Gyuriak v. Millice

775 N.E.2d 391, 2002 Ind. App. LEXIS 1586, 2002 WL 31112004

• Court: Indiana Court of Appeals
• Decided: September 24, 2002
• Docket: 71A04-0112-CV-569
• Status: Published

Opinions

OPINION

BAILEY, Judge.

Case Summary

Thomas Gyuriak (“Gyuriak”) and his wife Carol Gyuriak (“Carol”), plaintiffs below (collectively, “the Gyuriaks”), appeal the trial court’s grant of summary judgment in favor of James Millice (“Millice”) on the Gyuriaks’ claims of negligence, recklessness and loss of consortium stemming from a golf course accident in which Gyuriak was struck in the head by Mil-lice’s errant tee shot. We affirm.

Issues

The Gyuriaks present four issues, which we consolidate and restate as whether the trial court properly entered summary judgment on their claims.

Facts and Procedural History

On June 16, 1998, Gyuriak and Milliee were golfing in different foursomes in a charity golf outing on a course in northern Indiana. Gyuriak’s foursome was playing the third hole while Millice’s group was preparing to tee off from the second. The two holes were roughly parallel, and played in opposite directions. Gyuriak evidently hit his ball into the rough between the second and third hole, approximately 220 yards from the second hole tee. The ball was closer in the rough to the fairway of the third hole. As Gyuriak was preparing to hit out of the rough, Milliee was addressing his own ball at the second hole tee. Milliee shot first, but not very well, and his ball unexpectedly flew directly toward Gyuriak. The other three in Mil-lice’s group yelled “fore,” and everyone save for Gyuriak ducked. Gyuriak later stated that he never heard the warnings. Millice’s ball struck Gyuriak squarely on the head as Gyuriak was in mid-swing.

On May 26, 2000, the Gyuriaks filed their Complaint against Milliee, alleging that he was negligent and reckless, and alleging that Carol lost the consortium of her husband. On September 6, 2001, Mil-lice filed his Motion for Summary Judgment and supporting materials. The Gyuriaks responded on October 18, 2001. The trial court heard Millice’s summary judgment motion on October 22, 2001, and granted it on November 29, 2001. The Gyuriaks now appeal.

Discussion and Decision

A. Standard of Review

Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary judgment is appropriate when there are no genuine issues of material fact and when the moving party is entitled to judgment as a matter of law. When reviewing a decision to grant summary judgment, this court applies the same standard as the trial court. Best Homes, Inc. v. Rainwater, 714 N.E.2d 702, 705 (Ind.Ct.App.1999). We must determine whether there is a genuine issue of material fact requiring trial, and whether the moving party is entitled to judgment as a matter of law. Id. While our cases regularly state that summary judgment is rarely appropriate in negligence cases, see, e.g., McDaniel v. Business Inv. Group Ltd., 709 N.E.2d 17, 20 (Ind.Ct.App.1999), summary judgment will be entered if the undisputed material facts negate at least one element of a plaintiffs claim. Id.

B. Analysis

1. Mark v. Moser

The trial court granted summary judgment in favor of Milliee on the basis of this Court’s recent opinion in the case of Mark v. Moser, 746 N.E.2d 410 (Ind.Ct.App.2001). In Mark, another panel of this Court determined that participants in sports activities are not liable for injuries caused by their ordinary negligence. Rather, we held that

voluntary participants in sports activities assume the inherent and foreseeable dangers of the activity and cannot recover for injury unless it can be established that the other participant either intentionally caused injury or engaged in conduct so reckless as to be totally outside the range of ordinary activity involved in the sport. The plaintiffs assumption of risk is primary in nature inasmuch as it flows from the legal relationship of the parties, is evaluated according to an objective standard rather than a subjective standard, and acts to bar recovery. Thus, it is a question of law for the determination of the court, whether the injury-causing event was an inherent or reasonably foreseeable part of the game, such that the plaintiff is considered to have assumed the risk. If the court determines that the plaintiff did assume the risk, then the plaintiffs cause fails. If, on the other hand, the court determines that plaintiff did not assume the risk, then the cause proceeds to a jury to determine, as a question of fact, whether the co-participant intentionally or recklessly caused the injury.

Id. at 420 (internal footnote omitted). The trial court rejected the Gyuriaks’ negligence claim outright, and entered summary judgment against them on their recklessness claim, concluding that under the holding in Mark, Gyuriak assumed the risk of his injury by playing golf.

