UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2502
TIM R. MARTINS,
Plaintiff - Appellant,
versus
KEMPER SPORTS MANAGEMENT, INCORPORATED,
Defendant - Appellee,
and
BECHTEL CORPORATION,
Defendant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (CA-03-2109-WMN)
Submitted: January 27, 2006 Decided: February 28, 2006
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David L. Kwass, SALTZ, MONGELUZZI, BARRETT & BENDESKY,
Philadelphia, Pennsylvania, for Appellant. Michael P. Chervenak,
HARTEL, KANE, DESANTIS, MACDONALD & HOWIE, L.L.P., Greenbelt,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Tim R. Martins claims that Kemper Sports Management, Inc.
(“Kemper”) breached its duty of care by not installing proper
safety barriers between tee boxes at Holly Hills Country Club
(“Holly Hills”) in Maryland. We have reviewed the record and find
no reversible error.
Martins claims the district court erred when it granted
Kemper’s motion for summary judgment.1 This court reviews de novo
a district court’s order granting summary judgment. Price v.
Thompson, 380 F.3d 209, 212 (4th Cir. 2004).
Under Maryland law, a cause of action in negligence must
demonstrate “(1) that the defendant was under a duty to protect the
plaintiff from injury, (2) that the defendant breached that duty,
(3) that the plaintiff suffered actual injury or loss, and (4) that
the loss or injury proximately resulted from the defendant's breach
of the duty.” Rhaney v. University of Maryland Eastern Shore, 880
A.2d 357, 363-64 (Md. 2005).
Martins was a business invitee on Kemper’s business
premises. In Maryland, a business owner owes a business invitee “a
duty to use reasonable and ordinary care to keep the premises safe
and to protect the invitee from injury caused by an unreasonable
risk which the invitee, by exercising ordinary care for his own
1
Martins did not appeal the district court’s order granting
summary judgment for Bechtel Corporation.
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safety, will not discover.” Southland Corporation v. Griffith, 633
A.2d 84, 91 (Md. Ct. App. 1993).
Martins claims that Kemper breached its duty because it
did not install plastic barriers that could have prevented his
injury. Martins and Kemper agree that there is no industry
standard or law requiring safety barriers on driving ranges.
Kemper’s experts testified that the majority of public driving
ranges do not have plastic barriers and at private country clubs
like Holy Hills barriers are extremely rare. It is not contested
that Kemper foresaw the possibility of one golfer hitting another
golfer on the driving range. However, simply because Kemper did
not install plastic barriers does not mean it did not take
reasonable care to protect golfers on its premises. Indeed, Kemper
installed a barrier that was more protective than the majority of
other ranges. Because Martins failed to establish that Kemper
breached its duty to take reasonable and ordinary care to protect
its business invitees, the district court did not err in granting
Kemper’s summary judgment motion.2
2
We do not address Martins’ claim that Kemper assumed a higher
duty of care by installing the barriers as this claim was raised
for the first time on appeal. See Muth v. United States, 1 F.3d
246, 250 (4th Cir. 1993) (holding that issues raised for the first
time on appeal are generally waived absent exceptional
circumstances).
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Accordingly, we affirm the district court’s order
granting Kemper’s motion for summary judgment. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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