                                                                         FILED
                                                                    Nov 15 2016, 5:37 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Karl N. Truman                                             Rodney L. Scott
Marsha A. Dailey                                           Eric T. Eberwine
Jeffersonville, Indiana                                    Waters Tyler Hofmann & Scott, LLC
                                                           New Albany, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David D. Wooten,                                          November 15, 2016

Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          31A04-1605-CT-1037
        v.                                                Appeal from the Harrison Superior
                                                          Court

Caesars Riverboat Casino, LLC                             The Honorable Larry Medlock,
                                                          Special Judge
and Bernard J. Chamernik,
                                                          Cause No. 31D01-1311-CT-39
Appellees-Plaintiffs.




Riley, Judge.




Court of Appeals of Indiana | Opinion 31A04-1605-CT-1037 | November 15, 2016                 Page 1 of 14
                                     STATEMENT OF THE CASE

[1]   Appellant-Plaintiff, David D. Wooten (Wooten), appeals the trial court’s

      summary judgment in favor of Appellee-Defendant, 1 Bernard J. Chamernik

      (Chamernik), which concluded, as a matter of law, that Chamernik’s actions

      fell within the range of ordinary behavior of participants in the sport of golf.


[2]   We affirm.


                                                       ISSUE

[3]   Wooten raises two issues on appeal, which we consolidate and restate as:

      Whether the trial court properly concluded that Chamernik’s conduct of driving

      the golf cart during a golf scramble fell within the ordinary range of behavior of

      participants in golf, as interpreted by our supreme court in Pfenning v. Lineman,

      947 N.E.2d 392 (Ind. 2011).


                            FACTS AND PROCEDURAL HISTORY

[4]   This case stems from an incident that occurred between two participants at a

      VIP golf scramble at Chariot Run Golf Course, in Harrison County, Indiana.

      On August 19, 2012, Wooten and Chamernik were invited to participate in a

      golf tournament sponsored by Caesars Riverboat Casino (Caesars) at its golf

      course, Chariot Run Golf Course (Chariot Run). According to the event rules,



      1
       The caption on this cause also lists Caesars Riverboat Casino, LLC (Caesars) as Appellee-Defendant.
      However, the case against Caesars was settled between the parties and accordingly, Caesars is no longer a
      party on appeal.

      Court of Appeals of Indiana | Opinion 31A04-1605-CT-1037 | November 15, 2016                    Page 2 of 14
      the golf scramble consisted of teams of four golfers, with the team playing the

      best ball for each shot. Caesars paired Wooten, Chamernik, James Malles

      (Malles), and James North (North), none of whom knew each other, as partners

      for the scramble. Wooten was the only one who had previously played at

      Chariot Run and who was familiar with its layout. Caesars provided all teams

      with golf carts—Wooten and Malles rode in one golf cart and Chamernik and

      North rode in a second golf cart behind them. Although Chariot Run features

      paved asphalt paths for the golf carts, participants were allowed to “drive the

      carts on the fairway” and to pull the “cart up close to where [the] ball was and

      hit it.” (Appellant’s App. p. 71).


[5]   Wooten’s team started the scramble at the twelfth hole. The fourteenth hole

      was a blind shot from the tee, after which Malles and Wooten rode ahead in

      their cart on the cart path. Chamernik followed behind, while looking for his

      ball on the fairway. Malles stopped the golf cart on the path near the green on

      the downward slope of a hill. Wooten was “leaning up to get out of the cart”

      when it was hit from behind by Chamernik “at a low rate of speed.”

      (Appellant’s App. pp. 76, 141). The impact of the collision “threw [Wooten]

      backwards,” but he did not leave his seat and was not otherwise thrown out of

      the golf cart. (Appellant’s App. p. 83). Wooten’s neck “snapped backwards”

      and started “bothering” him, and his ears started ringing. (Appellant’s App. p.

      84). Wooten “sat in the cart for several minutes.” (Appellant’s App. p. 84).

      He took some over the counter pain reliever and continued to play. There was

      no damage to either golf cart as a result of the incident.


      Court of Appeals of Indiana | Opinion 31A04-1605-CT-1037 | November 15, 2016   Page 3 of 14
[6]   After completing the play on the eighteenth hole, Malles drove Wooten to the

      clubhouse where Wooten informed course attendants about the accident.