The Gyuriaks first argue that the decision in Mark must be overturned because it is inconsistent with the Indiana Comparative Fault Act. See Ind.Code §§ 34-51-2-1 to 19. In particular, they contend that the holding in Mark conflicts with the Comparative Fault Act because it improperly sets up assumed risk as an absolute bar to liability for fault. Under the Act, “fault” includes negligent and reckless conduct as well as the “unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages.” Ind.Code § 34-6-2-44(b). This Court recognized in Mark that because the Act defines incurred risk¹ as a form of fault, incurred risk cannot operate as a complete bar to recovery; rather, incurred or assumed risk that constitutes fault must be weighed and apportioned along with any other fault. Mark, 746 N.E.2d at 414. See also Heck v. Robey, 659 N.E.2d 498, 504-505 (Ind.1995) (stating that because the Comparative Fault Act includes incurred risk within the definition of fault, “the complete defense of ‘incurred risk’ no longer exists; it is subsumed by the concept of fault in our comparative fault scheme.... Any rule that purports to effect an absolute defense based upon incurred risk is contrary to our comparative fault scheme.”).

We were careful to note in Mark, however, that assumed risk is generally considered to be either primary or secondary in nature, and that, at least in the context of sporting activities, only the secondary assumption of risk was subsumed by the Comparative Fault Act. See Mark, 746 N.E.2d at 418. This is because the primary assumption of risk occurs when an individual, by voluntarily engaging in an activity, consents to those risks that are inherent in and arise by virtue of the nature of the activity itself. See id. In such cases, the participant is owed no duty with regard to such inherent and ordinary risks. See id. Thus, when a person sustains an injury as a result of risks inherent in sporting activities in which the person voluntarily engages, there is no occasion to invoke comparative fault principles because there has been no - breach of any duty of care and accordingly no conduct that would warrant the imposition of liability. See Knight v. Jewett, 3 Cal.4th 296,11 Cal.Rptr.2d 2, 834 P.2d 696, 704 (1992). Secondary assumption of risk, on the other hand, arises when a defendant has breached a duty of care to the plaintiff, but the plaintiff nevertheless knowingly encounters the risk presented by the defendant’s breach. Mark, 746 N.E.2d at 418. Whether a plaintiff appreciated and willingly encountered the risk created by the defendant’s breach is a question of fact. Id. The kind of incurred or assumed risk that has been subsumed by the Comparative Fault Act is thus necessarily the secondary, and not the primary, kind, because the concept of primary assumed risk essentially addresses the existence of a legal duty and not the nature of the parties’ conduct, and is therefore unrelated to the question of “fault.”² Thus, the holding in Mark, which is essentially that a participant in a sporting activity assumes the risk of dangers inherent in the activity such that the participant is owed no legal duty with regard to those inherent risks, does not conflict with the Comparative Fault Act.

The Gyuriaks further argue that if Mark is legally valid, it must be limited to situations involving competitive contact sports. Again, we disagree. Mark itself did not involve a contact sport. Rather, the parties were participants in a triathlon. Moreover, the Mark case itself repeatedly states its rule as applying to “participants in sports activities,” or variations thereof, and does not limit itself to sports competitions. See Mark, 746 N.E.2d at 420. We therefore reject the Gyuriaks’ proposed limitation.

2. Application of Mark v. Moser

Pursuant to Mark, the trial court properly granted summary judgment for Millice on Gyuriaks’ negligence count. As for the Gyuriaks’ recklessness count, the trial court concluded as a matter of law that Gyuriak assumed the risk of being struck by a ball when he decided to play golf, and that his claim therefore failed. We agree. As noted above,

voluntary participants in sports activities assume the inherent and foreseeable dangers of the activity and cannot recover for injury unless it can be established that the other participant either intentionally caused injury or engaged in conduct so reckless as to be totally outside the range of ordinary activity involved in the sport.

Mark, 746 N.E.2d at 420. In this case, there is no allegation that Millice intentionally injured Gyuriak; rather, it is undisputed that Millice simply shanked his ball. The Gyuriaks argue that Millice was reckless for teeing off because Gyuriak was standing in a position within the potential range of a mis-hit shot. Millice’s decision to tee off under the circumstances was not, however, “conduct so reckless as to be totally outside the range of ordinary activity involved in the sport.” See Mark, 746 N.E.2d at 420.

