Shin v. Ahn 7/21/06 CA2/2

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B184638

Case Date: 10/25/2006

Preview:Filed 7/21/06

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

JOHNNY SHIN, Plaintiff and Respondent, v. JACK AHN, Defendant and Appellant.

B184638 (Los Angeles County Super. Ct. No. SC080477)

APPEAL from an order of the Superior Court of Los Angeles County. Paul G. Flynn, Judge. Affirmed and remanded.

Barry Bartholomew & Associates and Kathryn Albarian for Defendant and Appellant.

Knickerbocker Law Corporation, Richard L. Knickerbocker, Gregory G. Yacoubian; Michael H. Silvers, a Law Corporation, and Michael H. Silvers for Plaintiff and Respondent.

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Defendant and appellant Jack Ahn appeals from an order granting a new trial which had the effect of reversing the trial court's prior grant of summary judgment in his

favor. Plaintiff and respondent Johnny Shin had sued appellant for negligence as a result of injuries he sustained when appellant's tee shot hit him in the head during a round of golf. The trial court initially granted appellant summary judgment on the ground that the doctrine of primary assumption of risk barred Shin's claim. After reviewing additional authorities, the trial court granted Shin's motion for a new trial, finding that there were triable issues of fact as to whether appellant's conduct in failing to confirm Shin's location when he teed off increased the inherent risks of the sport and, in turn, whether Shin's conduct was comparatively negligent. Appellant challenges the order granting a new trial on both procedural and substantive grounds. Procedurally, he asserts that the new trial order is defective because it fails to identify either the grounds or the reasons for granting a new trial. On the merits, appellant contends that the order cannot stand because the law provides that every golfer assumes the inherent risk of being hit by a golf ball. He also asserts that the new trial could not have been based on his failure to plead assumption of risk as an affirmative defense. We affirm the new trial order. Though the order does not comply with all applicable statutory requirements, we may affirm it if correct on any one of several grounds raised by the motion. The trial court correctly determined that it was an error in law to grant summary judgment, as the law provides that one owes a duty not to increase the inherent risks of the sport of golf, and the undisputed evidence established that appellant's failure to ascertain Shin's whereabouts before he teed off constituted a breach of that duty. Moreover, triable issues of fact remained as to whether Shin knowingly encountered the risk of injury caused by appellant's breach of that duty. Under these circumstances, the primary assumption of risk doctrine did not bar Shin's action.

FACTUAL AND PROCEDURAL BACKGROUND On August 10, 2003, appellant, Shin, Jeffrey Frost and a fourth unidentified man were grouped together to play a round of golf at Rancho Park Golf Course. The fourth man left the group after playing the tenth or eleventh hole. 2

After appellant finished the twelfth hole, he picked up his bag, walked up an embankment to the thirteenth hole and got ready to tee off. He used the lower tee box on the hole. At that time, Shin and Frost were still on the twelfth hole green practicing their putting. Shin then headed to the thirteenth hole while Frost was still on the twelfth hole green. He walked up an embankment about seven yards behind appellant. He saw appellant walk toward the tee box. He stopped on the cart path before the tee box and then got a water bottle out of his bag and checked his phone for messages. In the vicinity of the thirteenth hole, before anyone had begun to tee off, Shin made eye contact with appellant as he stood to the front and left of appellant. Appellant's practice on the tee was to back away from the ball and take one practice swing. When he took his practice swing on the thirteenth hole, he did not know where Shin was. He did not see anyone on the fairway at that time. After his practice swing, he stepped forward and focused on the ball for approximately 15 to 20 seconds until he struck it. Appellant did not know where Shin was when he teed off. After he hit the ball, he looked up to see Shin on the ground approximately 25 to 35 feet away; he was to the left of appellant at about a 40 to 45-degree angle from him toward the upper tee box. Appellant's ball had hit Shin in the head. In May 2004, Shin filed a first amended complaint alleging a single cause of action for negligence. Appellant answered and alleged four affirmative defenses, including assumption of risk which provided in part that "plaintiff was aware of any inherent dangers to plaintiff's person or property while engaged in the recreational activity of skiing and assumed the risk of such danger." Appellant moved for summary judgment in January 2005. He asserted that the doctrine of primary assumption of risk barred Shin's complaint. In support of the motion, he submitted his own declaration and the declaration of golf pro Joe Buttitta, and attached excerpts of Frost's, Shin's and his own deposition. Buttitta opined that "[w]hen teaching someone how to play golf, I instruct him to watch the ball, meaning that once the shot is lined up he should not take his eyes off the golf ball until he hits it. This is how all 3

golfers are taught to play[;] otherwise it would be very difficult to make contact with the ball." Shin opposed the motion, asserting that there was a triable issue of fact as to whether appellant's conduct increased the inherent risk of the game of golf. He submitted his own declaration which--consistent with his deposition testimony-- indicated that he made eye contact with appellant while he was heading toward the thirteenth hole tee box, at some point before appellant took his practice swing. He also submitted the declaration of golf expert Edward Smilow, which stated that the first safety rule in the Rules of Golf published by the United States Golf Association provides: "`Prior to playing a stroke or making a practice swing, the player should ensure that no one is standing close or in a position to be hit by the club, the ball or any stones, pebbles, twigs or the like which may be moved by the stroke or swing.'" Smilow further opined that appellant had not complied with this rule because he had failed to ascertain the whereabouts of Shin before teeing off on the thirteenth hole. Shin also lodged his own deposition transcripts as well as appellant's and Frost's. Following an April 14, 2005 hearing, the trial court granted the motion.1 It reasoned that the doctrine of primary assumption of risk barred Shin's action, since by going out on the golf course Shin assumed the risk of being hit by a ball. Judgment was entered on May 3, 2005. Shin moved for a new trial on May 12, 2005. The motion asserted that appellant had failed to plead assumption of risk as an affirmative defense, that according to California law not previously cited the uncontroverted evidence failed to show that appellant's conduct did not increase the inherent risk of the sport and that out-of-state authority was contrary to the trial court's ruling. Appellant opposed the motion.

With the exception of sustaining an objection to one statement by Shin's expert concerning some unrelated work experience, the trial court overruled all evidentiary objections. 4

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At a hearing in June 2005, the trial court initially rejected Shin's arguments that the answer was defective and that there was any new California law warranting a different result. The trial court further indicated, however, that it had conducted significant out-of-state research and found several cases on point. On the basis of that authority, the court reasoned that "the real issue here I think is whether [appellant] knew of Shin's location in a zone of danger or whether he should have warned of the shot that is coming up--that was coming up which was a drive; and given analysis of those facts, whether that increased the inherent risk of Shin being hit by the golf ball." It also reasoned that the facts seemed to raise several possible contributory negligence issues. The court opined that it would be mistaken to stay with its original ruling and it granted Shin's motion for a new trial. This appeal followed.

DISCUSSION Appellant contends that the order granting a new trial is procedurally defective and contrary to the law. We note at the outset that an order granting a new trial following an order granting summary judgment is appealable, even though the order granting a new trial effectively operates like a nonappealable order denying summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858

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