McGuire v. New Orleans City Park Imp. Ass'n

835 So. 2d 416, 2003 WL 115587
CourtSupreme Court of Louisiana
DecidedJanuary 14, 2003
Docket2002-C-1401
StatusPublished
Cited by16 cases

This text of 835 So. 2d 416 (McGuire v. New Orleans City Park Imp. Ass'n) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGuire v. New Orleans City Park Imp. Ass'n, 835 So. 2d 416, 2003 WL 115587 (La. 2003).

Opinion

835 So.2d 416 (2003)

Robert J. McGUIRE
v.
NEW ORLEANS CITY PARK IMPROVEMENT ASSOCIATION, and ABC Insurance Company.

No. 2002-C-1401.

Supreme Court of Louisiana.

January 14, 2003.

*417 Richard P. Ieyoub, Attorney General, Susan H. Lafaye, Baton Rouge, Counsel for Applicant.

David A. Abramson, Lewis, Kullman & Sterbcow, New Orleans, Counsel for Respondent.

JOHNSON, Justice.

This is a personal injury case involving a non-golfer, who was struck in the groin area by a golf ball while jogging near one of New Orleans City Park's golf courses. The plaintiff sustained a serious injury to his right testicle, which ruptured, requiring surgery and partial removal. As a result of the injury, the plaintiff sued New Orleans City Park Improvement Association, which operates City Park, and the State of Louisiana, which insures the facility. The trial jury found City Park negligent and assessed it 40% fault and assessed the plaintiff with 60% comparative fault. City Park appealed this ruling. The court of appeal affirmed the jury's findings. City Park filed this writ of certiorari, which we granted, to determine whether City Park owed a duty to non-golfers jogging near a golf course. Under these circumstances, we find that City Park's golf course did not present an unreasonable risk of harm. City Park therefore had no duty to provide additional protection or warnings to a non-golfer.

*418 FACTS AND PROCEDURAL HISTORY

On April 25, 1994, the plaintiff, Robert McGuire, and two of his friends, Ron Riggle and Dr. James Moises, were jogging on Palm Drive in New Orleans City Park near the Bayou Oaks Little Course. Three of the park's golf courses are north of the interstate and railroad tracks. The Little Course is also called the South Course. At trial, the plaintiff testified that he began jogging on City Park Avenue, where he met his two friends, turned right onto Marconi Drive to Tad Gormley Stadium, where they turned right and entered City Park, down Franklin D. Roosevelt Mall veered left on Golf Drive, which becomes Palm Drive once the bridge is crossed.[1] As they were jogging on Palm Drive, after crossing the bridge near South Course Hole No. 3, a golf ball landed on the roadway in front of the plaintiff then bounced and struck him in the groin area, causing his right testicle to rupture. As a result of the injury, the plaintiff had surgery and a portion of his right testicle was removed.

New Orleans City Park covers 1500 acres of land, and is the fifth largest urban park in America. It has four golf courses, with 22 miles of unrestricted public roadways, which is surrounded by golf tees and greens on both sides. South Course is one of the shorter of the four golf courses.[2]

On October 20, 1994, the plaintiff filed suit against the New Orleans City Park Improvement Association, the operators of the golf course, and its insurer (collectively referred to as "City Park") for damages, alleging that the City Park breached its duties: to warn non-golfers on Palm Drive of the danger of golf balls, to configure the golf course so that a danger was not created for non-golfers on Palm Drive, and to provide a protective barrier between the golf course and Palm Drive.

Subsequently, City Park filed a motion for summary judgment, asserting that: 1) the plaintiff jogged through the golf course between two clearly visible greens, which was not a hidden peril that required a warning or protective barrier; 2) the risk was ordinary; and 3) it was not reasonably foreseeable that a golfer would hit a ball so far to the right that a non-golfer would be injured. The trial court granted its motion. The court of appeal reversed the trial court and remanded the case for further proceedings, finding that there were issues of material fact relating to City Park's duty. City Park filed a writ of certiorari, which this Court denied. City Park filed a second motion for summary judgment, which the trial court denied. On October 16, 2000, this matter went to a jury trial before the Honorable Kim Boyle, Judge Pro Tempore.

After a trial on the merits, the jury found City Park negligent and awarded judgment in favor of the plaintiff in the amount of $13,750 for past, present and future physical pain and suffering; $15,000 for past, present and future mental distress; $30,000 for past medical expenses; $16,250 for permanent disfigurement, for a total damage award of $75,000. The jury *419 assessed City Park with 40% fault, and assessed the plaintiff with 60% comparative fault. City Park filed a Motion for Judgment Notwithstanding the Verdict. A remittitur was granted reducing the medical expenses from $30,000 to $11,680.52; thus, the total damages were reduced to $56,680.82. City Park appealed this ruling.[3]

On appeal, a three member panel of the Fourth Circuit Court of Appeal affirmed the trial court's ruling, with one judge dissenting. The court of appeal held that City Park owed a duty to a "passer-by not playing golf and not on the golf course" to exercise reasonable and ordinary care to keep the premises reasonably safe and take reasonable precautions, such as: placing warning signs, posting barriers between the golf tee and the road, configuring the course differently, or closing Palm Drive to pedestrians and bicycle traffic near the golf course. The court of appeal found no manifest error in the jury's allocation of fault and found that evidence supported an award for disfigurement despite the lack of expert medical testimony, noting the plaintiff's testimony concerning his testicle's disfigurement was credible and was corroborated by the medical records.

Dissenting, Judge Gorbaty reasoned that City Park did not breach its duty to protect the plaintiff, but instead, acted reasonably to protect the public from any foreseeable injury. He cited Sutter v. Audubon Park Com'n, 533 So.2d 1226, 1231 (La.App. 4th Cir.1988), writ denied, 538 So.2d 597 (La.1989), which sets forth the proper test for whether the property manager has acted reasonably in view of the probability of an injury to others. He further noted that the plaintiff "lived near City Park for many years, had jogged along this very path on numerous occasions and was aware that the path on which he was jogging traversed a golf course." Judge Gorbaty explained that the plaintiff conceded that he saw golfers as he was jogging. However, at trial, the plaintiff testified that he failed to see the signs indicating this was a golf course, i.e., "Golf Cart Crossing." Judge Gorbaty found that the majority's suggestions of preventive measures went beyond what is reasonable to protect against such a remote possibility of harm. Thus, he held that the trial court erred in finding City Park liable for the plaintiff's liability.

DISCUSSION

A reviewing court may not disturb a jury or trial court's findings, which are afforded vast deference, unless a particular finding of fact was "clearly wrong or manifestly erroneous." The determination of an unreasonable risk of harm is subject to review under the "manifest error" standard. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98) 708 So.2d 362, 365; Stobart v. State, 617 So.2d 880, 882 (La.1993); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

In general, landowners and land occupiers have a duty to refrain from acting negligently toward those they know or should have known will come onto their property.

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835 So. 2d 416, 2003 WL 115587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcguire-v-new-orleans-city-park-imp-assn-la-2003.