Summary 2012 WY 124

Summary of Decision September 14, 2012

Justice Golden delivered the opinion for the Court. Reversed and Remanded. District Judge Tyler filed a dissenting opinion, in which District Judge Sullins joined.

Case Name: JAMES CREEL and BRENDA CREEL v. L & L, INC., A Wyoming Corporation, LEW LEPORE and MIKE LEPORE

Docket Number: S-11-0138

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Laramie County, Honorable Thomas Campbell, Judge.

Representing Appellant: Richard Gage of Richard Gage, PC, Cheyenne, Wyoming

Representing Appellee: Grant R. Curry and Monty L. Barnett of White & Steele, P.C., Cheyenne, Wyoming, and Denver, Colorado.  Argument by Mr. Barnett.

Date of Decision: September 14, 2012

Facts:  James Creel and Brenda Creel (collectively the Creels) attended the 2006 Wyoming Open Golf Tournament (Wyoming Open) as spectators.  During the tournament, James Creel (Mr. Creel) was struck by a golf ball and suffered a head injury.  The Creels thereafter filed an action for damages against several parties, including the golfer who hit the ball, a tournament official, and the operators of the golf course and tournament – L & L, Inc. and its owners Lew Lepore and Mike Lepore (collectively L & L).  The district court granted summary judgment in favor of all defendants except the golfer, concluding that getting hit by a golf ball is an inherent risk of golf and that the Wyoming Recreation Safety Act thus barred the Creels’ action.  The Creels appealed the summary judgment entered in favor of L & L.

Issues:  The Creels present the following issues on appeal:

1.         Does the “Recreation[] Safety Act,” Wyoming Statute § 1-1-121 through § 1-1-123, shield a provider of a recreational opportunity from liability when the provider fails to provide a safe environment for that recreational opportunity?

2.         Does the “Recreation[] Safety Act,” Wyoming Statute § 1-1-121 through § 1-1-123, shield a provider of a recreational opportunity from liability when the negligence of the provider increases the dangers to spectators at that recreational opportunity?

Holdings:  Based on the conflicting evidence and the reasonable inferences that can be fairly drawn from the record, the Court found genuine questions of material fact existed and the jury must resolve whether L & L increased the risk that James Creel would be struck by a golf ball, beyond the risk inherent in the sport, when L & L’s agent instructed a player to tee off when golfers and spectators were on and around the green and the player expressed concern that he could hit the group ahead of him.  The Court thus reversed the entry of summary judgment and remanded to the district court for proceedings consistent with this opinion.

TYLER, District Judge, dissenting, in which SULLINS, District Judge, joins.

We would affirm the trial court’s grant of summary judgment to Appellees as a matter of law, since there are no genuine issues of material fact in dispute.

Summary Judgment Standard of Review

This Court’s standard of review for an award of summary judgment is well-known.  We must “examine the record from the vantage point most favorable to the non-movant party and that party receives the benefit of all favorable inferences which may fairly be drawn from the record.”  Franks v. Indep. Prod. Co., Inc., 2004 WY 97, ¶ 9, 96 P.3d 484, 490 (Wyo. 2004). 

           

Summary judgment is proper if no genuine issue of material fact exists and if the prevailing party is entitled to a judgment as a matter of law.  W.R.C.P. 56(c); Franks, ¶ 9, 96 P.3d at 490; Ware v. Converse Cty. Sch. Dist. No. 2, 789 P.2d 872, 874 (Wyo. 1990).  A genuine issue of material fact is a fact which, if proven, “would have the effect of establishing or refuting an essential element of a cause of action or defense which has been asserted by the parties.”  Roitz v. Kidman, 913 P.2d 431, 432 (Wyo. 1996); see also Franks, ¶ 9, 96 P.3d at 490.  “Material fact” has been defined as a fact falling into any one of the following categories: 

[A fact] having legal significance which would . . . control the legal relations of the parties; one upon which the outcome of the litigation depends in whole or in part; one on which the controversy may be determined; one which will affect the outcome of the case depending on its resolution; or, one which constitutes a part of the plaintiff’s cause of action or the defendant’s defense. 

