Opinion
99/2446.
Decided July 7, 2006.
THOMAS C. PARES, ESQ., Attorney for Plaintiff.
STEPHEN SORRELS, ESQ., Attorney for Defendant.
This action arose from an accident on February 11, 1998 when the plaintiff, Giles Manias (Manias), fell from the upper deck of the indoor golf driving range at Golden Bear Golf Center (Golden Bear), Williamsville, New York. As a result of this incident, Manias was severely injured. The upper deck of the driving range was a platform approximately 200 feet long and 12 feet high above the lower deck. It had about 24 practice areas, 8 to 9 feet wide with dividers separating each area. Golfers hit off mats in each practice area. The center of the mat was approximately four feet from the front edge of the upper platform. The front edge of the hitting mat was about two feet from the front edge of the platform. There is a nylon net, which extends out from the front edge of the upper platform about three to four feet. A steel cable runs from I beam to I beam along both the inner and outer parts of the net for the length of the platform. The netting was connected to the steel cables with plastic cable ties. The netting was checked daily. According to Michael Seaman (Seaman), manager of Golden Bear on February 11, 1998, the purpose of the netting was to protect and catch someone if they fell from the upper deck, and to catch golf balls. Seaman believed that the weight bearing capacity of the twist ties was 400 pounds in any single hitting area.
Manias, a 63 year old attorney, had been a golfer for a number of years, and had a handicap of between 18 and 16 strokes. He and a client, John Santa Lucia (Santa Lucia), went to Golden Bear the afternoon of February 11, 1998, when a legal proceeding both were involved in was cancelled. Manias was wearing a suit, shirt, tie and dress shoes. The lower hitting area of Golden Bear was full, so Manias went to the upper platform with golf clubs and a bucket of balls. According to Manias, he was having difficulties with his swing, causing him to hit the golf balls into the roof of the golf dome. He believed the difficulty was caused by improper weight transfer, and he then began practicing transferring his weight forward to the left side, when striking the ball. On one swing, he attempted to shift his weight forward, lost his balance going forward, and his weight continued to carry him over the edge. When Manias hit the net, he went right through it, and landed on the lower level hitting area. Santa Lucia observed Manias fall, and saw him go through the netting. It appears that the cable ties holding the net in place broke, causing the net to fail and break away from the steel cables, causing Manias to fall to the groung below.
Manias alleged generally in his complaint that the accident and his resultant injuries were caused solely by Golden Bear's negligence. In Manias' verified bill of particulars he maintains that the upper golf range platform constituted a defective, dangerous and unsafe condition, in that this area was "defectively designed, manufactured and constructed." The conditions at Golden Bear alleged by Manias included using netting incapable of supporting a person falling into it, securing the netting with plastic cable ties, which would not support the weight of a person, and failing to pad the steel I beams holding the netting. Manias further claims that, among the defects involved, are those of the materials used.
The Court has before it Golden Bear's motion for summary judgment dismissing the complaint. Golden Bear maintains that Manias assumed the risk inherent in his participating in hitting golf balls from the upper deck of a driving range. It further alleges that dismissal is warranted because Golden Bear did not design or construct the driving range, nor is there any evidence of any defect in the design or construction of the driving range.
Manias has submitted the expert affidavit of Wallace J. Ochterski, P.E. (Ochterski), a licensed Professional Engineer in New York State, in opposition to Golden Bear's motion. Ochterski received a Bachelor of Civil Engineering degree from Rensselaer Polytechnic Institute and a Masters degree in Business Administration from Canisius College. His is a forensic engineer, and operates an accident reconstruction and technical consulting firm. Prior to preparing his affidavit and rendering an opinion, Ochterski reviewed Golden Bear's summary judgment motion, Manias' deposition, various statements of people familiar with the accident, and several photographs of the accident scene depicting the netting configuration and plastic twist ties.
