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,

on the 23rd 4 day of April, two thousand fourteen.

5

6 PRESENT: DENNIS JACOBS, 

7 GUIDO CALABRESI,

8 DEBRA ANN LIVINGSTON,

9 Circuit Judges.

10

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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, 

Defendant-Appellee.1 20

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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

of golf-cart accident.2 25 

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

5