A Good Samaritan spoiled--odd Phoenix golf lawsuit back in court

By Paul Rubin

We love a good lawsuit around here, as long as it's not us getting sued.

We recently came upon yet another one, the July 1 opinion by the Arizona Court of Appeals that reversed and remanded the case of Lloyd F. Breshers vs. the City of Phoenix and the Estate of Tom Dunlap.

A Maricopa County jury earlier had ruled against Breshers after a trial in the courtroom of Judge Paul McMurdie.

Seems that back in February 2004, Breshers was hitting golf balls at the Maryvale Golf Course out on 59th Avenue and Indian School, which is owned by the city and managed by a private firm.

Tom Dunlap was operating a golf ball-retrieval machine out on the range. Anyone who's been to a golf course has seen a "range picker," as they're called. The machines look like a modified golf cart, except that a steel mesh protects the driver from getting nailed by an errant, or in the case of this little YouTube blurb, intentionally.

According to court records, Breshers saw that Dunlap's range picker had gotten stuck in the mud about 40 feet in front of where he was hitting balls. Writing for the appellate court, Judge Michael J. Brown described how "Dunlap exited the vehicle and motioned in Breshers' direction for assistance."

Two other people, a patron of the course and a range employee, were nearby and also walked out on the range to help Dunlap. Breshers and the employee stood on either side of the picker at the back of its cabin. The other patron positioned himself at one of the corners of the vehicle.

Dunlap got back in the cart, and the other three men began to push.

The picker began to move and then suddenly lurched forward to turned to the right, away from Breshers. The metal rake that scoops up the balls and is attached to the front of the picker ran into Breshers' leg. He fell on his shoulder, hard enough to later require surgery.

Naturally, he found an attorney and sued the city, Tom Dunlap and Dunlap's employer.

At trial, the defendants asked Judge McMurdie to instruct jurors on the legal concept called "assumption of risk." Breshers objected, and said that instruction should be given only when the injured person "knows and understands and appreciates the full nature and extent of tthe risk" involved.

It's akin to when someone goes to a baseball game, knowing that he or she may get hit by a foul ball or (rarely) a bat that slips out of a hitter's grasp.

McMurdie sided with the defendants and gave the instruction.

Even then, the jurors decided that Dunlap and his employer had been responsible for 50 percent of the accident at the Maryvale range (they determined that Breshers was responsible for the other 50 percent). The panel cleared the City of Phoenix of any wrongdoing.

That 50 percent translated to a $70,000 verdict in Breshers' favor, but apparently that wasn't good enough. He asked for a new trial based on the assumption of risk ruling, but McMurdie didn't bite, so he appealed to a higher court.

And won.

"We find no evidence suggesting that Breshers was aware of the particular risk--being struck by the rake attached to the range picker--or that he appreciated its magnitude," the appellate court concluded.

The defense cited a New York case holding that an assumption of risk instruction is justified when someone voluntarily participates in a sporting or recreational activity. But the Arizona court pointed out that Breshers got hurt helping to remove a vehicle on a driving range, which is "unrelated to the risks associated with golf."

At any rate, in sending the case back to Superior Court for a new trial, the Court of Appeals hollered "Fore!" to Judge McMurdie about his apparently incorrect ruling,

The way we see it, if some guy in a range picker asks us for help over at Encanto during one of our lunchtime sneak-aways to hit a bucket of balls, well, just ain't gonna happen.

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Paul Rubin
Contact: Paul Rubin