On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Approved for Publication April 8, 1997.
Before Judges Kleiner and Coburn. The opinion of the court was delivered by Kleiner, J.A.D.
The opinion of the court was delivered by: Kleiner
The opinion of the court was delivered by
This case is one of first impression in New Jersey. The issue raised is whether golf course operators owe a duty of care to their patrons to protect them from lightning strikes. Plaintiffs Spencer Maussner and Colleen Maussner appeal from the entry of an order granting summary judgment to defendants. In their appeal, plaintiffs contend that the trial court erred in summarily concluding that the owners and operators of a golf course owed no duty to golfers to protect them from lightning strikes. According to plaintiffs, a lightning strike on a golf course is a foreseeable risk that must be addressed by the owners of the course where various means of protection are feasible. Plaintiffs maintain that the dismissal of this case prior to the completion of crucial discovery denied them the opportunity to ascertain who bore the responsibility for failing to implement proper safety procedures at defendant's golf club.
We need not consider, under the circumstances of this case, whether all golf courses have an affirmative duty to protect their patrons from lightning strikes. We find, however, that where a golf course has taken steps to protect its patrons from lightning strikes, a duty of reasonable care arises to take these steps correctly under the circumstances.
Finding that there is a triable issue as to whether defendant Atlantic City Country Club properly implemented its safety procedures, we reverse and remand to the trial court for proceedings not inconsistent with this opinion.
At approximately 7:30 a.m. on Sunday, March 28, 1993, plaintiff Spencer Van Maussner, *fn1 a longstanding member of the Atlantic City Country Club (Club), arrived at the Club with his friends Michael McHugh, Robert Dusz, and Peter Costanzo. The foursome regularly played golf together on Sunday mornings. Although a snowstorm had been predicted for that morning, the sportsmen were not deterred from pursuing their scheduled golf match.
The sky that morning was overcast with misty conditions, and it was drizzling rain by the time the group began to play. At approximately 8:00 a.m., the Club's starter *fn2 directed the foursome to begin play at the tenth hole. *fn3 As the group played their first two holes, the tenth and eleventh, the drizzle turned into a downpour, which subsided as they teed off at the twelfth hole. After hitting his approach shot to the twelfth green, McHugh noticed a lightning bolt, and the four players and their two caddies proceeded along the fairway intending to seek refuge at the clubhouse, which was approximately one half mile away. There were no man-made shelters along this route. While walking, plaintiff put up his umbrella to avoid the rain.
On route to the clubhouse, the group crossed onto the seventh fairway. Walking on the seventh fairway, McHugh and Dusz were about fifteen yards behind plaintiff and Costanzo. Suddenly there was a tremendous noise, and McHugh watched as a lightning bolt struck plaintiff, causing him substantial injuries. Both plaintiff and Costanzo fell to the ground. Dusz immediately went for help at the clubhouse, which was approximately 325 yards away, while McHugh remained behind to assist his friends. One caddie was sent to the nearby police station to obtain additional assistance. After ascertaining that Costanzo was stable, McHugh administered CPR to plaintiff until the police and the medics arrived. According to McHugh, the Club caddie master and Club pro arrived at about the same time as the police. During this time, lightning continued to appear in the sky.
Plaintiff filed a complaint in the Superior Court, Law Division, Camden County, seeking damages for the injuries that he sustained in the above incident at the Atlantic City Country Club. The named defendants were the corporate entity itself; Douglas Fraser and James Fraser, the sole shareholders; Laurie Fraser, James Fraser's wife; and two other entities no longer in existence. The various defendants filed a timely answer to plaintiff's complaint, raising, inter alia, the defenses that they were under no duty to protect plaintiff from a lightning strike and that plaintiff's injuries were the result of an act of God.
Defendants moved for summary judgment asserting that plaintiff had not "met his burden of establishing that defendants created or maintained a dangerous condition on the golf course." According to their moving papers, defendant: *fn4
Used reasonable care to make its premises safe for golfers. It monitored the weather channel and was in constant communication with the weather station. Signs were posted at the Country Club instructing members of its evacuation plan and how to proceed if inclement weather struck during play.
Defendant also argued that it was entitled to summary judgment because "plaintiff has not met its burden of establishing that a foreseeable risk was the proximate cause of his injuries."
Accompanying its motion for summary judgment, defendant attached its answers to plaintiff's interrogatories. One such answer claimed that it had "no notice of [the lightning storm], however this defendant did have an effective evacuation plan which was put into effect immediately upon notice of a lightning storm." *fn5 This evacuation plan apparently consisted of the golf pro and the pro shop manager getting into golf carts, driving onto the course to locate golfers, and making sure that all the golfers vacated the course.
According to defendant, Club management generally monitored the weather by listening to the weather advisory channel and placing calls to the Naval Aviation Facilities Experimental Center (NAFEC). The Club consulted the National Weather Service on the morning of the incident and, although inclement weather was predicted, there were no warnings that lightning was possible.
The Club did not possess any equipment for detecting lightning, had not installed any audible warning devices, nor had they erected any shelters on the course. Club members were warned about the general risks of lightning by a notice from Don Siok, the Club golf pro, and a United States Golf Association (USGA) poster, which were both posted in the locker room. The notice from Siok advises golfers that:
WEATHER CONDITIONS SOMETIMES NECESSITATE OUR GOLF COURSE EVACUATION PLAN TO BE IMPLEMENTED
WHEN AUTHORIZED PERSONNEL ADVISE YOU TO COME IN OFF THE COURSE, IT IS IMPERATIVE THAT YOU DO SO.
OUR WEATHER MONITORING SYSTEM (NAFEC AND WEATHER ADVISORY CHANNEL) ADVISES U.S. OF DANGEROUS ELEMENTS IN THE AREA AND GIVES U.S. TIME TO CLEAR THE COURSE TO INSURE YOUR SAFE EVACUATION.
THE U.S.G.A. RECOMMENDS YOU REACT IMMEDIATELY TO A DANGEROUS SITUATION AND TO SEEK SHELTER IF YOU FEEL DANGER FROM LIGHTING (sic) OR STORM IS IMMINENT.
In a responding certification, plaintiff claimed that these notices were not placed in the locker room until after he was struck by lightning.
As described by the Club, their evacuation plan, which entailed Club employees retrieving golfers on the course at the first notice of thunder or lightning, had been in effect for approximately forty years. Defendant also maintained that golfers were encouraged to retreat to nearby private homes in the event of a severe storm. Plaintiff and his friends, in response certifications, denied any knowledge that they would be welcome at these homes. *fn6 Nonetheless, according to defendant, one caddie did make this suggestion while the golfers were walking back to the clubhouse. The golfers apparently rejected the idea. Plaintiff, however, disputes this contention.
On March 19, 1996, plaintiff filed a brief in opposition to summary judgment and also filed a cross-motion to compel further discovery. On March 25, 1996, defendant cross-moved to compel discovery.
Accompanying plaintiff's brief in opposition to defendant's motion for summary judgment were the following: plaintiff's affidavit; a statement by Michael McHugh; and a "preliminary report" written by Henry A. Berger, CLP, a recreation and sports consultant, retained by plaintiff as an expert.
In plaintiff's affidavit, he opined that if the Club's evacuation plan worked as the Club stated that it did, the Club employees would have arrived earlier than they did. Plaintiff also disputed the claim that "everyone" knew that there were private houses along the course at which golfers would be welcome in the case of inclement weather. According to plaintiff, "no one ever told me, or anyone else that I am aware of . . . prior to ...