                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-2502



TIM R. MARTINS,

                                              Plaintiff - Appellant,

          versus


KEMPER SPORTS MANAGEMENT, INCORPORATED,

                                              Defendant - Appellee,

          and


BECHTEL CORPORATION,

                                                           Defendant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (CA-03-2109-WMN)


Submitted:   January 27, 2006          Decided:     February 28, 2006


Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David   L.  Kwass,   SALTZ,  MONGELUZZI,  BARRETT  &   BENDESKY,
Philadelphia, Pennsylvania, for Appellant. Michael P. Chervenak,
HARTEL, KANE, DESANTIS, MACDONALD & HOWIE, L.L.P., Greenbelt,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

          Tim R. Martins claims that Kemper Sports Management, Inc.

(“Kemper”) breached its duty of care by not installing proper

safety barriers between tee boxes at Holly Hills Country Club

(“Holly Hills”) in Maryland.   We have reviewed the record and find

no reversible error.

          Martins claims the district court erred when it granted

Kemper’s motion for summary judgment.1   This court reviews de novo

a district court’s order granting summary judgment.       Price v.

Thompson, 380 F.3d 209, 212 (4th Cir. 2004).

          Under Maryland law, a cause of action in negligence must

demonstrate “(1) that the defendant was under a duty to protect the

plaintiff from injury, (2) that the defendant breached that duty,

(3) that the plaintiff suffered actual injury or loss, and (4) that

the loss or injury proximately resulted from the defendant's breach

of the duty.”   Rhaney v. University of Maryland Eastern Shore, 880

A.2d 357, 363-64 (Md. 2005).

          Martins was a business invitee on Kemper’s business

premises. In Maryland, a business owner owes a business invitee “a

duty to use reasonable and ordinary care to keep the premises safe

and to protect the invitee from injury caused by an unreasonable

risk which the invitee, by exercising ordinary care for his own



     1
      Martins did not appeal the district court’s order granting
summary judgment for Bechtel Corporation.

                               - 3 -
safety, will not discover.” Southland Corporation v. Griffith, 633

A.2d 84, 91 (Md. Ct. App. 1993).

           Martins claims that Kemper breached its duty because it

did not install plastic barriers that could have prevented his

injury.    Martins and Kemper agree that there is no industry

standard or law requiring safety barriers on driving ranges.

Kemper’s experts testified that the majority of public driving

ranges do not have plastic barriers and at private country clubs

like Holy Hills barriers are extremely rare.          It is not contested

that Kemper foresaw the possibility of one golfer hitting another

golfer on the driving range.         However, simply because Kemper did

not   install   plastic   barriers    does   not   mean   it   did   not   take

reasonable care to protect golfers on its premises. Indeed, Kemper

installed a barrier that was more protective than the majority of

other ranges.     Because Martins failed to establish that Kemper

breached its duty to take reasonable and ordinary care to protect

its business invitees, the district court did not err in granting

Kemper’s summary judgment motion.2




      2
      We do not address Martins’ claim that Kemper assumed a higher
duty of care by installing the barriers as this claim was raised
for the first time on appeal. See Muth v. United States, 1 F.3d
246, 250 (4th Cir. 1993) (holding that issues raised for the first
time   on   appeal   are  generally   waived   absent   exceptional
circumstances).

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           Accordingly,     we   affirm    the    district   court’s   order

granting Kemper’s motion for summary judgment.             We dispense with

oral   argument   because    the   facts    and    legal   contentions   are

adequately presented in the materials before the court and argument

would not aid the decisional process.



                                                                   AFFIRMED




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