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SECOND DIVISION
June 22, 2004

No. 1-02-2079

 

  
JUSTICE CAHILL delivered the opinion of the court:

We are asked to review a jury verdict finding defendant Palos Country Club, Inc.,negligent for an injury to plaintiff Diane Sullivan-Coughlin when a golf ball allegedly struckplaintiff in the head and caused her to fall out of a golf cart. We affirm.

Maria Shirley, plaintiff's sister, testified at trial that on May 14, 1995, she was golfing withplaintiff and other members of her family at defendant's golf course. Maria and plaintiff shared agolf cart. Once the group finished golfing, Maria drove plaintiff off the course near the ninth hole. As they neared the pro shop and cart return area, Maria heard "a whack." Maria looked over andsaw plaintiff fall out of the cart like a "rag doll" and hit her head on the pavement. Maria believedthe "whack" she heard was a golf ball hitting plaintiff's head. Maria did not see the golf ball.

Plaintiff testified she had no memory of the accident. Since the accident, plaintiff has haddifficulty sleeping and uncontrollable muscle spasms. The injury also affected plaintiff's memoryand coordination.

Dr. Eugene Blonsky testified plaintiff sustained two brain injuries: one on the back leftside of the brain and the second on the front right side of the brain. Dr. Blonsky opined the injuryto the back left side of plaintiff's head occurred first and was consistent with being struck by a golfball.

Felix Lee testified he operated a barbeque pit near the pro shop where players would eat. Lee denied seeing golf balls land in the barbeque pit area. Although Lee heard that golf ballsstruck the pro shop on occasion, he never witnessed this. Lee denied saying the opposite toplaintiff's attorney and investigator.

David Szczecin, an attorney with plaintiff's counsel's firm, testified he spoke with Leebefore trial. Lee told Szczecin that golf balls would land in the barbeque pit area as frequently asonce a week. Lee also said golf balls would often strike the pro shop and cart return areas.

Joseph Mahr testified he was hired by plaintiff as a private investigator. Mahr interviewedLee, who told Mahr that golf balls had "on occasion" bounced into the barbeque pit area.

Sue Sheanon testified she worked in the pro shop. Sheanon often heard golf balls hittingthe roof of the pro shop but never saw a golf ball hit a person in the vicinity of the pro shop. Oncross-examination, Sheanon said golf balls only seldom hit the roof of the pro shop.

Michael Robert Eiben testified as an expert in architecture and the Building Officials andCode Administrators' (BOCA) building code, a model building code adopted by the municipalitywhere defendant's club was located. Over defendant's objection, Eiben opined that the area whereplaintiff was injured was unsafe due to congestion, the number of golf-related activities andproximity to the golf course. Eiben based this opinion on his experience and training inarchitecture, as well as his knowledge of the BOCA code. Eiben believed defendant could havemade the area safe by moving the pro shop, cart return and barbeque pit, areas were peoplecongregate, farther from the course. Alternatively, Eiben said defendant could have constructed a20-foot high barrier between the course and the congested areas. Eiben noted that, althoughdefendant placed a fence near the course to offer some protection, the protection was minimal. On cross-examination, Eiben admitted he lacked experience in golf course design andarchitecture.

Michael John Hurdzan, a golf course architect and designer, testified on behalf ofdefendant and disagreed with Eiben's conclusion that the area of defendant's club where plaintiffwas injured was dangerous. Hurdzan believed the probability that a golf ball caused plaintiff'saccident was less than 1% and construction of a fence to catch golf balls would be superfluous. Hurdzan's opinion was premised on the assumption that golfers used aim when swinging.

Defendant also presented testimony from several physicians who disagreed with the causeand extent of injury advanced by plaintiff. Dr. James Massimillion testified he was plaintiff'semergency room physician. Plaintiff had a laceration on the back left side of her head and internalbleeding near the front part of the skull. Dr. Massimillion opined the injury to the back ofplaintiff's head was made with such force as to cause the internal bleeding in the front of plaintiff'shead. Dr. Massimillion believed that both of plaintiff's injuries were consistent with falling out ofa golf cart onto pavement. Dr. Massimillion was not told plaintiff had been hit by a golf ball, nordid he think plaintiff's injuries were consistent with being hit by a golf ball.

Dr. Gaston G. Celesia, a neurologist, testified he examined plaintiff and did not findphysical, cognitive or neurological abnormalities. Dr. Christopher Randolph, a clinicalneuropsychologist, testified similarly.

