2008-235, KIRSTEN WERNE v. EXECUTIVE WOMEN'S GOLF ASSOCIATION & a.

Deb Armfield. and Emily M. Doherty on the brief, and Mr. Desmarais orally), for defendant Desmarais, Ewing & Johnston, PLLC, of Manchester (Fred J. Desmarais

and orally), for defendant Alpine Ridge Golf, LLC d/b/a Alpine Ridge Golf Club. Downs Rachlin Martin PLLC, of Littleton (Kate Strickland on the brief

Association of Southern New Hampshire. Poulin on the brief and orally), for defendant Executive Women’s Golf Getman, Stacey, Schulthess & Steere, P.A., of Bedford (Christopher J.

William J. Flanagan orally), for defendant Executive Women’s Golf Association. Morrison Mahoney LLP, of Manchester (Ralph Suozzo on the brief, and

to press. Errors may be reported by E-mail at the following address: William Aivalikles, of Nashua, by brief and orally, for the plaintiff.

EXECUTIVE WOMEN’S GOLF ASSOCIATION & a.

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2008-235 Hillsborough-southern judicial district

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as once darkness fell.

p. 2 applicable duty of care owed to her under the inherent risks of the game, and ruled that they had not breached the

organizations and the general public for at least two years. The event began Ridge had offered glow golf on Friday evenings on a regular basis to illuminate the golf course and the participants. Prior to this event, Alpine

showing that the conduct of any defendant unreasonably increased the

and other glowing devices, such as tiki torches and glow necklaces, to

(Quotations omitted.) The court concluded that Werne had failed to allege facts

some of the holes. The players generally agree the course was dark. Association. Glow golf involves golfing at night while using glowing golf balls and on the flag on each green. Tiki torches were also placed near the green at hole was 110 yards. Alpine Ridge placed glow sticks on each side of the tees

unreasonable risks beyond those risks inherent within the sport of glow golf.” range of ordinary activity involved in the sport and for creating or allowing only be held liable . . . for reckless or intentional injurious conduct outside the

court granted. Relying upon

assumption of the risk and her own comparative fault. Allen standard. Southern New Hampshire, a chapter of the Executive Women’s Golf evening of glow golf sponsored by the Executive Women’s Golf Association of they wore glow jewelry. Lighting on the course was minimal, and the longest golf course owned and operated by Alpine Ridge Golf, LLC. The event was an

in the head, causing her to suffer a concussion and permanent brain damage. impaired. In the course of their round, Armfield made a shot which hit Werne 148 N.H. 407, 418 (2002), the trial court reasoned that “the defendants can Werne does not allege and the record does not indicate that anyone was

The defendants then filed motions for summary judgment that the trial

that it did not owe Werne a duty and that Werne’s claims were barred by her defendant filed a special plea and brief statement, arguing, among other things, Armfield and two other women. Participants were given glowing golf balls and Werne brought a claim for negligence against all four defendants. Each “Annual Nite Lite Outing” at Alpine Ridge Golf Club (Alpine Ridge) in Hollis, a

The players consumed some beer over the course of the evening, but affirm.

At the event, Werne played in a group of four, which included Deb September 5, 2003, Werne was struck by a golf ball while participating in

Southern New Hampshire, Alpine Ridge Golf, LLC and Deb Armfield. We

The trial court found or the record supports the following facts. On

Executive Women’s Golf Association, Executive Women’s Golf Association of the Superior Court (Groff, J.) granting summary judgment to the defendants, BRODERICK, C.J. The plaintiff, Kirsten Werne, appeals from an order of land owners operating sports facilities. In p. 3 risk doctrine and the common law duties of land owners, including those of

misapprehends the relationship between the primary implied assumption of

out of the nature of the sport generally and flow from such participation.”

not applicable to tort claims against owners and occupiers of land under the circumstances.”

owners owe to members of the public.