      Malles and Wooten did not enter the clubhouse but instead waited in their golf

      cart for the arrival of the EMTs, while parked under a canopy outside. By this

      time, Wooten was also experiencing blurred vision. After examining Wooten,

      the EMTs diagnosed him with whiplash and cleared him to play without any

      further treatment. Wooten participated in the remainder of the tournament,

      with his team winning first place. Because of continuing pain, Wooten checked

      himself into the hospital on August 24, 2012, where he was diagnosed with a

      neck sprain and strain.


[7]   On November 20, 2013, Wooten filed his Complaint sounding in negligence

      against Caesars, Chamernik, and Malles. Malles was subsequently dismissed

      from the cause on February 24, 2016, and Wooten settled with Caesars. On

      February 26, 2016, Chamernik filed his motion for summary judgment,

      memorandum in support thereof, and designation of evidence. Wooten filed a

      reply on March 14, 2016. On April 1, 2016, the trial court conducted a hearing

      on Chamernik’s summary judgment motion, which was summarily granted on

      April 15, 2016.


[8]   Wooten now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

                                             I. Standard of Review




      Court of Appeals of Indiana | Opinion 31A04-1605-CT-1037 | November 15, 2016   Page 4 of 14
[9]    Summary judgment is appropriate only when there are no genuine issues of

       material fact and the moving party is entitled to a judgment as a matter of law.

       Ind. Trial Rule 56(C). “A fact is material if its resolution would affect the

       outcome of the case, and an issue is genuine if a trier of fact is required to

       resolve the parties’ differing accounts of the truth . . . , or if the undisputed facts

       support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756,

       761 (Ind. 2009).


[10]   In reviewing a trial court’s ruling on summary judgment, this court stands in the

       shoes of the trial court, applying the same standards in deciding whether to

       affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

       891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

       must determine whether there is a genuine issue of material fact and whether

       the trial court has correctly applied the law. Id. at 607-08. In doing so, we

       consider all of the designated evidence in the light most favorable to the non-

       moving party. Id. at 608. The party appealing the grant of summary judgment

       has the burden of persuading this court that the trial court’s ruling was

       improper. Id. When the defendant is the moving party, the defendant must

       show that the undisputed facts negate at least one element of the plaintiff’s

       cause of action or that the defendant has a factually unchallenged affirmative

       defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary

       judgment must be reversed if the record discloses an incorrect application of the

       law to the facts. Id.




       Court of Appeals of Indiana | Opinion 31A04-1605-CT-1037 | November 15, 2016   Page 5 of 14
[11]   We observe that in the present case, the trial court did not enter findings of fact

       and conclusions of law in support of its judgment. Special findings are not

       required in summary judgment proceedings and are not binding on appeal.

       AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.

       App. 2004). However, such findings offer this court valuable insight into the

       trial court’s rationale for its judgment and facilitate appellate review. Id.


                                                    II. Analysis


[12]   Wooten contends that the trial court erred when it granted summary judgment

       to Chamernik on Wooten’s negligence Complaint. In particular, Wooten

       asserts that the designated evidence establishes that Chamernik’s action during

       the golf game was outside the range of ordinary behavior of participants in golf.


[13]   In order to prevail on a claim of negligence, a plaintiff is required to prove: (1)

       a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the

       defendant; and (3) an injury to the plaintiff proximately caused by the breach.”

       Peters v. Forster, 804 N.E.2d 736, 738 (Ind. 2004). In negligence cases, summary

       judgment is “rarely appropriate.” Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind.

       2004). “This is because negligence cases are particularly fact sensitive and are

       governed by a standard of the objective reasonable person—once best applied

       by a jury after hearing all of the evidence.” Id. Nevertheless, a defendant is

       entitled to judgment as a matter of law when the undisputed material facts

       negate at least one element of the plaintiff’s claim. Id. at 385.




       Court of Appeals of Indiana | Opinion 31A04-1605-CT-1037 | November 15, 2016   Page 6 of 14
[14]   The duty of care owed by participants in athletic events was recently addressed

       by our supreme court in its pivotal opinion of Pfenning v. Lineman, 947 N.E.2d

       392 (Ind. 2011), which settled Indiana case law’s diverse approaches to liability

       for sport injuries. In Pfenning, Cassie Pfenning was injured by a golf ball at a

       golf outing when she was sixteen years old. Id. at 396. At the time of the

       incident, Pfenning drove a beverage cart and after making several trips around

       the golf course “was suddenly struck in the mouth by a golf ball while driving

       the beverage cart on the cart path approaching the eighteenth hole’s tee pad

       from its green.” Id. at 397. The ball was a low drive from the sixteenth tee

       approximately eighty yards away. Id. The golfer’s drive traveled straight for

       approximately sixty to seventy yards and then severely hooked to the left. Id.

