     13-2129-cv
     Hahn v. Town of West Haverstraw

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 23rd day of April, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                DEBRA ANN LIVINGSTON,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       MINHO HAHN,
13                Plaintiff-Appellant,
14
15                    -v.-                                               13-2129-cv
16
17       TOWN OF WEST HAVERSTRAW, NY, d/b/a
18       PHILIP J. ROTELLA MEMORIAL GOLF
19       COURSE,
20                Defendant-Appellee.1
21       - - - - - - - - - - - - - - - - - - - -X
22




                1
                      The Clerk of Court is ordered to amend the caption
         as above.
                                                  1
 1   FOR APPELLANT:             Michael S. Kimm and Francesco A.
 2                              Savoia Kimm Law Firm, Englewood
 3                              Cliffs, New Jersey.
 4
 5   FOR APPELLEE:              Anna J. Ervolina, Morris Duffy
 6                              Alonso & Faley, New York, New
 7                              York.
 8
 9        Appeal from a judgment of the United States District
10   Court for the Southern District of New York (Briccetti, J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the judgment of the district court be
14   AFFIRMED.
15
16        Minho Hahn appeals from a judgment of the United States
17   District Court for the Southern District of New York
18   (Briccetti, J.), granting summary judgment in favor of
19   defendant-appellee. We assume the parties’ familiarity with
20   the underlying facts, the procedural history, and the issues
21   presented for review.
22
23        Hahn is an experienced golfer who has played at least
24   twice a week during the golfing season for the twenty years
25   preceding the accident. Hahn brought this diversity action
26   for damages against the Town of West Haverstraw (the
27   “Town”), alleging the Town’s negligent maintenance and
28   design of the Philip J. Rotella Memorial Golf Course
29   (“Rotella Memorial”) caused him to suffer injuries in a
30   runaway golf-cart in July 2010.
31
32        After Hahn and some friends teed off at Hole Five, the
33   group proceeded along the path and down a slope toward the
34   green in two golf carts. Two of Hahn’s friends rode
35   together in one cart, and Hahn traveled alone behind. Hahn
36   testified at his deposition that the cart path looked as it
37   did in the past and that he proceeded down the hill “as
38   usual.” J.A. 187-88. The right front wheel of his cart
39   struck a stone seven to eight inches in diameter, causing
40   the wheel of the cart to turn left, carrying him about
41   thirty feet down an eighteen-to-twenty-two degree slope and
42   into a tree. The collision with the tree injured Hahn’s
43   knee and leg.
44
45        Hahn claims the Town was negligent in (1) allowing the
46   rock or piece of debris to remain on the cart path, or (2)


                                  2
 1   failing to install a guardrail along that portion of the
 2   cart path.
 3
 4        We review an award of summary judgment de novo,
 5   resolving all ambiguities and drawing all inferences in
 6   favor of the non-movant, and we will affirm only if the
 7   record reveals no genuine dispute of material fact. See
 8   Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477
 9   U.S. 242, 247-48 (1986); Nagle v. Marron, 663 F.3d 100,
10   104-05 (2d Cir. 2011).
11
12        To prevail on a negligence claim under New York law, a
13   plaintiff must show (1) a duty owed by defendants to
14   plaintiff, (2) a breach of that duty, and (3) injuries
15   proximately caused by the breach. Stagl v. Delta Airlines,
16   Inc., 52 F.3d 463, 467 (2d Cir. 1995). Having reviewed the
17   record de novo, we affirm for substantially the same reasons
18   stated by the district court in its thorough and
19   well-reasoned Memorandum Decision of April 3, 2013. See
20   Hahn v. Town of Haverstraw, No. 11-cv-1635, 2013 U.S. Dist.
21   LEXIS 56468 (S.D.N.Y. Apr. 3, 2013).
22
23        As the district court ruled, this suit is barred by the
24   doctrine of primary assumption of risk. A voluntary
25   participant in a sporting or entertainment pursuit “consents
26   to the risk of ‘those injury-causing events which are known,
27   apparent or reasonably foreseeable consequences of the
28   participation.’” Sedita v. City of New York, 777 N.Y.S.2d
29   327, 327 (App. Div. 2004) (quoting Turcotte v. Fell, 68
30   N.Y.2d 432, 439 (App. Div. 1986)). “[T]he inquiry into
31   whether an individual has assumed the risks inherent in a
32   sport or recreational activity ‘includes consideration of
33   the participant’s knowledge and experience in the activity
34   generally.’” Goodlett v. Kalishek, 223 F.3d 32, 36 (2d Cir.
35   2000)(quoting Turcotte, 68 N.Y.2d at 440). The doctrine is
36   applied “[c]onsistent with [its] justification”: to
37   “facilitate[] free and vigorous participation in athletic
38   activities, and [to] foster[] these socially beneficial
39   activities by shielding coparticipants, activity sponsors or
40   venue owners from potentially crushing liability.” Custodi
41   v. Town of Amherst, 20 N.Y.3d 83, 88, 980 N.E.2d 933, 935
42   (N.Y. 2012) (citation and internal modification omitted).
43
44        The undisputed evidence demonstrates that the cart path
45   was an open and obvious part of the golf course terrain.
46   Its conditions, including the steepness of the hill and the
47   potential for small hazards to appear on the path, surely