sport “gives rise to commonly appreciated risks which are inherent in and arise

Similarly, Werne’s argument that the assumption of the risk doctrine is the sport or that would be created by a reasonable person of ordinary prudence maintenance and operation of their property. the softball field was to “create only [the] risks that are normal or ordinary to this case, the trial court correctly identified the common law duties land the six defendants in that case. We held that the duty owed by the owner of owners operating a sports facility. Accordingly, by applying Allen to the facts of simply addresses the duty with regard to the circumstances common to land owner’s general duty to exercise reasonable care under the circumstances; it applicable to tort claims against owners and occupiers of land.” We disagree. (quotation omitted). Allen does not represent a departure from the land reasonable person of ordinary prudence under the circumstances.” Id. at 418 [the] risks that are normal or ordinary to the sport [at issue] acts as a However, as the trial court noted, courts have recognized that participating in a negligence terms, a land owner operating a sports facility “who creates only

owe plaintiffs a duty of reasonable care under all the circumstances in the running to first base. A land owner, the owner of the softball field, was one of In Allen, the plaintiff was struck by an errantly thrown softball while

assumption of the risk because “[t]he assumption of the risk doctrine is not Allen, 148 N.H. at 417 (quotation omitted).

Alpine Ridge Golf, LLC owed Werne the same duty of reasonable care. facts Stores, 144 N.H. 571, 574 (1999). As a land owner operating a sports facility,

Werne correctly observes in her brief that owners and occupiers of land

she contends that Alpine Ridge cannot assert the defense of primary implied duties that are owed by land owners to members of the public.” Specifically, Werne first argues that the trial court “fail[ed] to apply the common law

de novo. Id. 514 (2008). However, we review the trial court’s application of the law to the

of material fact, and the moving party is entitled to judgment as a matter of N.H. 1, 4 (2005). If our review of the evidence fails to reveal any genuine issue light most favorable to the non-moving party. Cohoon v. IDM Software, 153 affidavits and other evidence and all inferences properly drawn therefrom in the In reviewing a trial court’s summary judgment ruling, we consider the defendant is bound by those defenses.

p. 4 (1) the nature of the sport involved; (2) the type of contest;

same as those of golf, it is the custom to play it after dark. The record Yes, the dark!” Although the rules of glow golf appear to be essentially the

of violence generally accepted.

participants, sponsors and organizers of recreational athletics, we consider:

special plea and brief statement. Failure to plead any potential defense that no duty was owed. Superior Court Rule 28 requires a defendant to file a opposed to golf generally. We disagree. admit that they owed her a duty, and therefore must be barred from arguing announcing Annual Nite Lite Outing provided: “Come play around in the dark!

customs and practices of the sport, including the types of contact, and the level skills of the participants; (4) the type of equipment involved; and (5) the rules, the exclusion of other defenses. school, little league, pick-up, etc.; (3) the ages, physical characteristics and

assumption of the risk would otherwise be unavailable as a defense against To determine the appropriate standard of care to be applied to

conduct unreasonably increased the inherent risks of the sport of glow golf as defendants initially pled that the plaintiff was comparatively at fault, they that the trial court erred in premising its decision on whether the defendants’ Next, Werne contends that glow golf is not a distinct sport from golf, and

Accordingly, the defendants were not limited to asserting comparative fault to inconsistent defenses may be pled. LePage v. Company, 97 N.H. 46, 50 (1951).

overturn that case, and nothing in our case law suggests that primary implied

pleas and brief statements. Her argument suggests that because the risks outside the range of ordinary activity involved in the sport. risk because they pled that Werne was comparatively at fault in their special defendants from asserting the defense of primary implied assumption of the Werne next argues that the trial court should have barred all four

plaintiff’s claim against a land owner. Werne does not argue that we should We applied primary implied assumption of the risk in Allen to bar the

420-23.

unreasonably increased that risk or unreasonably created or countenanced including the owner of the field, were not liable because they had not thrown ball was part of the risk inherent in the game, and that the defendants, Id. at 414. In Allen, we held that being struck in the head by an errantly duty to protect the plaintiff against injuries that may be caused by those risks. reasonably knows involves certain obvious risks such that a defendant has no and reasonably enters into some relation with a defendant which the plaintiff of primary implied assumption of the risk applies when a plaintiff voluntarily while playing glow golf.

