Farfour v. Mimosa Golf Club, Inc. , 240 N.C. 159 ( 1954 )

81 S.E.2d 375 (1954) 240 N.C. 159

FARFOUR
v.
MIMOSA GOLF CLUB, Inc. et al.

No. 305.

Supreme Court of North Carolina.

April 28, 1954.

Edw. M. Hairfield, Morganton, for plaintiff-appellant.

Mull, Patton & Craven, Morganton, for defendants-appellees.

WINBORNE, Justice.

The principal assignment of error presented on this appeal is based upon exception to the ruling of the trial court in granting defendants' motion for judgment as of nonsuit.

While historians tell us that the game of golf was played in Scotland more than five hundred years ago, and while there have been actions at law to recover damages for injuries sustained by persons on or near golf courses when hit by golf balls in flight when driven in play, the attorneys for the parties to this appeal fail to point out, and our own search of digests and annotations of decided cases fail to reveal, any case where a patron of a golf course had sued to recover damages for injury sustained as result of stepping into any kind of hole on or about a golf course.

However, a quotation from the Scottish court, found in decisions in the United States, may provide a thoughtful reason. Campion v. Chicago Landscape Co., 295 Ill.App. 225, 14 N.E.2d 879. The quotation purports to come from Andrew v. Stevenson, 13 Scot.L.T. 581. It reads: "The risks of accident in golf are such, whether from those playing behind or from those meeting the player on crossing his line of play, that in my opinion no one is entitled to take part in a game without paying any attention to what is going on around and near him, and that when he receives an injury which by a little care and diligence on his part might have been escaped, he should not be entitled to claim damages for that injury."

But be that as it may, guidance may be had in our own decisions and in general principles of law in respect to the duty and liability of an owner of a place of amusement to patrons thereof, and in respect to duty of a patron regarding his own safety.

As to the owner, the general rule is that he is not an insurer of the safety of patrons, but he owes to them only what, under particular circumstances, is "ordinary" or "reasonable" care. See Annotation 22 A.L.R. 610, citing among other cases, Hallyburton v. Burke County Fair Ass'n, 119 N.C. 526, 26 S.E. 114, 38 L.R.A. 156, and Smith v. Cumberland Agr. Society, 163 N.C. 346, 79 S.E. 632, Ann.Cas. 1915B, 544. See also Everett v. Goodwin, 201 N.C. 734, 161 S.E. 316; Hiatt v. Ritter, 223 N.C. 262, 25 S.E.2d 756; Patterson v. Lexington, 229 N.C. 637, 50 S.E.2d 900; Revis v. Orr, 234 N.C. 158, 66 S.E.2d 652, 28 A.L.R. 2d 609, and cases cited.

In Smith v. Cumberland Agricultural Society, supra [163 N.C. 346, 79 S.E. 633], the Court quotes this as the rule of liability: "``The owner of a place of entertainment is charged with an affirmative positive obligation to know that the premises are safe for the public use and to furnish adequate appliances for the prevention of injuries which might be anticipated from the nature of the performance, and he impliedly warrants the premises to be reasonably safe for the purpose for which they are designed.'" See 38 Cyc. 268. To like effect is the decision in Hiatt v. Ritter, supra.

And in Everett v. Goodwin, supra [201 N.C. 734, 161 S.E. 318], Brogden, J., for the Court, wrote that the duty imposed by law upon the owner of a golf course "to exercise ordinary care in promulgating reasonable rules for the protection of persons who rightfully use the course, and furthermore, to exercise ordinary care in seeing that the rules so promulgated for the protection of players are enforced. The owner of a golf course is not an insurer, nor is such owner liable in damages for mishaps, accidents, and misadventures not due to negligence."

Moreover, in Patterson v. Lexington, supra [229 N.C. 637, 50 S.E.2d 901], an action in which plaintiff sought to recover damages sustained by her while attending a baseball game in the park owned by defendant city and used by defendant Baseball Club as result of a fall when she stepped in a hole on an embankment where she chose to sit, this Court in opinion by Devin, J., later C. J., had this to say: "Baseball is an outdoor game. Those who operate a park appropriate for playing this game for the entertainment of spectators, as shown by the evidence in this case, would not be expected to maintain the grass-covered slopes of an embankment on which some spectators chose to sit entirely free from roughness or unevenness or slight depressions. Defendants were not insurers of the safety of those who entered their park but were only held to the obligation of exercising due care to prevent injury which reasonably could have been foreseen and to give warning of hidden perils or unsafe conditions ascertainable by reasonable inspection", citing cases.

