By: Rob Harris
According to documents he filed with a Michigan federal court, Robert Jesse “was a healthy young man with no vision problems until he swung a golf club at Dick’s Sporting Goods. The Plaintiff walked into the hitting room with perfect vision and after being struck in the eye by a golf ball, came out with a lifetime of vision problems.”
Mr. Jesse provided the court with the following details, which Dick’s Sporting Goods did not dispute:
On or about August 18, 2011, the Plaintiff and his uncle, Doug Jesse, were shopping for golf clubs at DSG when approached by DSG’s employee Curtis Ebbitt. Mr. Ebbitt offered the Plaintiff the opportunity to swing the golf clubs on a trial basis in the stores (sic) hitting room… Mr. Ebbitt unlocked the hitting room and allowed the Plaintiff, his uncle and Mr. Ebbitt to all enter the hitting room. The Plaintiff handed Mr. Jesse the clubs he wanted to try and Mr. Ebbitt left the hitting room to remove the security tag and place tape over the head of the golf club. Mr. Ebbitt then returned with the golf club and handed it to the Plaintiff to swing on a trial basis. Mr. Ebbitt and Doug Jesse then left the hitting room. The Plaintiff placed a golf ball on the golf mat which is part of the equipment, along with the Golf Achiever II (a laser measuring device that the golf ball travels through after being hit… that was manufactured by Co-Defendant Focaltron Corporation… and installed at the DSG store.
Plaintiff struck the golf ball with his selected club, following which he suffered a serious injury to his left eye. Plaintiff came out of the hitting room with a napkin to his eye, which was bleeding. Plaintiff alleges it was the golf ball which ricocheted against something in the room and returned to strike him in the eye. He alleges severe and permanent injuries to his left eye, including the eye remaining bloodshot as well as issues with depth perception, blurry vision, glaucoma, lazy eye/eyelid, and cataracts.
According to Mr. Jesse (and his attorney), this state of events should have been sufficient for him to prevail on a claim of negligence against Dick’s Sporting Goods.
The company, however, had a different view. As the court summarized the company’s argument,
“DSG argues that plaintiff has not come forward with even a theory of causation, let alone any actual evidence concerning how the incident injuring his left eye occurred, and thus that it cannot possibly face any liability here. DSG points to the testimony of plaintiff, plaintiff’s uncle, and the DSG employees present that day, none of which provides anything remotely concrete about how the injury occurred. For instance, in deposition, plaintiff ‘didn’t know’ if anything was wrong with the driver, what caused the ball to come back and hit him in the eye, what the ball hit in the room, if anything, or even whether he may have topped the ball, causing it to come back and hit him in the eye. Neither plaintiff nor his uncle, who was not in the room, heard the ball hit anything after it was hit by the golf club. Likewise, the sales associate did not hear the ball strike anything. Furthermore, plaintiff has presented no evidence giving rise to permissible inferences of negligence by either defendant. There are a multitude of possibilities to explain how the hitting room or equipment might have contributed to plaintiff’s injuries, but none more likely than the others.”
The court ruled in favor of Dick’s Sporting Goods, holding that without some claim or evidence as to what caused the accident, plaintiff’s case must be dismissed. According to the court, “it remains that all plaintiff has is speculation, and no opinion–expert or otherwise–to support his case.”
Referencing applicable law, the court explained that “‘the happening of the accident alone is not evidence of negligence.’ Stated another way, evidence of a bad result, in itself, is insufficient to prevail under this theory. In short, plaintiff asserts only that the ball hit either defendant Focaltron’s equipment or something placed in the room at DSG (or the wall of the hitting room itself), and cannot even rule out a freak ball topping incident. This kind of alternative liability argument (if not x, then y) simply is not enough to create liability… Thus, this case has not moved from the ‘realm of conjecture’ into a ‘field of legitimate inferences,’ and plaintiff’s speculation is simply not enough…”
Accordingly, the court entered judgment for the company, and plaintiff was left without recourse for the injuries he suffered.