p. 5 unreasonably increased the inherent risk that Werne could be struck by a ball

possible conditions, Werne failed to demonstrate that any conduct

the conditions under which the game was played may not have been the safest among other things, failing to monitor, screen, or instruct players. Although struck by a shot while playing in the dark. Executive Women’s Golf Association of Southern New Hampshire, including, inability to see p. 5 unreasonably increased the inherent risk that Werne would be

wait until it was dark.” to which she replied: “That was the point. It was dark. . . . [T]hey made us was asked why she did not stop playing if she knew it was “really, really dark,”

regard to the conduct of the Executive Women’s Golf Association and the conclude, and Werne does not argue, that the darkness or Armfield’s alleged

that Werne would be struck by a ball.

care.

dark conditions were an integral part of the game. During her deposition she

We reach the same result for each of Werne’s factual allegations with hitting the ball at the time of the injury.” However, the expert’s report does not

fail to establish that these conditions p. 5 unreasonably increased the inherent risk Werne’s claims of negligence related to darkness or the players’ inability to see Id. The record shows that glow golf is played in the dark. Therefore, its rules, customs and practices in determining the appropriate standard of unreasonably increased the risks inherent in the game. We disagree. Allen provides that we must consider the nature of the sport involved and

due to inadequate lighting. However, Werne’s own deposition shows that the

only logical explanation . . . is that Ms. Armfield did not know where she was we apply the five considerations from to see where she was hitting the ball. One of Werne’s experts opined: “[T]he She further argues that lack of light prevented Armfield from being able

defendants’ motions for summary judgment because their conduct

court’s characterization of the sport at issue as glow golf as opposed to golf. Werne alleges that Alpine Ridge breached a duty to provide safe premises

standard of care each defendant owed to Werne. See id. at 418.

unreasonably increased this inherent risk by their conduct. In so concluding, game of glow golf. Werne did not allege any facts to show that the defendants All parties agree that being hit by an errant golf ball is a risk inherent in the

Werne further argues that the trial court erred in granting the

industry magazines. In considering these factors, we find no error in the trial distinct from that of golf, and that it is marketed at trade shows and in Moreover, record testimony indicates that glow golf has its own equipment, indicates that participants of any age or skill level are allowed to play the game. course.

p. 6 alcohol in locations where the commission approves service, including on a golf

course. Golf courses can obtain liquor licenses that allow consumption of Moreover, RSA 179:27 does not prohibit consumption of alcohol on a golf impaired or that alcohol consumption had anything to do with what occurred.

RSA 179:27 (Supp. 2008)] may have increased the inherent risk of golf.” allowing the consumption of alcohol while on the golf course [in violation of claimed that “[t]he evidence did raise the inference that [Alpine Ridge’s]

judgment.

the ball. None of the other players’ depositions indicated that any player was

playing glow golf.

DALIANIS and DUGGAN, JJ., concurred.

affirm the superior court order granting the defendants’ motions for summary Werne has failed to demonstrate reversible error, and, accordingly, we not know how many beers any player had consumed before she was struck by applicable law. In particular, Werne admitted in her deposition that she did would unreasonably increase the inherent risk of being struck by a ball while permit alcohol consumption while playing glow golf or that consuming alcohol presented no evidence to establish that a reasonable golf club owner would not

See RSA 178:22, V(u)-(v), :24 (Supp. 2008). In addition, Werne

alleges that “[t]here was sufficient evidence to raise an arguable issue that

We find these claims to be contrary to the evidence in the record and the activity involved in the sport. unreasonably created or countenanced risks outside the range of ordinary

evidence and failed to draw all reasonable inferences in her favor. Werne Specifically, she claims the trial court made findings of fact unsupported by the standard in ruling upon the defendants’ motions for summary judgment. Finally, Werne argues that the trial court failed to apply the proper

unreasonably increased the risks inherent in the game of glow golf or if they standard in this case. The defendants may only be held liable if their conduct us to adopt that approach. We decline to do so. Allen provides the governing that purportedly impose a different standard of care for defendants and urges Werne points to several cases with similar facts from other jurisdictions