Ochterski refers to the New York State Uniform Fire Prevention and Building Code which requires landings, such as the upper platform of Golden Bear, be provided with guardrails on the open sides. Since a guardrail would interfere with hitting golf balls, Ochterski states that golf driving ranges use a net at the edge of the upper deck to prevent people from falling, which would comply with the building code. This would be consistent with Seaman's testimony as to the two fold purpose of the net. Ochterski notes that white plastic cable ties were used at Golden Bear to attach the net onto the supporting steel cable. According to Ochterski, plastic cable ties "are designed to wrap and manage communication cables, wires and hoses and are not recommended for any structural or human restraining use." Furthermore, white plastic cable ties are usually made of nylon, which, over time, becomes brittle. Seaman's testimony indicated that the cable ties at Golden Bear were the ones from the original construction, around 1994. Ochterski asserts that the Golden Bear cable ties lost their strength over the years, and were unable to hold Manias. He referred to OSHA regulations, which require nets, such as Golden Bear's, to be fastened to its supports with forged steel safety hooks or shackles. Ochterski contacted the largest golf netting manufacturers in the United States, and was advised that the netting was to be installed with only steel carabiner clips, steel shackles, or steel "O" rings. The manufacturers maintained that the use of plastic cable ties would be "ineffective and unsafe." It was Ochterski's professional engineering opinion, to a reasonable degree of engineering certainty, that the "plastic cable ties used to connect the net with the steel cable to the structural frame of the elevated golf driving range were an inferior material, a violation of regulator (sic) standards, not in accord with netting manufacturers recommendations, and are not manufactured for this type of usage or environment. Ochterski further opined that the net failed to hold Manias because "the wrong device was used to tie the net to the structural steel cable." Ochterski also maintained that the cable ties at Golden Bear had become brittle from age, thereby losing their initial tensile strength, which caused them to snap when Manias' weight load hit the netting.
A participant in a sport or a recreational activity assumes those risks which are inherent in and arise out of the nature of the sport or recreational activity, and generally flow from such participation ( Morgan v. State of New York, 90 NY2d 471). The critical inquiry is whether the condition causing the accident is unique, creating a hazard over and above those usual dangers inherent in the sport. While being struck in the head with a golf ball or tripping in a divot may be a risk inherent in the game of golf, the Court believes a question of fact exists as to whether falling from the upper platform of a golf driving range is inherent to the sport or recreational activity. This is especially so when one of the purposes of the netting was to catch anyone who might lose their balance and fall from the upper platform. The presence of the netting could certainly have created a false sense of security for anyone on the upper deck, that they would be protected in the event of a fall. Even assuming that falling from the upper deck and landing in the net was an inherent risk at the driving range, Ochterski's affidavit raises an issue of fact as to whether the use of nylon cable ties created a risk beyond the initial inherent risk. Thus, a defectively attached net, does not seem to be sufficiently intertwined into an assumed inherent risk. The facts here seem quite similar to those in Siegel v. City of New York, decided in Morgan v. State of New York, 90 NY2d 471. In Siegel the plaintiff tripped and was injured by a torn net separating indoor tennis courts. The Court noted that while such a net was inherently part of participation in tennis at indoor facilities, a torn or damaged net or other safety feature was not automatically an inherent risk of the sport as a matter of law for summary judgment purposes. Instead it could constitute an allegedly negligent condition occurring in the ordinary course of any property's maintenance and may implicate typical comparative negligence principles ( Morgan, 90 NY2d at 488). Here, the allegedly improperly secured safety feature on the upper platform, the netting, is not automatically an inherent risk as a matter of law.
Although, it does not appear that Golden Bear was responsible for the design or construction of the indoor driving range, this does not relieve it of its duty to use reasonable care in maintaining its property in a reasonably safe condition to prevent the occurrence of foreseeable injuries to people on the property ( Basso v. Miller, 40 NY2d 233). It seems clear that it was foreseeable to Golden Bear that someone could fall from the upper platform, since Seaman acknowledged that one of the purposes of the netting was to catch anyone who might fall. Ochterski's affidavit raises a significant question of fact as to whether Golden Bear used reasonable care in maintaining its property, by the use of white nylon cable ties to attach the netting. According to Ochterski, these were inadequate and improper for the purpose intended. Furthermore, the propriety of the use of cable ties and their inspection and maintenance raises issues of fact as to whether their use caused or contributed to the accident and Manias' injuries.
For the reasons set forth herein, Golden Bear's motion for summary judgment must be denied.
SO ORDERED: