In the case of a golfer who says she suffered serious injuries after being hit in the head by a golf ball, a architect qualified as a safety expert even though he had no experience with golf course design.
The Appellate Court also ruled in Sullivan-Coughlin v. Palos Country Club, 2004 WL 1393610 (1st Dist., June 22), that:
- The defendant owed the golfer a duty to protect her from golf balls that flew into the area where a pro shop and barbecue pit were located.
- A "hold-harmless" provision in an agreement for rental of a golf cart was irrelevant.
- Assumption of the risk did not apply.
- The defendant waived its argument on the plaintiff's alleged drinking by failing to "revisit the issue at trial," after the trial judge granted plaintiff's motion in limine to bar testimony on this topic.
Diane Sullivan-Coughlin was the passenger in a golf cart driven by her sister, Maria Shirley. After finishing a game of golf, Maria drove to a cart return area near a pro shop and barbecue pit. Maria testified she heard a "whack" and saw Diane tumble from the cart like a rag doll and hit her head on the pavement.
Taking the testimony in the light most favorable to Diane, there was evidence that the owner of the golf course knew that golf balls regularly flew into the area where Diane was injured.
The architect called as a safety expert for Diane, Michael Robert Eiben, testified that the golf course was unreasonably dangerous. Based on the local building code (referred to as BOCA, for the Building Officials and Code Administrators model code), Eiben's expert opinion was that the area of the pro shop, cart return and barbecue pit should have been moved farther from the golf course, or guarded by a fence, because people tended to congregate there.
Defense counsel unsuccessfully argued that Eiben did not qualify as an expert because he had no experience with golf course design.
The jury returned a verdict of $ 457,995 in favor of Sullivan-Coughlin (reduced to $ 320,596 based on a finding of 30 percent contributory fault), and the Appellate Court affirmed. Here are some highlights of Justice Robert Cahill's opinion (with various omissions not noted in the quoted text).
Landowner's Duty
"Generally, a landowner will not be held liable for an injury caused by a dangerous condition on the land that is known or obvious. Prochnow v. El Paso Golf Club Inc., 253 Ill.App.3d 387, 397 (1993). An exception to this rule occurs when the landowner can and should anticipate the injury notwithstanding the known or obvious nature of the condition. Anticipation of injury from known and obvious dangers may arise when there is reason to expect that an invitee's attention may be distracted.
"Distracted invitees may not discover what is obvious, forget what has been discovered or fail to protect themselves against the dangerous condition.
"The plaintiff in Prochnow was struck by a golf ball while standing in the deck area of the defendant's golf club clubhouse. The court held the defendant owed the plaintiff a duty because it was reasonably foreseeable that a patron of the defendant's clubhouse would walk outside to socialize on the deck and be struck by a stray golf ball.
"The court noted that the deck's proximity to the clubhouse bar and dining area invited such activity and found it likely that patrons would be distracted by conversation with other patrons or by activities on the golf course, such that the danger of being struck by a golf ball might not be anticipated. Given the proximity of the deck to the golf course, and the fact that the defendant had already constructed a fence to offer some protection against the type of accident sustained by the plaintiff, the court ruled the danger was reasonably foreseeable.
"Prochnow guides our decision here. Plaintiff presented evidence that defendant knew or should have known the area where plaintiff sustained the injury was unreasonably dangerous and that club patrons could have been distracted from such danger. Plaintiff was allegedly struck by the golf ball outside the ninth green near the pro shop, barbecue pit and cart return. There was evidence that golf balls occasionally landed in this area and that defendant had constructed a fence to provide limited protection. Also, based on the activities in the area, it was reasonable to conclude that golfers would stop to socialize or participate in golf-related activities, not realizing the danger of being struck by a golf ball."
Level of Expertise
"Defendant argues Eiben's opinion testimony that the area was unsafe should have been excluded because Eiben lacked unique architectural experience with respect to golf course design and safety," Cahill continued. "We note that while this argument is made in support of defendant's position that it was entitled to judgment notwithstanding the verdict, it requires that we focus on the trial court's admission of Eiben as an expert witness.
"The decision to admit expert testimony is within the sound discretion of the trial court. Such testimony is admissible if the proffered expert is qualified by knowledge, skill, experience, training or education, and the testimony will assist the trier of fact in understanding the evidence.
