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



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C** **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX 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 .** 
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 23 rd** **day of April, two thousand fourteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **GUIDO CALABRESI,** 7 **DEBRA ANN LIVINGSTON,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **MINHO HAHN,** 12 **Plaintiff-Appellant ,**  13 14 **-v.- 13-2129-cv** 15 16 **TOWN OF WEST HAVERSTRAW, NY, d/b/a** 17 **PHILIP J. ROTELLA MEMORIAL GOLF** 18 **COURSE,** 19 **Defendant-Appellee**

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1 The Clerk of Court is ordered to amend the caption as above.

1**FOR APPELLANT:** Michael S. Kimm and Francesco A. 1 Savoia Kimm Law Firm, Englewood 2 Cliffs, New Jersey. 3 4 **FOR APPELLEE:** Anna J. Ervolina, Morris Duffy 5 Alonso & Faley, New York, New 6 York. 7 8 Appeal from a judgment of the United States District 9 Court for the Southern District of New York (Briccetti, J. ). 10 11 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 12 **AND DECREED**that the judgment of the district court be 13
**AFFIRMED**

. 14 15 Minho Hahn appeals from a judgment of the United States 16 District Court for the Southern District of New York 17 (Briccetti, J. ), granting summary judgment in favor of 18 defendant-appellee

. We assume the parties’ familiarity with 19 the underlying facts, the procedural history, and the issues 20 presented for review. 21 22 Hahn is an experienced golfer who has played at least 23 twice a week during the golfing season for the twenty years 24 preceding the accident. Hahn brought this diversity action 25 for damages against the Town of West Haverstraw (the 26 “Town”), alleging the Town’s negligent maintenance and 27 design of the Philip J. Rotella Memorial Golf Course 28 (“Rotella Memorial”) caused him to suffer injuries in a 29 runaway golf-cart in July 2010. 30 31 After Hahn and some friends teed off at Hole Five, the 32 group proceeded along the path and down a slope toward the 33 green in two golf carts. Two of Hahn’s friends rode 34 together in one cart, and Hahn traveled alone behind. Hahn 35 testified at his deposition that the cart path looked as it 36 did in the past and that he proceeded down the hill “as 37 usual.” J.A. 187-88. The right front wheel of his cart 38 struck a stone seven to eight inches in diameter, causing 39 the wheel of the cart to turn left, carrying him about 40 thirty feet down an eighteen-to-twenty-two degree slope and 41 into a tree. The collision with the tree injured Hahn’s 42 knee and leg. 43 44 Hahn claims the Town was negligent in (1) allowing the 45 rock or piece of debris to remain on the cart path, or (2) 46

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

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

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.

4789 N.Y.S.2d at 200-01. The expert report, therefore, was 1 legally insufficient. 2 3 For the foregoing reasons, and finding no merit in 4 Hahn’s other arguments, we hereby **AFFIRM** the judgment of the 5 district court. 6 7 FOR THE COURT: 8 CATHERINE O’HAGAN WOLFE, CLERK 9 10

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