Sall v. T'S, Inc.

34 Kan. App. 2d 296, 117 P.3d 896 (2005)

 

RULE:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if: (a) his failure to exercise such care increases the risk of such harm; or (b) the harm is suffered because of the other's reliance upon the undertaking.

FACTS:

Plaintiffs, an injured person and his guardians, filed suit against defendant golf course alleging negligence after plaintiff was struck by lightning while playing golf. Plaintiff argued, among other things, that the trial court erred by granting defendant's motion for summary judgment because it was required to warn him of the risk of lightning-related injury. The court of appeals disagreed. The appellate court affirmed the judgment.

ISSUE:

Was defendant golf course liable for the injuries sustained by plaintiffs on account of negligence due to its failure to warn them of the risk of lightning-related injury within their premises? 

ANSWER:

No.

CONCLUSION:

It was undisputed that plaintiff continued to golf, even after his friend spotted lightning off in the distance. There was compelling evidence that plaintiff did not immediately head to the clubhouse after hearing the horn but lingered on the golf course for as long as 10 minutes. Plaintiff should have been able to travel the quarter-mile from the second green to the clubhouse in well under 10 minutes. Defendant did not have a duty to foresee lightning under those circumstances. By all accounts, defendant provided its customers with approximately 10 minutes' notice that lightning had been seen in the area. Plaintiff saw the lightning and chose to remain on the golf course. There was no evidence that the horn was not sounded early enough to allow all golfers to reach the safety of the clubhouse. Such action did not make the defendant negligent.

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