FILED
Nov 15 2016, 5:37 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Karl N. Truman Rodney L. Scott
Marsha A. Dailey Eric T. Eberwine
Jeffersonville, Indiana Waters Tyler Hofmann & Scott, LLC
New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David D. Wooten, November 15, 2016
Appellant-Plaintiff, Court of Appeals Case No.
31A04-1605-CT-1037
v. Appeal from the Harrison Superior
Court
Caesars Riverboat Casino, LLC The Honorable Larry Medlock,
Special Judge
and Bernard J. Chamernik,
Cause No. 31D01-1311-CT-39
Appellees-Plaintiffs.
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Plaintiff, David D. Wooten (Wooten), appeals the trial court’s
summary judgment in favor of Appellee-Defendant, 1 Bernard J. Chamernik
(Chamernik), which concluded, as a matter of law, that Chamernik’s actions
fell within the range of ordinary behavior of participants in the sport of golf.
[2] We affirm.
ISSUE
[3] Wooten raises two issues on appeal, which we consolidate and restate as:
Whether the trial court properly concluded that Chamernik’s conduct of driving
the golf cart during a golf scramble fell within the ordinary range of behavior of
participants in golf, as interpreted by our supreme court in Pfenning v. Lineman,
947 N.E.2d 392 (Ind. 2011).
FACTS AND PROCEDURAL HISTORY
[4] This case stems from an incident that occurred between two participants at a
VIP golf scramble at Chariot Run Golf Course, in Harrison County, Indiana.
On August 19, 2012, Wooten and Chamernik were invited to participate in a
golf tournament sponsored by Caesars Riverboat Casino (Caesars) at its golf
course, Chariot Run Golf Course (Chariot Run). According to the event rules,
1
The caption on this cause also lists Caesars Riverboat Casino, LLC (Caesars) as Appellee-Defendant.
However, the case against Caesars was settled between the parties and accordingly, Caesars is no longer a
party on appeal.
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the golf scramble consisted of teams of four golfers, with the team playing the
best ball for each shot. Caesars paired Wooten, Chamernik, James Malles
(Malles), and James North (North), none of whom knew each other, as partners
for the scramble. Wooten was the only one who had previously played at
Chariot Run and who was familiar with its layout. Caesars provided all teams
with golf carts—Wooten and Malles rode in one golf cart and Chamernik and
North rode in a second golf cart behind them. Although Chariot Run features
paved asphalt paths for the golf carts, participants were allowed to “drive the
carts on the fairway” and to pull the “cart up close to where [the] ball was and
hit it.” (Appellant’s App. p. 71).
[5] Wooten’s team started the scramble at the twelfth hole. The fourteenth hole
was a blind shot from the tee, after which Malles and Wooten rode ahead in
their cart on the cart path. Chamernik followed behind, while looking for his
ball on the fairway. Malles stopped the golf cart on the path near the green on
the downward slope of a hill. Wooten was “leaning up to get out of the cart”
when it was hit from behind by Chamernik “at a low rate of speed.”
(Appellant’s App. pp. 76, 141). The impact of the collision “threw [Wooten]
backwards,” but he did not leave his seat and was not otherwise thrown out of
the golf cart. (Appellant’s App. p. 83). Wooten’s neck “snapped backwards”
and started “bothering” him, and his ears started ringing. (Appellant’s App. p.
84). Wooten “sat in the cart for several minutes.” (Appellant’s App. p. 84).
He took some over the counter pain reliever and continued to play. There was
no damage to either golf cart as a result of the incident.
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[6] After completing the play on the eighteenth hole, Malles drove Wooten to the
clubhouse where Wooten informed course attendants about the accident.
Malles and Wooten did not enter the clubhouse but instead waited in their golf
cart for the arrival of the EMTs, while parked under a canopy outside. By this
time, Wooten was also experiencing blurred vision. After examining Wooten,
the EMTs diagnosed him with whiplash and cleared him to play without any
further treatment. Wooten participated in the remainder of the tournament,
with his team winning first place. Because of continuing pain, Wooten checked
himself into the hospital on August 24, 2012, where he was diagnosed with a
neck sprain and strain.
[7] On November 20, 2013, Wooten filed his Complaint sounding in negligence
against Caesars, Chamernik, and Malles. Malles was subsequently dismissed
from the cause on February 24, 2016, and Wooten settled with Caesars. On
February 26, 2016, Chamernik filed his motion for summary judgment,
memorandum in support thereof, and designation of evidence. Wooten filed a
reply on March 14, 2016. On April 1, 2016, the trial court conducted a hearing
on Chamernik’s summary judgment motion, which was summarily granted on
April 15, 2016.
[8] Wooten now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
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[9] Summary judgment is appropriate only when there are no genuine issues of
material fact and the moving party is entitled to a judgment as a matter of law.
