. Another key distinction from Shin is that Plaintiff here originally described the conduct as negligent. Plaintiff should have the burden to show that it was not negligent, which is a burden the plaintiff in Shin did not have. If Mr. Tarango was only negligent in hitting the ball out of the trap, as originally pled, he should not be the subject of a trial. Forethought must be given as to what effect imposing liability on Mr. Tarango in this situation would have on the enjoyment of golf locally, and throughout the state. The manifest problem with Plaintiffs current action is its 10 potential for having a chilling effect. People will not be able to enjoy the game if they are 11 concerned that a shot that goes off target could land them in court. Extraordinary 12 precautions would become necessary, making the game cumbersome and less enjoyable. 13 The putting green should not be a litigation zone. Hitting out a trap, which is meant to be 14 more difficult by design, should not the basis for imposing liability. If Mr. Tarango could be 15 liable in this situation, people are not going to play golf together in a foursome, or with 16 anyone near the green. 17 Vv. No othert le Issues of fi xist. 18 During the course of his deposition, Plaintiff ventured that Defendant was intoxicated 19 at the time he hit the ball out of the trap. There is no allegation in the First Amended 20 Complaint to this effect. No leave to amend should be given. Upon examination, Plaintiff 21 admitted that he had no idea how many alcoholic beverages Mr. Tarango drank. Plaintiff 22 admitted seeing no signs of intoxication. Both Mr. Freund and Mr. Jacobsen testified that 23 Mr. Tarango was not intoxicated. To be fair, everyone enjoyed a beer during the game. 24 Plaintiff stated the enjoyed a beer. Mr. Tarango said he did. Mr. Freund stated no one was 25 intoxicated. 26 Defense counsel could not find any opinions discussing the effect of drinking of 27 alcoholic beverages might have on the application of the primary assumption of risk to the 28 game of golf, Only one case, Freeman v. Hale (1994) 30 Cal.App.4” 1388 [36 Cal.Rptr.2d Memorandum of Points & Authorities Page 13 a. - ~ f ww Wy 418], has considered evidence of drinking alcoholic beverages in the context of the primary assumption of risk, but it concerned the sport of downhill snow skiing. The court held that the consumption of such beverages was not within the range of activities involved in that sport, and that, to the extent that drinking could increase the risk of a collision, the risk was not inherent in the sport. (/d. at p. 1390.) The collision in that case resulted in the plaintiffs neck being broken and quadriplegia. (Id. at p. 1391.) The defendant had consumed alcoholic beverages on his overnight trip, had slept only two hours, and had drunk a mix of bourbon and Coke after lunch. (/bid.) He was loud and boisterous, and exhibited signs of intoxication. (/bid.) The defendant did not establish that his drinking did not increase the 10 risk, or that the drinking was not a proximate cause of the accident. (/d. at p. 1396.) 11 Golf is a different type activity than is downhill skiing. As a leisurely. social sport, golf 12 does not forbid drinking alcoholic beverages during the game, and it is not uncommon for 13 players to enjoy a drink before, during, or after a game. Many country clubs have bars on 14 the premises, and Mr. Carter stated the beer consumed during their game was purchased 15 on-site. To be sure, if the court were to rule that the drinking of a beer, without signs of 16 intoxication, was a possible basis of liability, it would have a chilling effect on the past-time, 17 and the ruling would have economic consequences. It would fundamentally change how 18 golf is enjoyed in the State. Defendant acknowledges that the fact that a person playing 19 golf while intoxicated would increase the risk of harm, and does not suggest that the 20 defense should apply even if a person is playing while drunk. Defendant only asserts that, 21 without evidence of intoxication, having a beer is not outside the range of ordinary activity. 22 Plaintiff, having enjoyed a beer, too, cannot equitably charge that is not. The drinking of 23 beer also had no causal connection with the incident. 24 Conclusion 25 There is nothing unusual about the facts of this case. Mr. Tarango was not doing 26 something completely out of the ordinary when he took a shot out of the trap. He did not 27 mean to hit Mr. Carter, and he thought he had a clear shot onto the green. Considering all 28 the facts, the case does not cry out for a judgment against the Defendant. The policy of the Memorandum of Points & Authorities Page 14 oN of Ne YY 1 primary assumption of the risk doctrine is to prevent lawsuits bein