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06/13/97 GERALD ZURLA v. VICTOR HYDEL

June 13, 1997

GERALD ZURLA, PLAINTIFF-APPELLEE,
v.
VICTOR HYDEL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. 93 L 2502. Honorable Robert Quinn, Judge Presiding.

Released for Publication July 21, 1997.

The Honorable Justice Zwick delivered the opinion of the court. Theis, J., and Quinn, J., concur.

The opinion of the court was delivered by: Zwick

JUSTICE ZWICK delivered the opinion of the court:

Plaintiff, Gerald Zurla, alleged in a single-count complaint that defendant, Victor Hydel, negligently hit a golf ball which struck him in the head as the two men played a round of golf during a weekend trip to Florida. *fn1 Defendant filed a summary judgment motion alleging that plaintiff's allegation of simple negligence should be insufficient under Illinois law which holds participants in "contact sports" to a duty to refrain only from wilful and wanton conduct. The trial court denied defendant's summary judgment motion, but certified the question for our review under Supreme Court Rule 308. 134 Ill. 2d R. 308. We accepted the defendant's petition for leave to appeal and now address as the single issue of whether a golfer, struck and injured by a golf ball hit by another golfer, must plead and prove wilful and wanton misconduct.

The record demonstrates that plaintiff and defendant went from Chicago to Florida with Edward Vrdolyak for a weekend of recreation that included fishing and golf. Plaintiff and Vrdolyak were experienced golfers, but defendant was a novice. The three had played one round of golf at the Lely Resort in Naples, Florida, prior to the occurrence at issue.

During the course of their second game on March 29, 1992, plaintiff, defendant and Vrdolyak teed off on the fourth hole. The fourth hole is a straight par four and defendant's ball was 100 to 130 yards from the tee down the right side of the fairway. Defendant's experience that day indicated his shots had the natural tendency to slice, i.e., to drift from left to right. Both Vrdolyak's shot and plaintiff's shot landed approximately 225 yards from the tee.

The threesome first drove their carts from the tee to defendant's ball. Defendant got out of his cart. Plaintiff and Vrdolyak went on to look for their tee shots. Plaintiff and Vrdolyak told Hydel to take a club and wait until they returned before he hit his second shot. Vrdolyak and plaintiff then drove their carts to the location of their tee shots. Plaintiff parked his cart next to his ball.

A slow-moving foursome was on the green ahead. Defendant observed them as they left the green. As plaintiff was watching the foursome move on to the fifth hole, he walked up to the ridge of the bunker to get a clear view of the fourth green. At this moment, defendant hit his shot thinking plaintiff and Vrdolyak were safely positioned away from the green. Defendant's shot, however, did not go from left to right; instead, it flew directly at plaintiff. Plaintiff simultaneously turned his back to the green and began walking back to his cart. Defendant's shot then struck plaintiff on the right temple causing injury.

We begin our analysis of the issue presented by noting that summary judgment is a drastic remedy which is properly granted only where the movant's right to it is clear and free from doubt. Vicorp Restaurants v. Corinco Insulating Co., 222 Ill. App. 3d 518, 584 N.E.2d 229, 165 Ill. Dec. 50 (1991). The purpose of the summary judgment procedure is to determine whether there are any genuine issues of material facts between the parties. Vallejo v. Mercado, 220 Ill. App. 3d 1, 580 N.E.2d 655, 162 Ill. Dec. 692 (1991). Summary judgment should be granted only if the pleading, depositions, admissions and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Dash Messenger Service, Inc. v. Hartford Insurance Co., 221 Ill. App. 3d 1007, 582 N.E.2d 1257, 164 Ill. Dec. 313 (1991). When the plaintiff's complaint fails to allege a legally recognized breach of duty, the trial court may properly grant summary judgment. See e.g., Landrum v. Gonzalez, 257 Ill. App. 3d 942, 629 N.E.2d 710, 196 Ill. Dec. 165 (1994).

The issue of the proper duty of care as between golfers is one of first impression in Illinois. Defendant argues that Illinois law should require that a golfer hit by a stray ball plead and prove wilful and wanton misconduct against the defendant. He argues that an allegation of simple negligence should be insufficient to support a cause of action in cases involving golf ball injuries because the public policy of Illinois is to promote athletic endeavors such as golf. Plaintiff responds that the proper standard of care should be the same here as in any ordinary negligence case, i.e., to exercise reasonable and ordinary care for the safety of other golfers.

An Illinois court of review first examined the standard of care owed between participants in athletic competitions in Nabozny v. Barnhill, 31 Ill. App. 3d 212, 334 N.E.2d 258 (1975). In Nabozny, the plaintiff was a goalie in a soccer match. During play plaintiff caught the ball and held it to his chest while on one knee in the penalty area in front of the goal. As plaintiff held the ball, the defendant kicked plaintiff in the head. Plaintiff pleaded and went to jury trial on a simple negligence theory. At the close of the plaintiff's case, however, the trial court directed a verdict for the defendant, apparently finding that the parties owed no duty toward one another because of their participation at the time of injury in an athletic competition. Nabozny, 31 Ill. App. 3d at 213. Plaintiff appealed, arguing that the entry of the directed verdict was improper because the evidence presented at trial showed defendant had breached his duty to refrain from negligent conduct. The appellate court noted that a number of other jurisdictions prohibited recovery for an injury sustained in an athletic competition for reasons of public policy. Nabozny, 31 Ill. App. 3d at 214-15. After reviewing the need "to control a new field of personal injury litigation" involving "athletes *** engaged in an athletic competition," the appellate court adopted neither the plaintiff's negligence theory nor defendant's no-duty claim. Instead, the court stated:

"It is our opinion that a player is liable for injury in a tort action if his conduct is such that it is either deliberate, wilful or with a reckless disregard for the safety of the other player so as to cause injury to that player." Nabozny, 31 Ill. App. 3d at 215.

The appellate court reversed and remanded the case for a new trial consistent with the "deliberate, wilful and with ...


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