       The golfer noticed the roof of another cart in the direction of the shot and

       shouted “fore.” Id. But neither the plaintiff nor her beverage-serving

       companion heard anyone shout “fore.” Id. After hearing a faint yelp, the

       golfer ran in the direction of the errant ball and discovered the plaintiff with

       injuries to her mouth, jaw, and teeth. Id.


[15]   Pfenning brought an action against Lineman, the golfer who hit the ball that

       struck her. Id. at 396. Lineman sought summary judgment on the ground that

       he could not be held liable under a negligence theory because the plaintiff was a

       co-participant in the sporting event, and her injuries resulted from an inherent

       risk of the sport. Id. at 398. The trial court granted summary judgment in favor

       of the defendant. Id. at 396. On appeal, our supreme court “reject[ed] the

       concept that a participant in a sporting event owes no duty of care to protect

       Court of Appeals of Indiana | Opinion 31A04-1605-CT-1037 | November 15, 2016   Page 7 of 14
       others from inherent risks of the sport,” and adopted “instead the view that

       summary judgment is proper when the conduct of a sports participant is within

       the range of ordinary behavior of participants in the sport and therefore is

       reasonable as a matter of law.” Id. at 396.


[16]   The supreme court held:

               We conclude that sound judicial policy can be achieved within
               the framework of existing Indiana statutory law and
               jurisprudence. As noted previously, there are three principal
               elements in a claim for negligence: duty, breach of duty, and a
               proximately caused injury. When there is no genuine issue of
               material fact and any one of these elements is clearly absent,
               summary judgment is appropriate. But rather than focusing
               upon the inherent risks of a sport as a basis for finding no duty,
               which violates Indiana statutory and decisional law, the same
               policy objectives can be achieved without inconsistency with
               statutory and case law by looking to the element of breach of
               duty which is determined by the reasonableness under the
               circumstances of the actions of the alleged tortfeasor. Breach of
               duty usually involves an evaluation of reasonableness and thus is
               usually a question to be determined by the finder of fact in
               negligence cases. But in cases involving sports injuries, and in
               such cases only, we conclude that a limited new rule should
               apply acknowledging that reasonableness may be found by the
               court as a matter of law. As noted above, the sports participant
               engages in physical activity that is often inexact and imprecise
               and done in close proximity to others, thus creating an enhanced
               possibility of injury to others. The general nature of the conduct
               reasonable and appropriate for a participant in a particular
               sporting activity is usually commonly understood and subject to
               ascertainment as a matter of law. []
               We hold that, in negligence claims against a participant in sports
               activity, if the conduct of such participant is within the range of

       Court of Appeals of Indiana | Opinion 31A04-1605-CT-1037 | November 15, 2016   Page 8 of 14
               ordinary behavior of participants in the sport, the conduct is
               reasonable and does not constitute a breach of duty.
               In any sporting activity, however, a participant’s particular
               conduct may exceed the ambit of such reasonableness as a matter
               of law if the participant either intentionally caused injury or
               engaged in reckless conduct. Such intentional or reckless
               conduct may be found to be a breach of duty.
       Id. at 403-04 (internal references and footnote omitted). Turning to the facts

       before it, the Pfenning court found that “hitting an errant drive” and “a golfer’s

       yelling ‘fore’ or failure to do so, and the manner of doing so,” fell within the

       range of ordinary behavior for golfers. Id. at 404.


[17]   Following Pfenning, this court issued Welch v. Young, 950 N.E.2d 1283 (Ind. Ct.

       App. 2011), which addressed the issue whether a batter’s practice swings were

       within the range of ordinary behavior of participants in baseball. Welch, a little

       league “team mom,” was injured when a young batter was warming up with

       practice swings outside the dugout. Id. at 1285. The bat hit Welch’s knee. Id.