Ind. Trial Rule 56(C). “A fact is material if its resolution would affect the
outcome of the case, and an issue is genuine if a trier of fact is required to
resolve the parties’ differing accounts of the truth . . . , or if the undisputed facts
support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756,
761 (Ind. 2009).
[10] In reviewing a trial court’s ruling on summary judgment, this court stands in the
shoes of the trial court, applying the same standards in deciding whether to
affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,
891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we
must determine whether there is a genuine issue of material fact and whether
the trial court has correctly applied the law. Id. at 607-08. In doing so, we
consider all of the designated evidence in the light most favorable to the non-
moving party. Id. at 608. The party appealing the grant of summary judgment
has the burden of persuading this court that the trial court’s ruling was
improper. Id. When the defendant is the moving party, the defendant must
show that the undisputed facts negate at least one element of the plaintiff’s
cause of action or that the defendant has a factually unchallenged affirmative
defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary
judgment must be reversed if the record discloses an incorrect application of the
law to the facts. Id.
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[11] We observe that in the present case, the trial court did not enter findings of fact
and conclusions of law in support of its judgment. Special findings are not
required in summary judgment proceedings and are not binding on appeal.
AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.
App. 2004). However, such findings offer this court valuable insight into the
trial court’s rationale for its judgment and facilitate appellate review. Id.
II. Analysis
[12] Wooten contends that the trial court erred when it granted summary judgment
to Chamernik on Wooten’s negligence Complaint. In particular, Wooten
asserts that the designated evidence establishes that Chamernik’s action during
the golf game was outside the range of ordinary behavior of participants in golf.
[13] In order to prevail on a claim of negligence, a plaintiff is required to prove: (1)
a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the
defendant; and (3) an injury to the plaintiff proximately caused by the breach.”
Peters v. Forster, 804 N.E.2d 736, 738 (Ind. 2004). In negligence cases, summary
judgment is “rarely appropriate.” Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind.
2004). “This is because negligence cases are particularly fact sensitive and are
governed by a standard of the objective reasonable person—once best applied
by a jury after hearing all of the evidence.” Id. Nevertheless, a defendant is
entitled to judgment as a matter of law when the undisputed material facts
negate at least one element of the plaintiff’s claim. Id. at 385.
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[14] The duty of care owed by participants in athletic events was recently addressed
by our supreme court in its pivotal opinion of Pfenning v. Lineman, 947 N.E.2d
392 (Ind. 2011), which settled Indiana case law’s diverse approaches to liability
for sport injuries. In Pfenning, Cassie Pfenning was injured by a golf ball at a
golf outing when she was sixteen years old. Id. at 396. At the time of the
incident, Pfenning drove a beverage cart and after making several trips around
the golf course “was suddenly struck in the mouth by a golf ball while driving
the beverage cart on the cart path approaching the eighteenth hole’s tee pad
from its green.” Id. at 397. The ball was a low drive from the sixteenth tee
approximately eighty yards away. Id. The golfer’s drive traveled straight for
approximately sixty to seventy yards and then severely hooked to the left. Id.
The golfer noticed the roof of another cart in the direction of the shot and
shouted “fore.” Id. But neither the plaintiff nor her beverage-serving
companion heard anyone shout “fore.” Id. After hearing a faint yelp, the
golfer ran in the direction of the errant ball and discovered the plaintiff with
injuries to her mouth, jaw, and teeth. Id.
[15] Pfenning brought an action against Lineman, the golfer who hit the ball that
struck her. Id. at 396. Lineman sought summary judgment on the ground that
he could not be held liable under a negligence theory because the plaintiff was a
co-participant in the sporting event, and her injuries resulted from an inherent
risk of the sport. Id. at 398. The trial court granted summary judgment in favor
of the defendant. Id. at 396. On appeal, our supreme court “reject[ed] the
concept that a participant in a sporting event owes no duty of care to protect
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others from inherent risks of the sport,” and adopted “instead the view that
summary judgment is proper when the conduct of a sports participant is within
the range of ordinary behavior of participants in the sport and therefore is
reasonable as a matter of law.” Id. at 396.
