South Carolina BAR Journal
SC Lawyer, January 2011, #3.
Sports Participant Liability in South Carolina: The District Court Takes a Swing
South Carolina LawyerJanuary 2011Sports Participant Liability in South Carolina: The District Court Takes a SwingBy Tom Kennaday This summer in Myrtle Beach, a golfer from Ohio had a bad weekend. On Saturday, while loosening up on the driving range, he hit a friend in the eye with his club on a practice swing. On the fourth hole, he sliced his drive into the fifth fairway where it broke the foot of another golfer. On the last hole, he lipped out a three-foot putt for birdie, for 89, and to tie the double-or-nothing bet he made on the tee. He reacted to the missed putt by throwing his putter in a rage toward the lake, but instead the club flew into the knee cap of another player. Undaunted by Saturday's events, and having prepaid his greens fees for the whole weekend, the golfer from Ohio played again on Sunday. His poor play continued Sunday with a sliced a tee shot from the third tee onto an adjacent highway where his ball shattered the windshield of a passing car, injuring the driver. On the twelfth hole he sliced another tee shot. This one hit the owner of an adjacent home while she was floating in her swimming pool. All five victims required medical care and sued.
Although the foregoing probably never happened to one person on one weekend, any one of those mishaps could happen on any given day in South Carolina. This article addresses what liability a golfer or other sports participant might have for these or similar mishaps. Saturday's events all involved coparticipants, and therefore may be controlled by a recent case from the District Court that addresses the duty coparticipants in sporting activities owe to each other. What duty sports participants owe non-participants is still an open question in South Carolina.
Sports Coparticipant Liability
In Rudzinski v. BB, Slip Copy, No. 0:09-1819-JFA, 2010 WL 2723105 (D.S.C. July 9, 2010), Judge Joseph F. Anderson Jr. addressed "the duty coparticipants in sporting activities owe one another," "an issue of first impression in South Carolina." He concluded that the doctrine of primary implied assumption of risk applies to coparticipants and precludes any liability between them based on negligence. Although Rudzinski and the focus of this article are about golf, Judge Anderson discussed the case in more general terms, "the duty to coparticipants in sports." Thus, the decision could have far reaching effects in South Carolina, from youth soccer to college football.
Rudzinski involved two young boys hitting golf balls on a golf course behind the plaintiff's house. The defendant, an 11 year old referred to by the Court as BB, hit the plaintiff's son in the face with a club. The plaintiff's son was 9 years old. The Court referred to him as DB. The incident occurred when DB went to move an extra ball while BB was preparing to swing. DB told BB not to swing, but BB did not hear him and swung anyway, striking DB instead of the ball.
BB moved for summary judgment on the grounds that coparticipants cannot be liable to each other unless the conduct was reckless or intentional. Judge Anderson predicted that the South Carolina courts would agree. Judge Anderson analyzed the case under the doctrine of primary implied assumption of risk, which was recognized in another South Carolina sports case in which a hockey spectator was hit by a puck. Hurst v. East Coast Hockey League, Inc., 637 S.E.2d 560 (S.C. 2006). As Judge Anderson explained, According to this doctrine, a plaintiff impliedly assumes those risks that are inherent in a particular activity. Primary implied assumption of risk is not an affirmative defense, but rather goes to the initial determination of whether the defendant's legal duty encompasses the risk encountered by the plaintiff. And the doctrine goes hand in hand with the principle that if there is no duty, then the defendant...