       Granting summary judgment for the batter, the trial court concluded that, as a

       “team mom,” Welch was a participant who “incurred the risk of injury when

       she stood in the area between the dugout and the opening in the fence.” Id. at

       1285-86. Therefore, Welch’s injury was “due to risks inherent in the sporting

       event[.]” Id. at 1286.


[18]   Applying the new guidelines for sports injuries in a negligence action, the Welch

       court noted on appeal that “[a]fter Pfenning, then, the analysis of an injury like

       that before us is based not on the status of the plaintiff as a participant or

       spectator, or her incurrence of risk. Rather, the analysis should address

       Court of Appeals of Indiana | Opinion 31A04-1605-CT-1037 | November 15, 2016   Page 9 of 14
whether the conduct of the defendant is within the range of ordinary behavior

of participants in the sport.” Id. at 1289. Because our supreme court “offered

little guidance as to the meaning of its new rule,” the court looked at “other

courts for helpful insights.” Id. As such, the Welch court was mindful that

“physical contact is an inherent or integral part of the game in many sports.

The degree of physical contact allowed varies from sport to sport and even from

one group of players to another.” Id. (citing Crawn v. Campo, 643 A.2d 600, 605

(N.J. 1994)). Guided by the New Hampshire Supreme Court, the Welch court


        noted a number of factors that may help determine the
        reasonableness of behavior by participants, sponsors, and
        organizers of recreational athletics: (1) the nature of the sport
        involved; (2) the type of contest, i.e., amateur, high school, little
        league, pick-up, etc.; (3) the ages, physical characteristics, and
        skills of the participants; (4) the type of equipment involved; and
        (5) the rules, customs, and practices of the sport, including the
        types of contact and the level of violence generally accepted.
Id. (citing Allen v. Dover Co-Recreational Softball League, 807 A.2d 1274, 1285-86

(N.H. 2002)). Upon appellate review, the decision of the trial court was

reversed, as the court was “faced with factual issues about ‘the conduct of [the]

participant’ that preclude[d] our determination whether, as a matter of law, his

conduct was ‘within the range of ordinary behavior of participants in the

sport.’” Id. (citing Pfenning, 947 N.E.2d at 404). Specifically, we noted the

factual issues as to whether the injury took place on the field or outside the




Court of Appeals of Indiana | Opinion 31A04-1605-CT-1037 | November 15, 2016   Page 10 of 14
       playing area, and whether the game was underway or had not yet started. Id. at

       1292. 2


[19]   Focusing on the designated evidence, Wooten contends that “[c]rashing a golf

       cart into another golf cart is not within the range of ordinary behavior.”

       (Appellant’s Br. p. 8). He maintains that because “golf carts are not necessary

       for playing the game of golf[,] it cannot be said that golf-cart activities are

       ordinary behavior or are an inherent risk in the game of golf.” (Appellant’s Br.

       p. 8).


[20]   As the sport gained in popularity within the last couple of years, the use of golf

       carts in golf outings has become ubiquitous and a rather mundane occurrence

       on the fairway because walking “would just slow things up.” (Appellant’s App.

       p. 134). As recognized by Justice Stevens in PGA Tour, Inc. v. Martin, 532 U.S.

       661, 683, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001):

                 As an initial matter, we observe that the use of carts is not itself
                 inconsistent with the fundamental character of the game of golf. From
                 early on, the essence of the game has been shotmaking—using clubs to
                 cause a ball to progress from the teeing ground to a hole some distance
                 away with as few strokes as possible. . . . Originally, so few clubs were
                 used that each player could carry them without a bag. Then came golf
                 bags, caddies, carts that were pulled by hand, and eventually
                 motorized carts that carried players as well as clubs. Golf carts started
                 appearing with increasing regularity on American golf courses in the
                 1950’s. Today they are everywhere. And they are encouraged. For
                 one thing, they often speed up play, and for another, they are great



       2
        The most recent pronouncement in this area of law is Megenity v. Dunn, 55 N.E.3d 367 (Ind. Ct. App. 2016),
       which was granted transfer by our supreme court on September 1, 2016.