                                  3
 1   were well known to Hahn, who had played at Rotella Memorial
 2   and traversed the cart path (and countless others like it)
 3   numerous times before the accident. There is no genuine
 4   dispute that the topography of Rotella Memorial was open and
 5   obvious (certainly to the experienced Hahn), and Hahn’s risk
 6   of injury while driving on the cart path was inherent in his
 7   choice to play his round of golf with the aid of a golf
 8   cart. See, e.g., Anand v. Kapoor, 942 N.E.2d 295, 296-97
 9   (N.Y. 2010) (“[T]he manner in which Anand was injured--being
10   hit without warning by a ‘shanked’ shot while one searches
11   for one’s own ball--reflects a commonly appreciated risk of
12   golf.”); Barbato v. Hollow Hills Country Club, 789 N.Y.S.2d
13   199, 200 (N.Y. App. Div. 2005) (holding that plaintiff, “an
14   experienced golfer who had played on the defendant’s golf
15   course on numerous prior occasions,” was barred from
16   recovery for injuries sustained by slipping on wet grass
17   near a putting green, because he had “voluntarily assumed
18   the risk of injury by playing on the wet surface”); Egeth
19   v. County of Westchester, 614 N.Y.S.2d 763, 763-64 (App.
20   Div. 1994) (holding that plaintiff assumed risk of injury
21   when walking over mound of earth between putting green and a
22   cart path, given plaintiff’s general familiarity with the
23   course from previous rounds). We agree with the district
24   court that Hahn had assumed the risk of this particular type
25   of golf-cart accident.2
26
27        The expert report submitted by Hahn raises no triable
28   issue of fact. Hahn’s expert concluded that a guardrail
29   should have been installed based solely on recommendations
30   from golf cart manufacturers. However, that expert does
31   not articulate how golf cart manufacturers’ recommendations
32   set a specific industry standard for golf course designers.
33   See Lombardo v. Cedar Brook Golf & Tennis Club, Inc., 834
34   N.Y.S.2d 326, 327 (App. Div.) (granting summary judgment
35   when plaintiff’s expert did not identify “any specific
36   industry standard upon which he relied in concluding that
37   the defendant negligently designed the course”); Barbato,



         2
              The very recent decision of the Appellate
     Division, Third Department, in Rose v. Tee-Bird Gold Club,
     Inc., No. 516687, 2014 N.Y. Slip Op. 2481 (April 10, 2014),
     is not to the contrary. That case turned on a question of
     fact as to whether the golf cart there involved had bald
     tires, which the court held is not a normal danger
     associated with golfing.
                                  4
 1   789 N.Y.S.2d at 200-01.   The expert report, therefore, was
 2   legally insufficient.
 3
 4        For the foregoing reasons, and finding no merit in
 5   Hahn’s other arguments, we hereby AFFIRM the judgment of the
 6   district court.
 7
 8                               FOR THE COURT:
 9                               CATHERINE O’HAGAN WOLFE, CLERK
10




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