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Schmidt v. Courtney12/22/2003
Heard December 9, 2003
REVERSED and REMANDED
Wayne Schmidt (Schmidt) and Terri J. Schmidt initiated a negligence action against Michael Courtney for injuries Schmidt sustained when he was struck in the head by a golf ball while roofing a house located adjacent to a golf course. Kemper Sports of Crowfield, Inc. (Kemper Sports) was later joined on claims of negligent design, operation, and maintenance of the golf course. The circuit court judge granted Kemper Sports' motion for summary judgment. Schmidt appeals. We reverse and remand.
FACTS/PROCEDURAL BACKGROUND
On August 27, 1998, Schmidt was roofing a house located at 113 Waveney Circle in the Hamlets section of the Crowfield Development in Goose Creek, South Carolina. The home is adjacent to the Crowfield Golf and Country Club, which is owned and operated by Kemper Sports. Several oak trees stand between the house and golf course.
While Schmidt was roofing, Courtney was playing golf at the Crowfield Golf and Country Club. When Courtney made his tee shot on the Number 11 fairway, he hooked his ball, causing it to fly out of the boundaries of the course and over to the house where Schmidt was working. The golf ball struck Schmidt in the back of his head and knocked him unconscious. A fellow worker caught Schmidt and prevented him from falling off the roof. Schmidt suffered permanent brain damage from the injury and has been unable to work since the accident.
Schmidt initially filed a negligence suit against Courtney. Schmidt later joined Kemper Sports in the action, alleging negligent design, construction, operation, and maintenance of the golf course. After filing its answer, Kemper Sports then moved for summary judgment.
At the summary judgment hearing, Schmidt's counsel, Joseph F. Kent, presented information regarding an expert witness he located on May 7, 2002, just a few weeks after Kent received notice of the motion for summary judgment. The expert witness, Gerald W. Pirkl, specializes in golf course safety, design, and maintenance. Kent professed: "We were very long in finding this gentleman, Your Honor. I believe that before the case is over that it is going to turn out that Mr. Pirkl is the most experienced person by way of expert witnesses in this area." Kent requested the court consider his affidavit which identified Pirkl and set forth what Pirkl would likely state during testimony. In his affidavit, Kent declared:
I, Joseph F. Kent, counsel for the Plaintiffs in this action, having been duly sworn do depose and state as a proffer of evidence in this case, as follows:
1. Full and complete diagnosis of the closed head brain injuries sustained by Wayne Schmidt while working at the residence known as 113 Waveney was not accomplished until about the first of December 1999.
2. Counsel knows of no cases in this jurisdiction concerning the liability for negligent golf course design, maintenance or operation.
3. Counsel has found relatively few cases arising in the country from claims of negligent golf course design, maintenance or operation resulting in personal injuries to innocent parties outside of the bounds and property of golf courses.
4. Counsel has testimony of experienced golfers and an expert in the design of golf courses that foreseeable fields of play for tee shots often extend beyond the bounds of certain fairway boundaries and that such an extended field of play was foreseeable for the fairway and tee boxes in this case.
5. Counsel has retained an expert in golf course design, Gerald W. Pirkl, of Dana Point, California who counsel believes will testify that the design
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