Sall v. T’s, Inc.

136 P.3d 471 (2006)

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Nature of the Case

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Facts

Patrick and his friend, Chris, decided to go golfing. By that afternoon, the sky had turned stormy. Thad Borgstadt, the morning manager for D, opened the golf complex as usual. Borgstadt checked the weather periodically by walking outside and visually checking. Borgstadt testified that he visually checked the weather every 10 to 15 minutes because that was D's policy. At approximately 1:15 p.m., Borgstadt noticed dark clouds in the sky and decided to close the complex. The complex remained closed at 3 p.m. when Jeff Tull, the afternoon manager, replaced Borgstadt. By 3:50 p.m. Tull noticed the skies were clearing, and radar images showed the thunderstorms were moving out of the area. In another 5 to 10 minutes, the sun came out and Tull opened D to the public at 4 p.m. Patrick called D to verify that the complex was open. When Patrick's mother questioned him about playing golf after thunderstorms had been in the area, he replied, ''Mom, don't worry; they wouldn't be open if it wasn't safe.'' The pair arrived at the first tee shortly before 5 p.m. It had started to sprinkle while they walked to the second tee. They discussed whether storms might be moving back into the area. They also discussed the fact that D would blow an air horn as a signal to return to the clubhouse in the event of dangerous weather. They started putting on the second green when it started raining a little harder. Chris saw a lightning bolt off to the west, but it was far enough away that they were not concerned. They decided they would finish the hole and start walking back to the clubhouse. At approximately 4:50 to 4:55 p.m., Tull checked the weather on the Internet. While he waited for the radar image to load on the computer, an employee informed him a television news teaser had just reported that storms were moving back into the area. Tull returned to the computer screen which showed storms to the southwest of D. Tull walked outside to visually check the weather and noticed dark clouds and lightning to the southwest of the complex. He immediately walked back inside, grabbed the air horn, stepped outside, and sounded the horn for two 7- or 8-second periods. Tull estimated he sounded the air horn at approximately 4:57 to 4:58 p.m. At the time Tull sounded the horn, there were three golfers on the course: Patrick, Chris, and a sole golfer, Toby Mills. Chris was holding the flag when he saw a second bolt of lightning in the same location where he had seen the first lightning bolt. Chris and Patrick heard the air horn. Patrick finished his putt, Chris replaced the flag, and they started walking back to the clubhouse. As they were walking on the second green, Chris was knocked unconscious for an unknown length of time. When he came to, he saw Patrick lying face down and unresponsive. Chris returned to the clubhouse for help. It took him 5 to 10 minutes to get back to the clubhouse because of his injuries. When Chris arrived at the clubhouse, he asked someone to call 911. The 911 call was received between 5:16 and 5:17 p.m. Patrick never fully recovered from his injuries, and he now requires total care. P sued D for negligence. D filed a motion for summary judgment. The court determined a business has no duty to protect or warn patrons of lightning because a lightning strike is not foreseeable. D’s motion for summary judgment was granted. P appealed. The court of appeals affirmed. P appealed. P contends that the Court of Appeals erred in its conclusion that Restatement (Second) of Torts § 323 did not apply under the facts of this case, that a lightning-related injury was not foreseeable as a matter of law and thus SGC owed no duty, and that the evidence was insufficient, as a matter of law, to establish the existence of a local industry standard that required the use of lightning detection equipment.