[16] The supreme court held:
We conclude that sound judicial policy can be achieved within
the framework of existing Indiana statutory law and
jurisprudence. As noted previously, there are three principal
elements in a claim for negligence: duty, breach of duty, and a
proximately caused injury. When there is no genuine issue of
material fact and any one of these elements is clearly absent,
summary judgment is appropriate. But rather than focusing
upon the inherent risks of a sport as a basis for finding no duty,
which violates Indiana statutory and decisional law, the same
policy objectives can be achieved without inconsistency with
statutory and case law by looking to the element of breach of
duty which is determined by the reasonableness under the
circumstances of the actions of the alleged tortfeasor. Breach of
duty usually involves an evaluation of reasonableness and thus is
usually a question to be determined by the finder of fact in
negligence cases. But in cases involving sports injuries, and in
such cases only, we conclude that a limited new rule should
apply acknowledging that reasonableness may be found by the
court as a matter of law. As noted above, the sports participant
engages in physical activity that is often inexact and imprecise
and done in close proximity to others, thus creating an enhanced
possibility of injury to others. The general nature of the conduct
reasonable and appropriate for a participant in a particular
sporting activity is usually commonly understood and subject to
ascertainment as a matter of law. []
We hold that, in negligence claims against a participant in sports
activity, if the conduct of such participant is within the range of
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ordinary behavior of participants in the sport, the conduct is
reasonable and does not constitute a breach of duty.
In any sporting activity, however, a participant’s particular
conduct may exceed the ambit of such reasonableness as a matter
of law if the participant either intentionally caused injury or
engaged in reckless conduct. Such intentional or reckless
conduct may be found to be a breach of duty.
Id. at 403-04 (internal references and footnote omitted). Turning to the facts
before it, the Pfenning court found that “hitting an errant drive” and “a golfer’s
yelling ‘fore’ or failure to do so, and the manner of doing so,” fell within the
range of ordinary behavior for golfers. Id. at 404.
[17] Following Pfenning, this court issued Welch v. Young, 950 N.E.2d 1283 (Ind. Ct.
App. 2011), which addressed the issue whether a batter’s practice swings were
within the range of ordinary behavior of participants in baseball. Welch, a little
league “team mom,” was injured when a young batter was warming up with
practice swings outside the dugout. Id. at 1285. The bat hit Welch’s knee. Id.
Granting summary judgment for the batter, the trial court concluded that, as a
“team mom,” Welch was a participant who “incurred the risk of injury when
she stood in the area between the dugout and the opening in the fence.” Id. at
1285-86. Therefore, Welch’s injury was “due to risks inherent in the sporting
event[.]” Id. at 1286.
[18] Applying the new guidelines for sports injuries in a negligence action, the Welch
court noted on appeal that “[a]fter Pfenning, then, the analysis of an injury like
that before us is based not on the status of the plaintiff as a participant or
spectator, or her incurrence of risk. Rather, the analysis should address
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whether the conduct of the defendant is within the range of ordinary behavior
of participants in the sport.” Id. at 1289. Because our supreme court “offered
little guidance as to the meaning of its new rule,” the court looked at “other
courts for helpful insights.” Id. As such, the Welch court was mindful that
“physical contact is an inherent or integral part of the game in many sports.
The degree of physical contact allowed varies from sport to sport and even from
one group of players to another.” Id. (citing Crawn v. Campo, 643 A.2d 600, 605
(N.J. 1994)). Guided by the New Hampshire Supreme Court, the Welch court
noted a number of factors that may help determine the
reasonableness of behavior by participants, sponsors, and
organizers of recreational athletics: (1) the nature of the sport
involved; (2) the type of contest, i.e., amateur, high school, little
league, pick-up, etc.; (3) the ages, physical characteristics, and
skills of the participants; (4) the type of equipment involved; and
(5) the rules, customs, and practices of the sport, including the
types of contact and the level of violence generally accepted.
Id. (citing Allen v. Dover Co-Recreational Softball League, 807 A.2d 1274, 1285-86
(N.H. 2002)). Upon appellate review, the decision of the trial court was
reversed, as the court was “faced with factual issues about ‘the conduct of [the]
participant’ that preclude[d] our determination whether, as a matter of law, his
conduct was ‘within the range of ordinary behavior of participants in the
sport.’” Id. (citing Pfenning, 947 N.E.2d at 404). Specifically, we noted the
factual issues as to whether the injury took place on the field or outside the
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playing area, and whether the game was underway or had not yet started. Id. at
1292. 2
[19] Focusing on the designated evidence, Wooten contends that “[c]rashing a golf
cart into another golf cart is not within the range of ordinary behavior.”
(Appellant’s Br. p. 8). He maintains that because “golf carts are not necessary
for playing the game of golf[,] it cannot be said that golf-cart activities are
ordinary behavior or are an inherent risk in the game of golf.” (Appellant’s Br.
p. 8).
[20] As the sport gained in popularity within the last couple of years, the use of golf
carts in golf outings has become ubiquitous and a rather mundane occurrence
on the fairway because walking “would just slow things up.” (Appellant’s App.
p. 134). As recognized by Justice Stevens in PGA Tour, Inc. v. Martin, 532 U.S.