Defendant was barred from presenting evidence of plaintiff's blood-alcohol level or thegolf cart rental agreement through plaintiff's pretrial motions in limine. The trial court said itwould revisit its ruling with respect to plaintiff's blood-alcohol level at trial and allow suchevidence if defendant could lay a proper foundation. Defendant did not ask to have the issuerevisited at trial.

The jury found defendant negligent and awarded plaintiff $457,995.13. The jury alsofound plaintiff 30% contributorily negligent and reduced the award to $320,596.60. Defendantmoved for judgment notwithstanding the verdict or, in the alternative, a new trial. The trial courtdenied defendant's motion and defendant appeals.

We begin our analysis with defendant's argument that it was entitled to judgmentnotwithstanding the verdict. We review the trial court's order denying judgment notwithstandingthe verdict de novo and will reverse if the evidence, when viewed in the light most favorable toplaintiff, so overwhelmingly favors defendant that no contrary verdict based on that evidencecould ever stand. See Snelson v. Kamm, 204 Ill. 2d 1, 42, 787 N.E.2d 796 (2003). In makingthis assessment, we will not substitute our judgment for the jury's, reweigh the evidence ordetermine the credibility of witnesses. See Donaldson v. Central Illinois Public Service Co., 199Ill. 2d 63, 89, 767 N.E.2d 314 (2002).

Defendant argues plaintiff failed to establish that defendant owed her a duty of care. Specifically, defendant maintains plaintiff did not offer "competent" evidence that the area whereplaintiff was injured was unreasonably dangerous or that defendant knew or should have knownof such danger.

To recover under a theory of negligence, a plaintiff must prove the defendant owed a duty,the defendant breached that duty and the breach proximately caused the plaintiff's injury. Prochnow v. El Paso Golf Club, Inc., 253 Ill. App. 3d 387, 397, 625 N.E.2d 769 (1993). Whether a duty exists is a question of law. Prochnow, 253 Ill. App. 3d at 397. Factors relevantto finding a duty include reasonable foreseeability, likelihood of injury and the burden on thedefendant to guard against the injury. Prochnow, 253 Ill. App. 3d at 397. Foreseeability is thatwhich is objectively reasonable to expect, not what might conceivably occur. Prochnow, 253 Ill.App. 3d at 397.

Generally, a landowner will not be held liable for an injury caused by a dangerouscondition on the land that is known or obvious. Prochnow, 253 Ill. App. 3d at 397. An exceptionto this rule occurs when the landowner can and should anticipate the injury notwithstanding theknown or obvious nature of the condition. Prochnow, 253 Ill. App. 3d at 397. Anticipation ofinjury from known and obvious dangers may arise when there is reason to expect that an invitee'sattention may be distracted. Prochnow, 253 Ill. App. 3d at 398. "Distracted invitees may notdiscover what is obvious, forget what has been discovered[] or fail to protect themselves againstthe dangerous condition." Prochnow, 253 Ill. App. 3d at 398.

The plaintiff in Prochnow was struck by a golf ball while standing in the deck area of thedefendant's golf club clubhouse. Prochnow, 253 Ill. App. 3d at 390. The court held thedefendant owed the plaintiff a duty because it was reasonably foreseeable that patrons of thedefendant's clubhouse would walk outside to socialize on the deck and be struck by a stray golfball. Prochnow, 253 Ill. App. 3d at 398. The court noted that the deck's proximity to theclubhouse bar and dining area invited such activity and found it likely that patrons would bedistracted by conversation with other patrons or by activities on the golf course, such that thedanger of being struck by a golf ball might not be anticipated. Prochnow, 253 Ill. App. 3d at 398. Given the proximity of the deck to the golf course, and the fact that the defendant had alreadyconstructed a fence to offer some protection against the type of accident sustained by the plaintiff,the court ruled the danger was reasonably foreseeable. Prochnow, 253 Ill. App. 3d at 398-99.

Prochnow guides our decision here. Plaintiff presented evidence that defendant knew orshould have known the area where plaintiff sustained the injury was unreasonably dangerous andthat club patrons could have been distracted from such danger. Plaintiff was allegedly struck bythe golf ball outside the ninth green near the pro shop, barbeque pit and cart return. There wasevidence that golf balls occasionally landed in this area and that defendant had constructed a fenceto provide limited protection. Also, based on the activities in the area, it was reasonable toconclude that golfers would stop to socialize or participate in golf-related activities, not realizingthe danger of being struck by a golf ball.

