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Zeidman v. Fisher

August 13, 2009

STUART ZEIDMAN, APPELLANT
v.
ERIN FISHER AND TROY FISHER, APPELLEES



Appeal from the Order dated October 17, 2008 In the Court of Common Pleas of Philadelphia County. Civil Division at No. August Term, 2007, No. 0610.

The opinion of the court was delivered by: Cleland, J.

BEFORE: KLEIN, BENDER and CLELAND, JJ.

OPINION

¶ 1 This case reminds us again of the utility of communication to prevent injury, even in the pastoral setting of a golf course and in the context of a game in which etiquette is as integral as skill.

¶ 2 Appellant Stuart Zeidman (Zeidman) appeals the trial court's order granting summary judgment in favor of Appellee Troy Fisher.

¶ 3 On October 16, 2008, following the completion of pleadings and discovery, the trial court granted Troy Fisher's motion for summary judgment and, on November 6, 2008, denied Zeidman's motion for reconsideration.*fn1 *fn2 Because we conclude genuine issues of material fact exist, we vacate the trial court's order and remand.

¶ 4 On June 15, 2007, Zeidman, Larry Rashkow (Rashkow) and Fisher were competing in a charity golf outing at Springfield Country Club when a duck hook*fn3 hit by Fisher, acknowledged to drive the ball upwards of 300 yards, struck Zeidman in the face causing serious and permanent injuries.*fn4

Minutes before the errant tee shot, Zeidman's threesome, waiting on the tee box of the 17th hole, had become concerned whether the longer driving Rashkow and Fisher might inadvertently drive their tee shots into the group ahead of them on the same hole, an uphill 301 yard par 4. As a result, Zeidman, deemed incapable of driving his ball into the group ahead, hit his tee shot. Because the group ahead had disappeared over the crest of a hill and might still be within Rashkow's or Fisher's range, Zeidman, with the agreement of his playing partners, got into his golf cart and drove on the cart path over the crest of the hill to the green to determine whether the group had cleared the green so Rashkow and Fisher might safely tee off.

Troy Fisher Deposition, 4/23/08, at 31-33, 37, 41; Zeidman Deposition, 5/15/08, at 74, 81, 84). Zeidman made his observation and began his return trip on the golf cart path along the left side of the 17th hole. As he reached a point about 75 to 100 yards from the tee box, a point within the line of sight of the tee box, Fisher launched the ill-fated duck hook. While traveling along the cart path, Zeidman did not look toward the tee box to see what Rashkow and Fisher were doing. Focusing instead on driving within the cart path, he did not see Fisher address the ball or hit his tee shot. Zeidman Deposition, 5/15/08, at 96-100. Because he intended to return to the tee box to report the group ahead was out of harm's way and because he never signaled it was safe to tee off, he never entertained the possibility Fisher would hit his tee shot. Zeidman Deposition, 5/15/08, at 96, 106, 110-111. Fisher, however, acknowledged he had clear view of Zeidman throughout his pre-shot preparation and thereafter. Troy Fisher Deposition, 4/23/08, at 40-41. Nonetheless, because Rashkow and he saw the lead group driving its golf carts "out of the area" of the 17th hole, he proceeded to hit his tee shot before Zeidman's return. Troy Fisher Deposition, 4/23/08, at 41-42.

¶ 5 The trial court held:

[I]t appearing that the undisputed facts fail to demonstrate that Defendant Fisher's conduct was unreasonable, or that he breached a duty to Plaintiff, and further that Plaintiff assumed the risk of the uncertain activity of golfing,*fn5 and in that there are no other disputed issues of material fact, it is hereby ORDERED and DECREED that Defendant Troy Fisher's Motion for Summary Judgment is GRANTED.

Trial Court Order, 10/16/08, at 1.

¶ 6 Our standard and scope of review are as follows:

An appellate court may reverse the grant of a motion for summary judgment if there has been an error of law or an abuse of discretion. Since the issue as to whether there are no genuine issues as to any material fact presents a question of law, our standard of review is de novo; thus, we need not defer to the determinations made by the lower tribunals. Our scope of review, to the extent necessary to resolve the legal question before us, is plenary. We must view the record in the light most favorable to the ...


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