661, 683, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001):
As an initial matter, we observe that the use of carts is not itself
inconsistent with the fundamental character of the game of golf. From
early on, the essence of the game has been shotmaking—using clubs to
cause a ball to progress from the teeing ground to a hole some distance
away with as few strokes as possible. . . . Originally, so few clubs were
used that each player could carry them without a bag. Then came golf
bags, caddies, carts that were pulled by hand, and eventually
motorized carts that carried players as well as clubs. Golf carts started
appearing with increasing regularity on American golf courses in the
1950’s. Today they are everywhere. And they are encouraged. For
one thing, they often speed up play, and for another, they are great
2
The most recent pronouncement in this area of law is Megenity v. Dunn, 55 N.E.3d 367 (Ind. Ct. App. 2016),
which was granted transfer by our supreme court on September 1, 2016.
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revenue producers. There is nothing in the Rules of Golf that either
forbids the use of carts or penalizes a player for using a cart. That set
of rules, as we have observed, is widely accepted in both the amateur
and professional golf world as the rules of the game.
[21] At Chariot Run, “[a]ll the teams in this particular golf scramble were using
carts” provided by Caesars. (Appellant’s App. p. 134). When Wooten’s team
arrived at the fourteenth hole, they all teed off from a blind shot. Trying to
locate where their golf balls had landed, Malles and Wooten rode ahead in their
cart, while Chamernik followed behind in the second cart, and North walked
the fairway in search for his ball which might have landed in the creek. In his
designated deposition, Chamernik testified that “as we’re coming over the hill
my focus in on the fairway to see where my shot was and how close it was to
the green.” (Appellant’s App. p. 115). He explained that it is not “unusual for
a golfer to look for the ball from the cart” and is “part of the game.”
(Appellant’s App. p. 134). Malles affirmed that “[i]t is common part of the
game of golf for golfers to look for their ball while operating a golf cart on the
course.” (Appellant’s App. p. 141).
[22] However, by the time Chamernik “looked back straight ahead,” he noticed that
Malles and Wooten “had stopped [] and that’s when [he] hit their cart.”
(Appellant’s App. pp. 115-16). Malles confirmed that Chamernik “struck the
rear of [his] golf cart at a low rate of speed while [he] was stopped.”
(Appellant’s App. p. 141). Wooten testified in his deposition that he did not
“know how fast [Chamernik] was going,” but the impact “did not move [the
cart] dramatically.” (Appellant’s App. pp. 81, 82). Wooten conceded that he
has “been at golf courses before [] where people bump into you a little bit, and
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it’s no big deal.” (Appellant’s App. p. 99). He clarified that “I don’t recall how
many times [I’ve been in a golf cart accident] but anybody that’s played golf a
lot, the person behind them has eased up into them and bumped the cart.”
(Appellant’s App. p. 99). Malles “did not see any damage to either golf cart,
nor did Wooten “complain to [him] about tinnitus or blurred vision after the
accident.” (Appellant’s App. p. 141).
[23] As noted by our Supreme Court, the golf cart has become part and parcel of the
modern golf game, with an unremitting presence on the fairway. Wooten
himself admitted that it has become common and expected for golf carts to
bump into each other. Accordingly, even though incidents of this sort might be
actionable during non-golf related activities, this conduct, like hitting an errant
drive or the lack of yelling ‘fore’ in Pfenning, has now become “within the range
of ordinary behavior of participants” in golf and therefore, as a matter of law, it
cannot support a claim for negligence. See Pfenning, 947 N.E.2d at 404.
However, “[i]n any sporting activity, a participant’s particular conduct may
exceed the ambit of such reasonableness as a matter of law if the participant
either intentionally caused injury or engaged in reckless conduct.” Id. at 404.
Nevertheless, the designated evidence fails to establish any recklessness or
intent on the part of Chamernik when driving the golf cart. While Wooten did
not notice Chamernik’s speed, Malles testified that the cart was struck in the
rear “at a low rate of speed.” (Appellant’s App. p. 2). Wooten only confirmed
that its impact did not move the cart dramatically. There is no evidence that
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Chamernik had been involved in any horseplay or other questionable behavior
while driving the golf cart.
[24] Acknowledging the policy considerations on which Pfenning is grounded, we
recognize that encouragement to participate in golf implicitly discourages
excessive litigation of claims by persons who suffer injuries from participants’
conduct. The inclusion of golf carts in the sport is “commonly understood” and
while an inexact operation of a cart may somewhat “increase the normal risks
attendant to the activities of ordinary life outside the sports arena, it does not
render unreasonable the ordinary conduct” within the golf game, in the absence
of intent or recklessness. See id. at 403. Therefore, we affirm the trial court’s
summary judgment in favor of Chamernik.
CONCLUSION
[25] Based on the foregoing, we conclude that the trial court properly entered
summary judgment on Chamernik’s motion.
[26] Affirmed.
[27] Bailey, J. and Barnes, J. concur
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