Shin

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 728 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 729 OPINION Defendant and appellant Jack Ahn appeals from an order granting a new trial which had the effect of reversing the trial court's prior grant of summary judgment in his favor. Plaintiff and respondent Johnny Shin had sued appellant for negligence as a result of injuries he sustained when appellant's tee shot hit him in the head during a round of golf. The trial court initially granted appellant summary judgment on the ground that the doctrine of primary assumption of risk barred Shin's claim. After reviewing additional authorities, the trial court granted Shin's motion for a new trial, finding that there were triable issues of fact as to whether appellant's conduct in failing to confirm Shin's location when he teed off increased the inherent risks of the sport…

DOI TODD, J.

Defendant and appellant Jack Ahn appeals from an order granting a new trial which had the effect of reversing the trial court's prior grant of summary judgment in his favor. Plaintiff and respondent Johnny Shin had sued appellant for negligence as a result of injuries he sustained when appellant's tee shot hit him in the head during a round of golf. The trial court initially granted appellant summary judgment on the ground that the doctrine of primary assumption of risk barred Shin's claim. After reviewing additional authorities, the trial court granted Shin's motion for a new trial, finding that there were triable issues of fact as to whether appellant's conduct in failing to confirm Shin's location when he teed off increased the inherent risks of the sport and, in turn, whether Shin's conduct was comparatively negligent.

Appellant challenges the order granting a new trial on both procedural and substantive grounds. Procedurally, he asserts that the new trial order is defective because it fails to identify either the grounds or the reasons for granting a new trial. On the merits, appellant contends that the order cannot stand because the law provides that every…

I respectfully dissent. The order granting a new trial should be reversed, and the grant of summary judgment reinstated, because this is a classic case of primary assumption of the risk, not secondary assumption of the risk. "The existence of `"`[d]uty' is not an immutable fact of nature `"but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection."'"' [Citation.]" ( Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148 , 160-161 [ 41 Cal.Rptr.3d 299 , 131 P.3d 383 ] ( Avila ).) "Primary assumption of the risk arises when, as a matter of law and policy, a defendant owes no duty to protect a plaintiff from particular harms. [Citation.] Applied in the sporting context, it precludes liability for injuries arising from those risks deemed inherent in a sport; as a matter of law, others have no legal duty to eliminate those risks or otherwise protect a sports participant from them. [Citation.] Under this duty approach, a court need not ask what risks a particular plaintiff subjectively knew of and chose to encounter, but instead must evaluate the fundamental nature of the sport and…