In the light of these principles, applied to case in hand, the defendants owed the duty to plaintiff, and those who for pay enjoyed the privilege of playing golf on the Mimosa course to exercise ordinary care to see that the course is maintained in a reasonably safe condition for the purpose for which it is designed, that is, for playing golf.

The question then arises as to whether, under the evidence in this case, the place where the water hole here involved is located is a part of the course designed for the playing of golf.

Turning to a glossary of technical terms used in the game of golf found in Encyclopedia Britannica, Vol. 10, 14th Ed., p. 503, the "course" is "the terrain over which the game is played. All ground on which play is permitted, including fairway, rough, hazards and putting greens".

"Fairway" is "the expanse of ground, extending in whole or in part from the tee to the putting green, especially prepared for play with excellent turf on which the grass is kept cut".

"Rough" is "the ground to left and right of the fairway; also at times intervening between the tee and fairway, on which vegetation is allowed to grow without being cut".

"Hazard" is "the limited space or area in which the privileges of play are restricted, including bunkers, water courses, ponds, sand, etc., also recognized roadways and path".

"Green" is the "putting green" around the holes. "The tee", also termed "teeing ground" is "the place marked as the limit, outside of which it is not permitted to drive the ball off".

In the Encyclopedia Americana, Vol. 13, at page 37, referring to "golf", it is said: "The object of the game is to knock the ball from an established starting point to a designated finishing point in the fewest possible strokes. Golf is played on a course or links, which consist usually of nine or eighteen holes. A hole, designating a unit of play, consists of a starting point, or teeing ground, a finishing place, or putting green, and the intervening area. Rules of the game recognize four-part division of the course: (1) Teeing ground, (2) through the green, (3) hazards, and (4) putting green. Markers placed on an area especially prepared for teeing, determine the limits of the teeing ground. Putting green is also a specially prepared area, in the surface of which is cut a hole four and one-fourth inches in diameter. The area within a radius of the hole of 60 feet, except hazards, is putting green. Hazards are ditches, creeks, ponds, roads and bunkers. A bunker, which is an artificial hazard, is a hole or depression * * * and is usually covered with sand. Bunkers are also called sand traps. Through the green is the whole area between the teeing ground and the putting green, except hazards. It includes both fairway and rough. The former applies to that part of the area on which the turf is specially prepared for play. The balance, except hazards, is rough."

And the New Funk & Wagnall's Encyclopedia, p. 5870, states: "Golf, an outdoor game, played on a stretch of ground known as a course or links by two or more players, each player using a small, hard, white ball which he propels by means of specially designed clubs. The object of the game is to drive the ball around the course, using as few strokes as possible, and playing successively from the beginning or ``tee' to the end or ``cup' of each of the eighteen sections, known as ``holes' into which the course is divided * * * The players begin at the first ``tee', a level area of turf or sand, generally raised slightly above the surrounding terrain, and each player successively drives his ball onto the ``fairway' or main part of the course, a strip of land on which the grass has been cut to provide a good lie for the ball. On either side of the fairway is an area left in its wild or natural state * * *. At the far end of the fairway is the ``green', an area of closely cropped grass surrounding the cup * * *."

Similar definitions to those in the encyclopedias may be found in Webster's International Dictionary.

Hence, in the light of these wellestablished and generally recognized definitions of golf terms, and of the rules of the game of golf, applied to the evidence offered by plaintiff, as shown in the case on appeal, it appears that the place where the water hole here involved was located is no part of the terrain designed for playing the game of golf. Too, it was beyond the area of the ball washer. And elsewhere there was a private road and path leading from the ninth green to the tenth tee. Therefore, it would seem, and the Court holds that defendants, the owner and operator of the golf course, were under no duty to anticipate that patrons would travel in the area of the water hole and to guard against possible injury to them by reason of the hole.

But in any event, the evidence clearly indicates that plaintiff was negligent, and that his negligence, at least, contributed to the injury and damage of which he complains. He chose not to follow the road and path where players usually walk in going from the ninth green to the tenth tee. Rather, he chose to take a short cut from the ninth green to the tenth tee, and enroute to park his caddie cart at a place in high grass. This necessitated his return to the cart, and that he take off from that point rather than from the front of the tee. Moreover, his own statement clearly indicates that he was intent upon locating the spot at which his ball was last seen. He says: "I was looking where the ball was gone." "Before I got hold of the cart I was looking where the ball went, first", that he "grabbed" the cart, turned and started with his right foot and stepped into the hole. Then it was that he first glanced into the hole.

Thus, in either aspect of the case, judgment as of nonsuit was properly entered.

Affirmed.

ERVIN, J., dissents.