GOLDEN, Justice.
[¶ 1] James Creel and Brenda Creel (collectively the Creels) attended the 2006 Wyoming Open Golf Tournament (Wyoming Open) as spectators. During the tournament, James Creel (Mr. Creel) was struck by a golf ball and suffered a head injury. The Creels thereafter filed an action for damages against several parties, including the golfer who hit the ball, a tournament official, and the operators of the golf course and tournament — L & L, Inc. and its owners Lew Lepore and Mike Lepore (collectively L & L). The district court granted summary judgment in favor of all defendants except the golfer, concluding that getting hit by a golf ball is an inherent risk of golf and that the Wyoming Recreation Safety Act thus barred the Creels' action. The Creels appeal the summary judgment entered in favor of L & L. We reverse.
[¶ 2] The Creels present the following issues on appeal:
[¶ 3] In reviewing a summary judgment, we set forth the underlying facts consistent with our standard of review, which requires that we proceed as follows:
Bangs v. Schroth, 2009 WY 20, ¶ 20, 201 P.3d 442, 452 (Wyo.2009) (citations omitted).
[¶ 4] On July 7, 2006, the Creels attended the 2006 Wyoming Open at the Cheyenne Airport Golf Course in Cheyenne, Wyoming. They walked the course following their son, Josh Creel, who was competing in the event. Josh Creel's foursome included fellow golfer Brandon Donahue, and his caddy was Haley Hartman. The spectators following Josh Creel, besides his parents, included Hadley Berry and Sue Blythe. When Josh Creel reached the putting green of Hole #1, they and others watched him from the front-right side of the green. Hole #1 is straight, roughly 320 to 330 yards long, and the right
[¶ 5] While the Creels and others watched their son putt, the next group of competitors prepared to tee off from the tee box of Hole #1. That group included Brett Veesart (Mr. Veesart), a professional golfer. Those on the tee box of Hole #1, including Mr. Veesart, could see the golfers still on the putting green of Hole #1. Mr. Veesart and the others in his group testified that the spectators following the Creel foursome ahead of them were not visible from the tee box of Hole #1, while Josh Creel and another golfer in his foursome testified that the spectators were standing in a location that was visible from the tee box.
[¶ 6] Kathy Irvine (Ms. Irvine) was a volunteer "starter" at Hole #1. She was appointed by and performing at the direction of L & L, which operates the course and sponsored the tournament. At the time of the 2006 Wyoming Open, Ms. Irvine had worked as a starter at the tournament for approximately twenty-four years.
[¶ 7] Mr. Veesart was designated as the first player off the tee box, and Ms. Irvine instructed him to commence play. Mr. Veesart responded that he felt he should wait because he was concerned that he could hit the green with his initial drive. He testified:
[¶ 8] Mr. Veesart proceeded as Ms. Irvine directed and teed off Hole #1. Mr. Veesart pushed his tee shot to the right of the green but did not yell "fore." The tee shot struck Mr. Creel on the side of his head, and he fell to the ground. Josh Creel then ran down the fairway alerting the Veesart foursome that his father had been hit and calling for an ambulance. Mr. Veesart went to Mr. Creel's side and said, "I'm so sorry. She made me hit." He also told the Creels that he would have been disqualified had he not hit the ball. We shall provide pertinent additional facts in our discussion below.
[¶ 9] In March of 2009, the Creels filed a complaint that named Mr. Veesart as the sole defendant. The complaint alleged that Mr. Veesart negligently caused the ball to be struck and negligently failed to warn the golfers and spectators within range of the incoming golf ball. Subsequently, the Creels amended the complaint to add Ms. Irvine and L & L as defendants. The amended complaint
[¶ 10] L & L moved for summary judgment on the ground that getting hit by a golf ball is an inherent risk of playing or being a spectator at a golf tournament and that the Wyoming Recreation Safety Act thus barred the Creels' claims. Ms. Irvine separately moved for summary judgment, asserting that, as a voluntary starter at the Wyoming Open, she did not owe the Creels any legal duty of care. Finally, Mr. Veesart moved for summary judgment on the ground that he had no duty either to protect participants and spectators from the inherent risks of golf or to warn such individuals of those inherent risks.