"Defendant does not argue that Eiben was unqualified in the area of general architecture or the BOCA code. Rather, defendant maintains that Eiben was required to have specialized knowledge in golf course design to qualify him to make opinions about the safety of defendant's course.
"Defendant does not cite authority in support of its argument. Nor do we find that such specialized expertise was required under the facts of this case. Eiben's testimony did not concern the safety and design of the golf course but rather the safety and design of the area outside the course. Also, defendant was afforded the opportunity to cross-examine Eiben and present its own expert, someone with specialized knowledge in golf course design. We do not believe the trial court abused its discretion by allowing Eiben's opinion testimony."
Assumption of Risk
"Defendant first argues the trial court improperly excluded assumption of risk evidence," Cahill noted. "Defendant cites the golf cart rental agreement, which provided that defendant would be held 'harmless from any damage or claim of any nature whatsoever that may arise from of by reason of such use of said golf cart.' Defendant maintains this 'evidence was pertinent to a central issue in the case: that the plaintiff understood and accepted the risks of operating a golf cart.' We disagree.
"Plaintiff did not allege the golf cart was the instrumentality causing her injury. Rather, plaintiff's theory of recovery was premised on a finding that she was hit by a golf ball, rendered unconscious, fell out of a golf cart and hit her head on the pavement. Plaintiff maintained defendant was negligent because it knew or should have known of the danger to patrons from golf balls hit in the area where plaintiff was injured and failed to protect against such danger. The contract language bears no relevance to this issue and was properly excluded.
"Defendant next argues the trial court erred in barring defendant from arguing primary implied assumption of risk as an affirmative defense. Primary implied assumption of risk exists when a plaintiff assumes known risks inherent in a particular activity or situation. The risks are not those created by the defendant's negligence but by the nature of the activity itself.
"Primary implied assumption of risk is inapplicable here because 'golf is simply not the type of game in which participants are inherently, inevitably or customarily struck by the ball.' Zurla v. Hydel, 289 Ill.App.3d 215, 221 (1997).
" 'A golf course is not usually considered a dangerous place, nor the playing of golf a hazardous undertaking. It is a matter of common knowledge that players are expected not to drive their balls without giving warning when within hitting distance of persons in the field of play, and that countless persons traverse golf courses the world over in reliance on that very general expectation.' Zurla, 289 Ill.App.3d at 222.
"Because there are no inherent risks in golf, defendant was not entitled to a primary implied assumption of risk defense.
"We note that although defendant does not raise the precise argument in its brief, we find secondary implied assumption of risk is also inapplicable. Under secondary implied assumption of risk, a plaintiff implicitly assumes the risks created by the defendant's negligence. Because the doctrine acts as an absolute bar to recovery, it has been abolished by the introduction of comparative negligence into our jurisprudence.
"Based on our findings with respect to assumption of risk evidence, we need not consider defendant's argument that the trial court erred by failing to instruct the jury on assumption of risk."
Alleged Role of Alcohol
"Defendant's final argument," Cahill added, "concerns the trial court order granting plaintiff's motion in limine to exclude evidence of plaintiff's blood-alcohol level. Evidence of alcohol consumption is so prejudicial that more than mere drinking must be shown. Actual intoxication with impairment of physical or mental capabilities is required.
"At the hearing on plaintiff's motion to exclude evidence of plaintiff's blood-alcohol level, defense counsel conceded there was no one who could testify that plaintiff was intoxicated at the time the accident occurred. The trial court granted plaintiff's motion on this ground but said it would revisit the issue at trial on a showing that defendant could show intoxication.
"A ruling on a motion in limine is a determination addressing an admissibility of evidence issue likely to arise at trial and is subject to reconsideration. Whether granted or denied, a motion in limine itself does not preserve the issue for appellate review. Rather, to preserve an error in the exclusion of evidence, the proponent of the evidence must make an adequate offer of proof in the trial court.
"Failure to make such offer of proof results in waiver of the issue on appeal.
"The trial court here made the interlocutory nature of its order to exclude blood-alcohol evidence known to defendant and invited defendant to revisit the issue at trial. Defendant failed to raise the issue again at trial by offering the evidence or requesting to make an offer of proof. The issue is waived."
Source: Chicago Daily Law Bulletin