Watch Your Step – Playing Golf on an Outdoor Course Necessarily Encompasses Risk of Encountering Irregularities in the Ground Surface

On April 27, 2023, the First District Court of Appeal issued an opinion in Walter Wellsfry, et al. v. Ocean Colony Partners, LLC (A165175, April 27, 2023) affirming summary judgment for a golf course owner on the grounds that the injured golfer’s lawsuit was barred by the primary assumption of risk doctrine. In doing so, the Court of Appeal found that outdoor golfers assume the risks associated with the topographical features of the course, including the risk of stepping on an inconspicuous tree root.

Recreational golfer Walter Wellsfry was walking from a tee box back to his golf cart when he allegedly stepped on a small tree root concealed by grass, causing him to fall into his golf cart in immediate pain. The ground consisted of mixed terrain, including a combination of grass, dirt, and sand. The tree root was estimated to be approximately 1.5 inches high by 1.5 inches wide. Believing he may have only sprained an ankle, Wellsfry continued the course and reported the incident to management. He later sued the golf course owner Ocean Colony Partners for negligence, claiming that the tree root was a “hidden obstruction” creating an unreasonable risk of harm to anyone who traversed the area.

Ocean Colony moved for summary judgment based on the primary assumption of risk doctrine. This doctrine operates as a complete bar to recovery on the grounds that a recreation provider owes no duty of care to eliminate risks that are inherent in the given sport. However, even where the primary assumption of risk doctrine applies, the owners and operators of sports venues still owe a duty not to increase the risk inherent in an activity and to take “reasonable steps” to protect safety to the extent it does not alter the nature of the sport.

In its motion for summary judgment, Ocean Colony argued that the risk of stepping on a small tree root was inherent in the sport of golf and thus no duty was owed to Wellsfry to prevent the risk. Ocean Colony presented evidence that imposing a duty to remove or warn of small roots would change the nature of golf courses and the experience of the game itself. Ocean Colony also introduced evidence that it had not received any complaints or reports of injuries at the location where Wellsfry tripped, despite tens and thousands of golfers using the course. In opposition, Plaintiffs presented testimony from an expert in golf course maintenance that because the root was located outside the normal playing area and was “not easily seen,” this was not a risk inherent to playing golf and fell below reasonable golf course maintenance standards. The trial court granted summary judgment for Ocean Colony, finding that the primary assumption of risk doctrine barred the lawsuit in its entirety as Ocean Colony owed no duty of care to prevent Wellsfry from stepping on a tree root on the golf course.

The Court of Appeal affirmed, finding that it is fundamental to the sport of golf that players have to navigate the terrain and natural obstacles of the course. This is especially true given that golf uses non-standardized playing areas, making the unique natural obstacles of any given course features which contribute to the atmosphere and experience of that course. Such obstacles include slopes, mounds, trees, leaves, water, sand, pavement, and yes, even tree roots. In short, the ground surface of a golf course “establishes a significant portion of the challenge and atmosphere of golf and constitutes the interface between the golfer…and nature that is part of the gestalt of golf.”

The Court of Appeal was not persuaded by Plaintiffs’ argument that because the tree itself had been manually removed, there was no reason for golfers to suspect any danger arising from tree roots. Rather, the existence and scope of Ocean Colony’s duty was a purely legal question depending on the nature of the sport in question. The question at issue was whether the risk of stepping on a small tree root was “within the contemplation” of playing golf outdoors, and the Court of Appeal found that it was.

In addressing the significance of expert testimony proffered by Plaintiffs, the Court of Appeal acknowledged that it will always be possible for a plaintiff who suffers a sport injury to obtain expert testimony that the injury would not have occurred if the recreation provider had done something differently. But such testimony does not establish that the provider increased the inherent risks of the sport, nor does it create a triable issue of fact in response to a motion for summary judgment on the primary assumption of risk defense.

This opinion has been certified for publication. It relies on and builds upon the California Supreme Court opinion in Shin v. Ahn (2007) Cal.4th 482, 485, where it was established that the primary assumption of risk doctrine does apply in the context of golf and that “being struck by a carelessly hit ball is an inherent risk of the sport.” Moving forward, it will be an uphill battle for plaintiffs to sue for injuries caused by natural land features in contexts such as golf, where topographical variation is not only expected, but sought-after as a hallmark of the sport.

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May 3, 2023