[¶ 11] In opposition to the summary judgment motion of L & L, the Creels argued: (a) there were genuine issues of material fact concerning whether the golf tournament was being negligently run by failing to properly mark safe observation areas for the tournament spectators; (b) the injuries sustained by Mr. Creel were not the result of inherent risks to the game of golf, rendering the Recreation Safety Act inapplicable; and (c) Mr. Creel was a spectator at the tournament and not a participant as contemplated by the Recreation Safety Act. In response to Kathy Irvine's motion for summary judgment, the Creels responded: (a) Ms. Irvine owed a duty of care to the Creels both in her individual capacity, as well as in her capacity as an agent for L & L; and (b) material issues of fact were in dispute concerning the existence of the agency relationship as well as whether a legal duty existed. Finally, responding to the motion for summary judgment of Mr. Veesart, the Creels asserted that the Recreation Safety Act should not bar the pending claims against him because the Act does not immunize a participant from acting recklessly and negligently during the course of play.
[¶ 12] The district court granted summary judgment to all of the defendants except Mr. Veesart. In granting summary judgment the court found, in part:
[¶ 13] Shortly after the district court entered its order granting summary judgment to L & L, and Ms. Irvine, the court entered an order denying Mr. Veesart's summary judgment motion. The court denied Mr. Veesart's motion on the ground that a participant in a sport or recreational opportunity owes a duty to not increase the risks inherent in the activity and questions of fact remained as to whether Mr. Veesart's conduct
[¶ 14] Motions for summary judgment come before the trial court pursuant to Rule 56(c) of the Wyoming Rules of Civil Procedure, which provides that
Redco Const. v. Profile Properties, LLC, 2012 WY 24, ¶ 21, 271 P.3d 408, 414 (Wyo.2012) (quoting Formisano v. Gaston, 2011 WY 8, ¶ 3, 246 P.3d 286, 288 (Wyo.2011)). We review a grant of summary judgment following a well-established procedure:
Lindsey v. Harriet, 2011 WY 80, ¶ 18, 255 P.3d 873, 880 (Wyo.2011).
[¶ 15] The Wyoming Recreation Safety Act bars actions against the provider of a sport or recreational opportunity for any injury caused by a risk that is inherent to that activity. The Act provides, in pertinent part:
Wyo. Stat. Ann. § 1-1-123 (LexisNexis 2011).
[¶ 16] On appeal, the Creels do not dispute that golf is a sport covered by the Recreation Safety Act, that L & L is a "provider" under the Act, or that the Creels are covered by the Act as persons taking part in a sport or recreational opportunity. The Creels instead contest the district court's conclusion that there is no disputed issue of material fact as to whether it was an inherent risk of golf that caused Mr. Creel's head injury.
[¶ 17] The Act defines inherent risk to mean "those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity." Wyo. Stat. Ann. § 1-1-122(a)(i) (LexisNexis
Dunbar v. Jackson Hole Mtn. Resort Corp., 392 F.3d 1145, 1148-49 (10th Cir.2004) (emphasis added).
[¶ 18] "[T]he `intent behind the Recreation Safety Act was not to preclude parties from suing for a provider's negligence, it was merely to stop people from suing providers for those risks that were inherent to a sport.'" Carden v. Kelly, 175 F.Supp.2d 1318, 1328 (D.Wyo.2001) (quoting Madsen v. Wyoming River Trips, Inc., 31 F.Supp.2d 1321, 1328 (D.Wyo.1999)); see also Wyo. Stat. Ann. § 1-1-123(c) (LexisNexis 2011) ("Actions based upon negligence of the provider wherein the damage, injury or death is not the result of an inherent risk of the sport or recreational opportunity shall be preserved pursuant to W.S. 1-1-109."). Because of this distinction, courts interpreting and applying the Wyoming Recreation Safety Act have repeatedly cautioned against evaluating whether a risk is inherent to an activity without considering the specific facts surrounding the claimed injury. See Dunbar, 392 F.3d at 1149; Carden, 175 F.Supp.2d at 1328; Cooperman v. David, 214 F.3d 1162, 1167 (10th Cir.2000); Madsen, 31 F.Supp.2d at 1328; Halpern v. Wheeldon, 890 P.2d 562, 566 (Wyo.1995). "When attempting to determine whether a risk is inherent to a sport, we cannot look at the risk in a vacuum, apart from the factual setting to which the [participant] was exposed. And, we must evaluate the risk at the greatest level of specificity permitted by the factual record." Cooperman, 214 F.3d at 1167 (citing Madsen, 31 F.Supp.2d at 1328). The Tenth Circuit in Cooperman went on to explain:
Cooperman, 214 F.3d at 1167 (footnote omitted).