Defendant argues Eiben's opinion testimony that the area was unsafe should have beenexcluded because Eiben lacked unique architectural experience with respect to golf course designand safety. We note that while this argument is made in support of defendant's position that itwas entitled to judgment notwithstanding the verdict, it requires that we focus on the trial court'sadmission of Eiben as an expert witness.

The decision to admit expert testimony is within the sound discretion of the trial court. Snelson, 204 Ill. 2d at 24. Such testimony is admissible if the proffered expert is qualified byknowledge, skill, experience, training or education and the testimony will assist the trier of fact inunderstanding the evidence. Snelson, 204 Ill. 2d at 24. Defendant does not argue that Eiben wasunqualified in the area of general architecture or the BOCA code. Rather, defendant maintainsthat Eiben was required to have specialized knowledge in golf course design to qualify him tomake opinions about the safety of defendant's course. Defendant does not cite authority insupport of its argument. Nor do we find that such specialized expertise was required under thefacts of this case. Eiben's testimony did not concern the safety and design of the golf course butrather the safety and design of the area outside the course. Also, defendant was afforded theopportunity to cross-examine Eiben and present its own expert, someone with specializedknowledge in golf course design. We do not believe the trial court abused its discretion byallowing Eiben's opinion testimony.

Defendant also argues plaintiff did not present evidence that defendant knew of thedangerous condition. Defendant cites Anglin v. Oros, 257 Ill. App. 3d 213, 628 N.E.2d 873(1994), and Smoleck v. K.W. Landscaping, 266 Ill. App. 3d 226, 639 N.E.2d 974 (1994). Theplaintiff in Anglin sued the defendant landowner for an injury she received from a storm door onthe defendant's property. Anglin, 257 Ill. App. 3d at 214-15. The court found the plaintiff failedto establish a duty as a matter of law because there was no evidence that the defendant knew orshould have known the storm door was defective. Anglin, 257 Ill. App. 3d at 217-19. The doorhad not been replaced or repaired, the defendant had not received notice that the door wasbroken, the plaintiff did not have difficulties with the door before her accident and the doorappeared in good condition. Anglin, 257 Ill. App. 3d at 217.

The plaintiff in Smoleck sued the defendant for an injury she sustained by falling in a holeon the defendant's property. Smoleck, 266 Ill. App. 3d at 226. The court found that the plaintifffailed to present evidence that the defendant had actual or constructive notice of the hole. Smoleck, 266 Ill. App. 3d at 229-30. The court reasoned that the hole was so well concealed thatit was unlikely to be discovered through the exercise of reasonable care. Smoleck, 266 Ill. App.3d at 230.

Unlike Anglin and Smoleck, there was evidence in this case that defendant knew or shouldhave known that golf balls landed in the area where plaintiff was injured. There was testimonythat defendant placed a fence in the area to protect against stray golf balls. Defendant's employeeSue Sheanon testified she heard golf balls strike the roof of the pro shop. Felix Lee testified heheard that golf balls occasionally struck the pro shop. Although Lee denied seeing golf balls inthe area surrounding the barbeque pit and pro shop, his testimony was impeached by plaintiff'sattorney and private investigator. In viewing the evidence in the light most favorable to plaintiff,we find the trial court properly denied defendant's motion for judgment notwithstanding theverdict.

Defendant next contends it should have been granted a new trial based on severalevidentiary rulings by the trial court. Defendant argues the trial court erred in: (1) excludingassumption of risk evidence; (2) admitting Eiben's expert opinion testimony; and (3) excludingevidence of plaintiff's blood-alcohol level. We review these evidentiary rulings for an abuse ofdiscretion. See Janky v. Perry, 343 Ill. App. 3d 230, 234, 797 N.E.2d 1066 (2003).

Defendant first argues the trial court improperly excluded assumption of risk evidence. Defendant cites the golf cart rental agreement, which provided that defendant would be held"harmless from any damage or claim of any nature whatsoever that may arise from of by reason ofsuch use of said golf cart." Defendant maintains this "evidence was pertinent to a central issue inthe case: that the plaintiff understood and accepted the risks of operating a golf cart." Wedisagree. Plaintiff did not allege the golf cart was the instrumentality causing her injury. Rather,plaintiff's theory of recovery was premised on a finding that she was hit by a golf ball, renderedunconscious, fell out of a golf cart and hit her head on the pavement. Plaintiff maintaineddefendant was negligent because it knew or should have known of the danger to patrons from golfballs hit in the area where plaintiff was injured and failed to protect against such danger. Thecontract language bears no relevance to this issue and was properly excluded.