Reno Livestock Corp. v. Sun Oil Co., 638 P.2d 147, 151 (Wyo. 1981) (citing Johnson v. Soulis, 542 P.2d 867, 871-72 (Wyo. 1975)).

A motion for summary judgment places an initial burden on the movant to make a prima facie showing that no genuine issue of material fact exists and that summary judgment should be granted as a matter of law.  W.R.C.P. 56(c).  Until the movant has made a prima facie showing that genuine issues of material fact do not exist, the non-movant party has no obligation to come forward to counter the motion with materials beyond the pleadings.  Rino v. Mead, 2002 WY 144, ¶ 23, 55 P.3d 13, 20 (Wyo. 2002).  Once a prima facie showing is made, the burden shifts to the party opposing the motion to present specific facts showing that a genuine issue of material fact does exist.  Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo. 1987).  The party opposing a motion for summary judgment “must affirmatively set forth material facts in opposition to a motion for summary judgment, . . . [and] cannot rely only on his allegations and pleadings.”  Hyatt v. Big Horn Sch. Dist. No. 4, 636 P.2d 525, 530 (Wyo. 1981).  “Conclusory statements or mere opinions are insufficient . . . to satisfy an opposing party’s burden.” Boehm, 748 P.2d at 710.  The whole purpose of summary judgment would be defeated if a case could be forced to trial by a mere assertion that an issue exists.  England v. Simmons, 728 P.2d 1137, 1141 (Wyo. 1986).

Discussion

Pertinent provisions of the Recreation Safety Act, Wyo. Stat. Ann. § 1-1-121 through § 1-1-123 (LexisNexis 2011), provide:

§ 1-1-122. Definitions.

(a)        As used in this act:

(i)         “Inherent risk” with regard to any sport or recreational opportunity means those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity;

(ii)        “Provider” means any person or governmental entity which for profit or otherwise, offers or conducts a sport or recreational opportunity.  This act does not apply to a cause of action based upon the design or manufacture of sport or recreational equipment or products or safety equipment used incidental to or required by the sport or recreational opportunity;

(iii)       “Sport or recreational opportunity” means commonly understood sporting activities including baseball, softball, football, soccer, basketball, swimming, hockey, dude ranching, nordic or alpine skiing and other alpine sports, snowboarding, mountain climbing, outdoor education programs, river floating, hunting, fishing, backcountry trips, horseback riding and any other equine activity, snowmobiling and similar recreational opportunities and includes the use of private lands for vehicle parking and land access related to the sport or recreational opportunity[.]

* * * *

§ 1-1-123. Assumption of risk.

(a)        Any person who takes part in any sport or recreational opportunity assumes the inherent risks in that sport or recreational opportunity, whether those risks are known or unknown, and is legally responsible for any and all damage, injury or death to himself or other persons or property that results from the inherent risks in that sport or recreational opportunity.

(b)        A provider of any sport or recreational opportunity is not required to eliminate, alter or control the inherent risks within the particular sport or recreational opportunity.

(c)        Actions based upon negligence of the provider wherein the damage, injury or death is not the result of an inherent risk of the sport or recreational opportunity shall be preserved pursuant to W.S. 1-1-109.

* * * *

           

The following facts germane to this appeal are not disputed:

1.         At all relevant times, Appellees were “providers” of a “sport or recreational opportunity.”  Wyo. Stat. Ann. § 1-1-122(a)(ii), (iii).

2.         Being struck by a golf ball on a golf course during play at a professional golf tournament is an “inherent risk” assumed by a participant of a “sport or recreational opportunity.”  Wyo. Stat. Ann. § 1-1-122(a)(i), (iii).

3.         At all relevant times, as a spectator present on a golf course during a professional golf tournament, Appellant James Creel assumed the “inherent risk” of being struck by a golf ball.  Wyo. Stat. Ann. § 1-1-122(a)(i), (iii) and § 1-1-123(a).

4.         Appellees were not required “to eliminate, alter or control the inherent risks” to Appellant James Creel of being struck by a golf ball while he was a spectator physically present on a golf course during play at a professional golf tournament.  Wyo. Stat. Ann. § 1-1-122(a)(i), (iii) and § 1-1-123(b).

5.         The record is devoid of any acts or omissions by Appellees creating or causing a “non-inherent risk” of injury to Appellant James Creel.

Within this appeal, Appellants do not steadfastly dispute whether being hit by a golf ball is an inherent risk of the sport of golf.  Instead, they focus on the alleged negligent acts of Appellees, and argue that the act of directing the golfer to proceed to hit his drive on the first hole is not an act that is inherent to the game.  In support of this position, Appellants rely upon Wyo. Stat. Ann. § 1-1-123(c) alone, and assert that such provision supports an exception applicable to the case at hand.  Such an argument is flawed. 

If the language of the Recreation Safety Act is clear and unambiguous, then we should apply the plain and ordinary meaning of the words without resorting to the rules of statutory construction.  Wyo. Stat. Ann. § 8-1-103(a)(i) (LexisNexis 2011); Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo. 1995) (citing Soles v. State, 809 P.2d 772, 773 (Wyo. 1991)).  The language of Wyo. Stat. Ann. § 1-1-123(c) is clear and unambiguous.  The proper interpretation is one that focuses upon whether the risk is “inherent” to the “sport or recreational opportunity” – not the nature of the conduct (i.e., whether the conduct is negligent).  State v. Stern, 526 P.2d 344, 351 (Wyo. 1974) (“[L]egislative intent governs and that ‘intent must be ascertained by reading it [the statute] according to the natural import of the language used without resorting to subtle and forced construction.’” (alteration in original) (quoting State ex rel. Murane v. Jack, 52 Wyo. 173, 70 P.2d 888, 892 (1937)).   Accordingly, the negligence exception under Wyo. Stat. Ann. § 1-1-123(c) applies solely to “non-inherent risks.” 

Inasmuch as the uncontroverted fact that being struck by a golf ball on a golf course during play at a professional golf tournament is an “inherent risk” assumed by a participant of a “sport or recreational opportunity,” the negligence exception in subsection (c) does not apply.  Wyo. Stat. Ann. § 1-1-122(a)(i), (iii) and § 1-1-123(c).  To decide otherwise would effectively render the core purpose of the Recreation Safety Act a nullity.

Appellees’ motion for summary judgment made a sufficient prima facie showing that no genuine issue of material fact exists and that summary judgment should be granted as a matter of law under the Recreation Safety Act.  W.R.C.P. 56(c).  The burden then shifted to Appellants to present specific facts showing that a genuine issue of material fact does exist.  Moreover, Appellants “cannot rely only on [their] allegations and pleadings.”  Hyatt, 636 P.2d at 530; see also England, 728 P.2d at 1141. 

Appellants failed to present specific material facts to the district court showing that any “damage [or] injury [was] not the result of an inherent risk of the sport or recreational opportunity.”  Wyo. Stat. Ann. § 1-1-123(c).  Therefore, as to the claims asserted by Appellants against Appellees, no genuine issues of material fact exist which “would have the effect of establishing . . . an essential element of a cause of action.”  Roitz, 913 P.2d at 432; see also Franks, ¶ 9, 96 P.3d at 490; Reno Livestock Corp., 638 P.2d at 151; Johnson, 542 P.2d at 871-72; W.R.C.P. 56(c). 

Pursuant to the Recreation Safety Act as a matter of law, Appellees should be deemed immune from any and all liability arising from Appellants’ claims against them.  Wyo. Stat. Ann. § 1-1-123(a), (b).

Conclusion

In this appeal, strictly involving Appellants’ claims against Appellees, we would affirm the district court’s grant of summary judgment in favor of Appellees as a matter of law under the immunity afforded them by the Recreation Safety Act, since there exist no genuine issues of material fact to be determined.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

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