When the ball hit him, Gyuriak was standing in the rough between the two holes, at a spot closer to his own fairway. Gyuriak was therefore not standing within the area into which a player hitting from Millice’s tee would direct his shot, and was not within the intended or anticipated path of Millice’s ball. We simply cannot conclude that the act of teeing off is so reckless as to be totally outside the range of ordinary golf activity just because another player who is not within the appropriate and anticipated range of the first player’s ball could conceivably be hit by the ball if it were shanked. Given the nature of golf course design, characterized by adjacent holes; the fact that courses are frequently crowded, often with more than one group playing each of a course’s holes at a given time; and the nature of the game itself, involving shots traveling in excess of 200 yards, it would appear that a good number of golfers playing a course on a given day would be within each other’s potential range for mis-hit shots. In light of these considerations, we must conclude as a matter of law that the risk to a golfer of being struck by an errantly but otherwise appropriately-hit ball when playing, however minimal, is an inherent and reasonably foreseeable aspect of the game of golf, and that golfers assume that risk in the primary sense by choosing to play the game. In other words, golfers simply owe one another no duty to protect one another from bad shots. This is not to say that golf course accidents will never give rise to liability. Our conclusion here would no doubt have been different had Millice shot his ball while Gyuriak was within range in Millice’s own fairway. This, however, was not the case here.

We therefore conclude under the circumstances that the risk of Millice accidentally shanking his ball and striking Gyuriak while Gyuriak was in the rough between the two holes was an inherent and reasonably foreseeable danger associated with the game of golf, and that Gyuriak accordingly assumed that risk as a matter of law. Millice therefore did not owe Gyuriak a duty of care with regard to his tee shot. As Judge Baker, the author of our Mark decision, stated in a concurring opinion in another case, “[a]ny golfer in the rough of a hole which runs parallel to another should, as a matter of law, know the dangers of approaching golfers. To be surprised that approaching golfers hook or slice is akin to being surprised that not everyone shoots par.” Lincke v. Long Beach Country Club, 702 N.E.2d 738, 741 (Ind.Ct.App.1998) (Baker, J., concurring). The trial court thus properly entered summary judgment in favor of Millice on the Gyuriaks’ claims for recklessness. Because Carol’s loss of consortium claim is purely derivative of her husband’s claims, summary judgment was properly entered against her as well. See Durham v. U-Haul Intern., 745 N.E.2d 755, 764 (Ind.2001).

Affirmed.

NAJAM, J., concurs. ROBB, J., dissents with separate opinion.

1 . We use the terms "incurred risk” and "assumed risk” interchangeably because they basically describe the same concept. See Hardin v. Christy, 462 N.E.2d 256, 263 n. 3 (Ind. Ct.App.1984) ("While some courts have limited the term 'assumption of the risk' to cases in which the parties stand in some sort of contractual relation, and have created other terms, such as 'incurred risk’ for other cases, this is generally considered a distinction without a difference. Hence the terms are essentially interchangeable.”).

2 . We recognize that in Heck, our Supreme Court disapproved of “primary assumption-of-risk terminology to the extent that it suggests that a lack of duty may stem from a plaintiff's incurred risk.” 659 N.E.2d at 505. In the subsequent case of Creasy v. Rusk, 730 N.E.2d 659 (Ind.2000), however, the Supreme Court held that an Alzheimer's patient owed his nursing home caregiver no duty of care primarily because, like public safety officials, "caregivers ... are 'specifically hired to encounter and combat particular dangers,’ and by accepting such employment assume the risk associated with their respective occupations.” Id. at 668 (quoting Anicet v. Gant, 580 So.2d 273, 276 (Fla.Dist.Ct.App.1991)). As Justice Dickson recognized in his dissent in Creasy, the majority appears to have effectively adopted the primary assumption of risk doctrine as part of the standard duty analysis. Id. at 670-71 (Dickson, J., dissenting) (noting that Heck appeared to reject the primary assumption of risk doctrine, and that "[c]onsid-ering precedent, it is difficult to reconcile the majority opinion in this case with precedent. ...”). We agree, and therefore do not consider the above-quoted statement from the Heck decision regarding the primary assumption of risk doctrine to represent the Supreme Court's current position on the question.