APPEAL from the Appellate Court for the First District; heard
in that court on appeal from the circuit court of Cook County;
the Hon. DAVID A. CANEL, Judge, presiding.
MR. CHIEF JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
Plaintiff, Jamee H. Barrett, sued for personal injuries sustained on a golf course when struck by a ball hit by defendant Edward Fritz. In that negligence action the circuit court of Cook County instructed the jury on assumption of risk, and entered judgment on the jury verdict in favor of defendant. The appellate court, on plaintiff's appeal, reversed and remanded the cause for a new trial (98 Ill. App.2d 75), and we granted defendant leave to appeal.
The issues are whether the defense of assumption of risk is available in a negligence action where there is no employment or contractual relationship between the parties, and whether that question was properly preserved for appeal. There is no substantial dispute on the facts, which are amply set forth in the appellate court opinion, and will be detailed only insofar as necessary to the disposition of the issues.
On September 3, 1956, a clear day with a strong wind, plaintiff was playing golf at the Edgewater golf course in a foursome with her husband and another couple in a husband and wife tournament. That 18-hole course is very tight and relatively short, with narrow fairways. Plaintiff and her group finished the 17th hole, walked to the 18th tee, which is about 40 yards from the 17th green and 155 to 160 yards from the 17th tee. Before leaving the 17th green, plaintiff looked back and saw no one on that tee. As plaintiff was standing by the 18th tee ball washer, while another member of her foursome teed off, defendant and two others arrived on the 17th tee. Defendant and anyone driving off that 17th tee would have a clear view of plaintiff. Defendant saw the foursome on the 18th tee, and teed off using a number 4 wood on the 135-yard hole. Defendant testified he lost sight of the ball while it was rising, and saw it again as it entered the trees near the 18th tee, where plaintiff was standing. Another member of defendant's threesome testified he saw the ball from the time defendant drove it, and that it went high and veered left directly toward the area where plaintiff was. At no time did defendant or anyone of his group call "fore", or give any warning for golfers in the area. Plaintiff was struck on the head by defendant's golf ball, knocked unconscious, and suffered brain injury necessitating major operations.
The trial court gave the jury the following controverted peremptory instruction concerning the doctrine of assumption of risk, which was a modified version of Illinois Pattern Instructions 13.01 and 21.03:
"The Plaintiff has the burden of proving each of the following propositions:
First, that the plaintiff before and at the time of the occurrence was using ordinary care for her own safety;
Second, that the defendant acted, or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent;
Third, that the plaintiff was injured;
Fourth, that the negligence of the defendant was a proximate cause of the injury to the plaintiff.
In this case defendant has asserted the affirmative defense that the plaintiff assumed the risk of injury by participating in the activities which exposed her to the risk of the injury. To prove the defense, the defendant has the burden of proving each of the following propositions:
First, that the plaintiff was to participate in the activities which exposed her to the injuries complained of.
Second, that the dangers involved were the dangers which ordinarily accompany the activities contemplated in participating in the game of golf.
Third, that the plaintiff knew, or by the exercise of ordinary care should have known, these dangers existed and realized the possibility of injury from ...