Defendant next argues the trial court erred in barring defendant from arguing primaryimplied assumption of risk as an affirmative defense. Primary implied assumption of risk existswhen a plaintiff assumes known risks inherent in a particular activity or situation. Goad v. Evans,191 Ill. App. 3d 283, 294, 547 N.E.2d 690 (1989). The risks are not those created by thedefendant's negligence but by the nature of the activity itself. Duffy v. Midlothian Country Club,135 Ill. App. 3d 429, 433, 481 N.E.2d 1037 (1985).

Primary implied assumption of risk is inapplicable here because "golf is simply not the typeof game in which participants are inherently, inevitably or customarily struck by the ball." Zurla v.Hydel, 289 Ill. App. 3d 215, 221, 681 N.E.2d 148 (1997).

" 'A golf course is not usually considered a dangerous place, nor the playing of golfa hazardous undertaking. It is a matter of common knowledge that players areexpected not to drive their balls without giving warning when within hittingdistance of persons in the field of play, and that countless persons traverse golfcourses the world over in reliance on that very general expectation.' " Zurla, 289Ill. App. 3d at 222, quoting Everett v. Goodwin, 201 N.C. 734, 737, 161 S.E. 316,318 (1931), quoting Schlenger v. Weinberg, 107 N.J.L. 130, 132, 150 A. 434,435, 69 A.L.R. 738, 741 (1930).

Because there are no inherent risks in golf, defendant was not entitled to a primary impliedassumption of risk defense.

We note that although defendant does not raise the precise argument in its brief, we findsecondary implied assumption of risk is also inapplicable. Under secondary implied assumption ofrisk, a plaintiff implicitly assumes the risks created by the defendant's negligence. Duffy, 135 Ill.App. 3d at 433-34. Because the doctrine acts as an absolute bar to recovery, it has been"abolished by the introduction of comparative negligence into our jurisprudence." Duffy, 135 Ill.App. 3d at 435.

Based on our findings with respect to assumption of risk evidence, we need not considerdefendant's argument that the trial court erred by failing to instruct the jury on assumption of risk.

Defendant's next argument concerns Eiben's qualifications to testify as to thedangerousness of defendant's property. As discussed earlier, we believe Eiben was sufficientlyqualified to offer opinions about the safety of the area where plaintiff was injured.

Defendant's final argument concerns the trial court order granting plaintiff's motion inlimine to exclude evidence of plaintiff's blood-alcohol level. Evidence of alcohol consumption isso prejudicial that more than mere drinking must be shown. Bielaga v. Mozdzeniak, 328 Ill. App.3d 291, 296, 765 N.E.2d 1131 (2002). Actual intoxication with impairment of physical or mentalcapabilities is required. Bielaga, 328 Ill. App. 3d at 296. At the hearing on plaintiff's motion toexclude evidence of plaintiff's blood-alcohol level, defense counsel conceded there was no onewho could testify that plaintiff was intoxicated at the time the accident occurred. The trial courtgranted plaintiff's motion on this ground but said it would revisit the issue at trial on a showingthat defendant could show intoxication.

A ruling on a motion in limine is a determination addressing an admissibility of evidenceissue likely to arise at trial and is subject to reconsideration. Schuler v. Mid-Central Cardiology,313 Ill. App. 3d 326, 333-34, 729 N.E.2d 536 (2000). Whether granted or denied, a motion inlimine itself does not preserve the issue for appellate review. Sinclair v. Berlin, 325 Ill. App. 3d458, 471, 758 N.E.2d 442 (2001). Rather, to preserve an error in the exclusion of evidence, theproponent of the evidence must make an adequate offer of proof in the trial court. Sinclair, 325Ill. App. 3d at 471. Failure to make such offer of proof results in waiver of the issue on appeal. Sinclair, 325 Ill. App. 3d at 471. The trial court here made the interlocutory nature of its order toexclude blood-alcohol evidence known to defendant and invited defendant to revisit the issue attrial. Defendant failed to raise the issue again at trial by offering the evidence or requesting tomake an offer of proof. The issue is waived.

The judgment of the circuit court is affirmed.

Affirmed.

WOLFSON, P.J., and GARCIA, J., concur.