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Duffy v. Midlothian Country Club





APPEAL from the Circuit Court of Cook County; the Hon. MYRON GOMBERG, Judge, presiding.


Plaintiff appeals from an order granting Midlothian Country Club and Western Golf Association (defendants) motion for summary judgment. On appeal, she contends that (1) the trial court erred in granting summary judgment; (2) the issue of proximate cause of her injuries is one for the jury; and (3) defendants, as a matter of law, are barred from asserting the defense of assumption of risk. We reverse and remand. The pertinent facts follow.

On the morning of June 29, 1973, plaintiff, her son, his friend, and his friend's mother, Audrey Carlson, went to the 1973 Western Golf Association's "Western Open" golf tournament, held at the Midlothian Country Club. This was her first tournament, and she and her party arrived at the club between 9 and 10 a.m. to purchase tickets. Plaintiff and Carlson went to the first tee to watch Arnold Palmer tee off and the boys went off on their own.

After Palmer hit his ball, she and Carlson walked towards the first green. The first fairway ran parallel to the 18th fairway, and they walked between these two fairways, which were roped off. She and Carlson stopped at a concession stand, which was set up between the two fairways, to purchase something to eat. Plaintiff stated that she was watching an unidentified golfer line up a shot toward the first hole, when she was struck. Neither she nor Carlson heard anyone shout "fore" or any other warning before she was hit. The ball was hit from the 18th tee by Dow Finsterwald, also a defendant in this action. Plaintiff has indicated in her deposition that she has lost all sight in her right eye and wears a prosthetic shell over the eye for cosmetic purposes. Plaintiff's deposition further indicated that she was also aware that the area in which she was standing at the time of the incident was located between two fairways.

Plaintiff's complaint alleged that defendants were guilty of one or more of the following acts of negligence:

"(a) Failed to give the plaintiff timely warning of the approaching ball, although they knew or should have known that the Plaintiff was in a place of danger and was likely to be struck by the ball.

(b) Failed to restrict Plaintiff from an area which they knew or should have known was a place of danger.

(c) Failed to provide individuals trained in crowd control and in prevention of injury to spectators.

(d) Failed to provide unobstructed views to the playing area at the location where Plaintiff was standing.

(e) Failed to warn the Plaintiff of the dangerous conditions existing at the location where she was standing."

A further allegation in the complaint stated that "the Defendant MIDLOTHIAN COUNTRY CLUB, failed to exercise due care in the design of the golf course at the location [where Plaintiff] was standing."

Defendants filed a motion for summary judgment on the ground that plaintiff did not have sufficient evidence to support a case of negligence since she did not have sufficient knowledge of the circumstances of the accident. They also asserted that plaintiff assumed the risk and was therefore barred from recovering, in that she was an experienced golfer and had knowledge of, and appreciated the danger of being struck by a golf ball while present on a golf course.

This motion was supported by excerpts from plaintiff's deposition which indicated that she did not know where Finsterwald was at the time of the accident; that at that time she did not know whose ball hit her, nor did she see the ball come toward her. Further, that the ball came from the area between the 10th and 11th fairways (later identified as the eighteenth) and there were no signs which told spectators that they were restricted in certain areas on the grounds. The deposition also stated that plaintiff did see ropes on each side of the concession tent; that she didn't know whether the 18th tee was in her line of vision and that there were some trees in the fairways, but she didn't know their height; neither did she know the distance between the two fairways or how close to the ropes she was at the time of the accident.

Plaintiff's experience as a golfer consisted of playing a nine-hole course in a company league before she was married, and until the time of her injury, she played golf an average of twice a week with friends, or her husband. Plaintiff stated in her deposition that her best score for nine holes ...

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