CALIFORNIA SUPREME COURT EXTENDS LEGAL PROTECTION TO PARTICIPANTS IN NON-CONTACT SPORTS

In Shin v. Ahn (Case No. S146114) (Click here to read opinion issued on August 30, 2007), the Supreme Court applied the primary assumption of risk doctrine to non-contact sports, holding that "the primary assumption of risk doctrine does apply to golf and that being struck by a carelessly hit ball is an inherent risk of the sport." Accordingly, in order to establish liability for an injury caused by an errant golf shot, a plaintiff must show that the defendant golfer "engaged[] in conduct that was 'so reckless as to be totally outside the range of ordinary activity involved in golf.'"

Defendant Jack Ahn had carelessly teed off while his playing partner, plaintiff Johnny Shin, was nearby. The resulting errant shot injured Shin. There were disputed facts as to whether Ahn knew where Shin was located at the time he hit the ball. The Court of Appeal held the primary assumption of risk doctrine did not apply to shield the defendant under these facts because Ahn and Shin were in the same playing group, and hence Ahn had a duty to know his whereabouts. The Court of Appeal contrasted those facts with other situations on a golf course where a player hits someone on a different fairway and in a different playing group, finding that the assumption of risk doctrine would apply to protect the defendant there. Finally, the Court of Appeal found liability should attach because Ahn had violated a rule of golf by not knowing where his playing partner was.

The Supreme Court criticized the Court of Appeal's reliance on golf's rules of etiquette involving safety to demonstrate liability, noting that these rules "govern socially acceptable behavior" and do not constitute evidence of legal liability. The Supreme Court also criticized the Court of Appeal's distinction between cases involving injuries to the defendant's playing partner as opposed to a golfer on a different fairway, holding that "we are not persuaded that a case should turn on whether a defendant is playing with the plaintiff, or in another group. The question of duty involves the relationship of the parties to the sport." The court then identified a number of factors to guide the determination of whether a golfer acted reasonably, negligently, or recklessly, including "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 angle between a plaintiff and a defendant."

Horvitz & Levy LLP represented amici in support of defendant and presented a portion of the oral argument in the Supreme Court. For more information about this case, contact Jeremy B. Rosen at jrosen@horvitzlevy.com or (818) 995-0800.

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