Preview:

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________

Rockingham No. 2010-007

PAUL F. SANCHEZ, III v. CANDIA WOODS GOLF LINKS Argued: September 15, 2010 Opinion Issued: November 24, 2010 Backus, Meyer & Branch, LLP, of Manchester (Barry M. Scotch on the brief and orally), for the plaintiff.

Wiggin & Nourie, P.A., of Manchester (Doreen F. Connor and Gary M. Burt on the brief, and Mr. Burt orally), for the defendant. CONBOY, J. The plaintiff, Paul F. Sanchez, III, appeals an order of the Superior Court (McHugh, J.) granting summary judgment in favor of the defendant, Candia Woods Golf Links (Candia Woods). We affirm. The following facts are undisputed. On September 4, 2006, Sanchez was injured while playing golf at Candia Woods. He had played golf several times a year for over twenty-five years and had previously played the Candia Woods course several times. Prior to Sanchez's injury, Candia Woods installed yardage markers located in the middle of the fairways. They were

approximately four feet in height, four inches by four inches square, and made of a dense plastic composite material. Although the markers were removable, Sanchez testified during his deposition that he was not aware of that fact. He also stated that it was his practice, shared by other social golfers, to occasionally bend the rules to either take a second shot or kick his ball out from behind an obstacle. While playing the eleventh hole, Sanchez found himself approximately 17-20 yards in front of the 150-yard marker. He took note of the marker and intended to hit to the right of it, but the ball ricocheted off the marker and struck him in the right eye, causing serious injury. Sanchez filed this negligence action against Candia Woods in January 2009. Candia Woods subsequently moved for summary judgment, asserting that it did not owe Sanchez any duty of care against ordinary risks, such as "errant balls," that are inherent in the game of golf and assumed in the ordinary course of play. Relying on Allen v. Dover Co-Recreational Softball League, 148 N.H. 407 (2002), and Werne v. Executive Women's Golf Association, 158 N.H. 373 (2009), the trial court granted summary judgment to Candia Woods. Sanchez raises two issues on appeal. First, he argues that Candia Woods breached a non-delegable duty to provide a safe environment for its patrons, and it was error for the trial court to find as a matter of law that the placement of the yardage markers was not inherently dangerous. Second, he alleges that the trial court erred in granting summary judgment before the expert disclosure deadline had passed, even though he had informed the court he intended to disclose an expert witness to support his claim. "In reviewing the trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party." Big League Entm't v. Brox Indus., 149 N.H. 480, 482 (2003). "If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment." Id. "We review the trial's court's application of the law to the facts de novo." Id. We agree with the trial court that the two cases upon which it relied set forth the applicable analytical principles. In Allen, the plaintiff was hit in the head with a ball during a recreational softball tournament and sued several organizations associated with the tournament. She argued that the defendants were negligent in allowing the game to proceed without taking all reasonable safety precautions, including allowing players to bat without batting helmets, not maintaining a safe ratio of male to female players, permitting the use of a smaller than usual ball, and not warning players of the risk of injury. We considered various assumption of the risk theories and applied the "primary

2

implied assumption of risk" doctrine to the plaintiff's claim. This doctrine applies when "a plaintiff voluntarily and reasonably enters into some relation with a defendant, which the plaintiff reasonably knows involves certain obvious risks such that a defendant has no duty to protect the plaintiff against injury caused by those risks." Allen, 148 N.H. at 414. Thus, the doctrine of primary implied assumption of the risk does not immunize a defendant from liability simply because a plaintiff voluntarily encounters a risk caused by that defendant's negligence. "When, however, a defendant owes no duty to a plaintiff in light of a particular risk, the defendant cannot be held accountable to a plaintiff who is injured upon the plaintiff's voluntary encounter with that risk." Id. at 416. We affirmed the trial court's dismissal of the plaintiff's claims, concluding that "when [the plaintiff] voluntarily played softball

Download 2010-007, Paul F. Sanchez, III v. Candia Woods Golf Links.pdf

New Hampshire Law