Problem: Nickles v. Schild 617 N.W.2d 659 (S. D. S. Ct. 2000)

Justice Gilbertson

FACTS On May 5, 1996, Jay Schild (Schild), Mark Nickles and Schild's younger brother drove to the Human Services Golf Course inLarry Nickles, the guardian of Mark Nickles, appeals the trial court's admission of expert testimony Yankton, South Dakota, to play golf. All three boys were minors. Both Nickles and Schild had previously received golf instructions and had been taught some golfing rules. After playing five holes, Schild and Nickles proceeded to the next tee box. Schild's younger brother was still on the fifth hole green retrieving his ball, which Nickles had knocked a short distance from the green. Schild proceeded to tee up his ball at the front center of the tee box and was preparing to hit his next drive. In the meantime, Nickles moved off the tee box approximately 10 feet and was facing the previous green watching Schild's brother. Schild, who had seen Nickles walk off the tee box, stepped back from his ball and took three practice swings. On the third practice swing, Schild hit Nickles in the head, fracturing his skull and permanently injuring his left eye. Guardian (sic) commenced a personal injury action against Schild for damages sustained as a result of Schild's negligence and failure to exercise reasonable care in swinging his golf club. Schild denied he was negligent and claimed that Nickles was contributory (sic) negligent and assumed the risk of his injuries. During trial, Schild called Robert Boldus as an expert witness. Boldus was a former member of the Professional Golfer's (sic) Association and golf professional at Fox Run Golf Course in Yankton, South Dakota. Boldus had often given golfing lessons to junior golfers while at Fox Run. Schild asked Boldus whether "as a golf professional," he had "formed any opinions as to what had happened in this case?" Nickles immediately requested permission to briefly interrogate Boldus for purposes of objecting to his opinion. During this interrogation, the following discussion occurred:

Q: (Nickles's attorney): Mr. Boldus, as a professional golfer, a member of PGA or based upon your experience, have you had any training in evaluating liability or standards of care required in golf liability cases?

A: (Boldus): No, I haven't.

Nickles then objected to the opinion by Boldus regarding standards of care or the ultimate issue. The trial judge overruled Nickles's objection and allowed Boldus to give his opinion:

Q: (Schild's attorney): And could you tell the jury what opinions you have come to?

A: (Boldus): In my opinion it was an accident. But one of the players moved, and when you're in your preshot routine if you move, you back away from the ball six inches to a foot or one step, and then you take your practice swings. My opinion, somehow Mark Nickles had moved in the way of the swing and got hit

Q: (Schild's attorney): In your opinion did [Schild] violate any standards of care?

A: (Boldus): No. The jury returned a verdict in favor of Schild. Nickles appealed, raising the following issue: Whether the trial court abused its discretion by permitting expert testimony from Boldus.

[A]n expert is not limited to testifying only upon those areas in which he or she has received formal training. Rather, when giving an opinion, an expert is allowed to draw upon all the knowledge, skill, or experience that he or she has accumulated. [W]hile Boldus may not have had any formal classroom "training" in the applicable liability standards, it is clear Boldus was no novice at the game of golf. He was a former member of the PGA and a golf professional at Fox Run Golf Course in Yankton. While at Fox Run, he had often given golf lessons to junior golfers, which included golf etiquette and safety. He had even previously given golf lessons to Nickles. By any of these methods of acquiring the appropriate expertise or combination thereof, he could have qualified himself as an expert to testify as to "what happened." It is quite clear from the testimony of Boldus and his vitae that he did have an opinion on the standards of care required in golf and the expertise to give such an opinion. The following testimony regarding the standard of care applicable to the game of golf was elicited from Boldus during direct testimony:

Q: When someone has addressed the ball and stepped back and they're doing their practice swings, what is the person's duty when they're doing those practice swings?

A: Well, basically there's nothing stated that says that you have to look around. You should be, when you begin your preshot routine, prior to taking your practice swings you should look and kind of [get] an idea where people are at so they are out of your way so you can take a swing. Once you begin your practice swings I think it's a duty of the other person to stay out of the way.

Q: So once, right before you start your preshot routine is when you have the duty to check what's going around?

A: Yes.

Q: And then as you start your preshot routine then it's the duty of those around you to become aware that that's what you're going to do, to watch?

A: Yes.

Boldus merely described, in his opinion, "what happened in this case" and that Schild's actions did not violate any standard of care concerning the game of golf. He did not invade the province of the jury as Nickles suggests. Boldus did not testify as to the ultimate issue of negligence. In fact, Boldus did not discuss the issue of liability at all until he was asked upon cross-examination, "but one party is liable, aren't they?" Boldus responded, "I wouldn't-yah-I don't know about liable, but somebody [is responsible for that]." Nickles' objection as to the qualifications of Boldus goes in part to formal training concerning the issue of ultimate liability. The ultimate liability of one of the parties is not the same as standard of care. One can violate a standard of care and still not be held liable. There could be further potential questions of contributory negligence, assumption of the risk, financial responsibility of a minor and/or his parents, questions of duty to supervise a minor and the like, all of which can have a decisive effect on liability and which clearly are outside the expertise of a golf pro and his knowledge of golf standards of care. Boldus did not testify as to any of these issues; his testimony was limited to describing the standard of care for the game of golf. Affirmed.

DISSENT Justice Sabers I dissent. I write specially to point out that the majority opinion misses the point-not once, but several times. Whether Boldus was qualified as an expert witness is immaterial. The point is that under the pretense of being an expert witness, Boldus cannot testify as a fact witness. He was not present at the scene. He does not know what happened. Only fact witnesses can testify "as to what happened?" Therefore, under these circumstances it was totally improper for Boldus to testify to his opinion "as to what happened in this case."

Questions

1. What were Nickles's objections to the expert, Boldus's, testimony?

2. What objection was raised by the dissenting Justice Sabers?

3. Do you agree with the expert, Boldus, that once a golfer has properly started the preshot routine the duty of care shifts to those around the golfer to be aware of what is happening and to keep themselves out of harm's way? Explain.

4. Dodge slipped leaving work and claimed that she suffered knee, ankle, and back injuries. Dodge sued the workplace cleaning service, but she provided no expert testimony to establish that the fall caused the injuries. Rather Dodge provided her own explanation of the fall and resulting injuries. Did the trial court err in admitting Dodge's lay person testimony? Explain, See DodgeFarrar v. American Cleaning Services Co., 54 P. 3d 954 (Ida. Ct. App. 2002).