       Court of Appeals of Indiana | Opinion 31A04-1605-CT-1037 | November 15, 2016                  Page 11 of 14
               revenue producers. There is nothing in the Rules of Golf that either
               forbids the use of carts or penalizes a player for using a cart. That set
               of rules, as we have observed, is widely accepted in both the amateur
               and professional golf world as the rules of the game.
[21]   At Chariot Run, “[a]ll the teams in this particular golf scramble were using

       carts” provided by Caesars. (Appellant’s App. p. 134). When Wooten’s team

       arrived at the fourteenth hole, they all teed off from a blind shot. Trying to

       locate where their golf balls had landed, Malles and Wooten rode ahead in their

       cart, while Chamernik followed behind in the second cart, and North walked

       the fairway in search for his ball which might have landed in the creek. In his

       designated deposition, Chamernik testified that “as we’re coming over the hill

       my focus in on the fairway to see where my shot was and how close it was to

       the green.” (Appellant’s App. p. 115). He explained that it is not “unusual for

       a golfer to look for the ball from the cart” and is “part of the game.”

       (Appellant’s App. p. 134). Malles affirmed that “[i]t is common part of the

       game of golf for golfers to look for their ball while operating a golf cart on the

       course.” (Appellant’s App. p. 141).


[22]   However, by the time Chamernik “looked back straight ahead,” he noticed that

       Malles and Wooten “had stopped [] and that’s when [he] hit their cart.”

       (Appellant’s App. pp. 115-16). Malles confirmed that Chamernik “struck the

       rear of [his] golf cart at a low rate of speed while [he] was stopped.”

       (Appellant’s App. p. 141). Wooten testified in his deposition that he did not

       “know how fast [Chamernik] was going,” but the impact “did not move [the

       cart] dramatically.” (Appellant’s App. pp. 81, 82). Wooten conceded that he

       has “been at golf courses before [] where people bump into you a little bit, and
       Court of Appeals of Indiana | Opinion 31A04-1605-CT-1037 | November 15, 2016    Page 12 of 14
       it’s no big deal.” (Appellant’s App. p. 99). He clarified that “I don’t recall how

       many times [I’ve been in a golf cart accident] but anybody that’s played golf a

       lot, the person behind them has eased up into them and bumped the cart.”

       (Appellant’s App. p. 99). Malles “did not see any damage to either golf cart,

       nor did Wooten “complain to [him] about tinnitus or blurred vision after the

       accident.” (Appellant’s App. p. 141).


[23]   As noted by our Supreme Court, the golf cart has become part and parcel of the

       modern golf game, with an unremitting presence on the fairway. Wooten

       himself admitted that it has become common and expected for golf carts to

       bump into each other. Accordingly, even though incidents of this sort might be

       actionable during non-golf related activities, this conduct, like hitting an errant

       drive or the lack of yelling ‘fore’ in Pfenning, has now become “within the range

       of ordinary behavior of participants” in golf and therefore, as a matter of law, it

       cannot support a claim for negligence. See Pfenning, 947 N.E.2d at 404.

       However, “[i]n any sporting activity, a participant’s particular conduct may

       exceed the ambit of such reasonableness as a matter of law if the participant

       either intentionally caused injury or engaged in reckless conduct.” Id. at 404.

       Nevertheless, the designated evidence fails to establish any recklessness or

       intent on the part of Chamernik when driving the golf cart. While Wooten did

       not notice Chamernik’s speed, Malles testified that the cart was struck in the

       rear “at a low rate of speed.” (Appellant’s App. p. 2). Wooten only confirmed

       that its impact did not move the cart dramatically. There is no evidence that




       Court of Appeals of Indiana | Opinion 31A04-1605-CT-1037 | November 15, 2016   Page 13 of 14
       Chamernik had been involved in any horseplay or other questionable behavior

       while driving the golf cart.


[24]   Acknowledging the policy considerations on which Pfenning is grounded, we

       recognize that encouragement to participate in golf implicitly discourages

       excessive litigation of claims by persons who suffer injuries from participants’

       conduct. The inclusion of golf carts in the sport is “commonly understood” and

       while an inexact operation of a cart may somewhat “increase the normal risks

       attendant to the activities of ordinary life outside the sports arena, it does not

       render unreasonable the ordinary conduct” within the golf game, in the absence

       of intent or recklessness. See id. at 403. Therefore, we affirm the trial court’s

       summary judgment in favor of Chamernik.


                                               CONCLUSION

[25]   Based on the foregoing, we conclude that the trial court properly entered

       summary judgment on Chamernik’s motion.


[26]   Affirmed.


[27]   Bailey, J. and Barnes, J. concur




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