[¶ 19] The Tenth Circuit's decision in Dunbar illustrates the level of specificity required in determining whether an injury was caused by an inherent risk of a sport or recreational activity. In that case, Dunbar, an intermediate-level skier, left an intermediate ski run and entered a terrain park set up with jumps and other challenging features. Dunbar, 392 F.3d at 1146-47. Dunbar entered the terrain park with her companions to see whether it was something she would
Dunbar, 392 F.3d at 1149, 1151-52.
[¶ 20] The level of factual specificity required to establish an inherent risk will often but not always preclude summary judgment on the duty question. For example, in Cooperman, the Tenth Circuit demanded greater specificity in defining the inherent risk but nonetheless affirmed the district court's grant of summary judgment. In Cooperman, the plaintiff, Cooperman, went on a guided horseback ride and fell off his horse and suffered injuries when his saddle slipped. Cooperman, 214 F.3d at 1164. Cooperman sued the guide, and the district court granted the guide summary judgment after finding that a slipping saddle is an inherent risk of horseback riding. Id. In upholding the summary judgment, the court explained:
Cooperman, 214 F.3d at 1168-69 (emphasis added).
[¶ 21] Just as the trial court must scrutinize with great care the facts brought forward by the parties on a summary judgment motion, so too must this Court on appellate review of the summary judgment. Our standard of review directs that we use the same designated "fact" materials, those designated by the parties, as did the district court, and our review is de novo. It is as if the motion were filed in our Court, and we must consider it accordingly. Thus, this Court has adhered to the prescribed careful attention to factual detail in considering whether summary judgment is appropriate on the question of inherent risk:
Jackson Hole Mtn. Resort Corp. v. Rohrman, 2006 WY 156, ¶ 3, 150 P.3d 167, 168 (Wyo.2006); see also Beckwith v. Weber, 2012 WY 62, ¶ 35, 277 P.3d 713, 722 (Wyo.2012) (whether particular risk is inherent in activity "is generally one for the jury to decide" and can be made as matter of law "only when the case involves undisputed facts and when reasonable persons could only conclude that an injury or death was caused by an inherent risk").
[¶ 22] The question we must answer in this case then is whether, upon our scrutinizing with great care the facts brought forward by the parties, the only conclusion reasonable minds could reach is that the Creels' injuries were caused by an inherent risk of golf.
[¶ 23] The Creels do not contest, and the evidence appears largely undisputed, that getting hit by a golf ball is, generally stated, an inherent risk of playing golf or being a spectator at a golf tournament. This statement of the inherent risk is of limited usefulness, however, because it is abstract and presents the question in a vacuum without consideration of the specific facts of the case. Just as the court analyses we discussed above required looking beyond generally-stated risks, such as falling from a horse or falling in a half-pipe while skiing, we must in this case look beyond the generalized risk of getting hit with a golf ball.
[¶ 24] Under our required inherent risk analysis, the question we must answer is whether L & L did anything to increase the risk that Mr. Creel would be hit by a golf ball. That is, did the conduct of L & L's agent, Kathy Irvine, increase the risk beyond what everyone agrees would normally be an inherent risk. It is when the question is framed with this specificity that we find genuine issues of material fact that preclude summary judgment.
[¶ 25] The Creels argue that L & L's negligence and not an inherent risk of golf caused their injuries because: 1) L & L
[¶ 26] That said, as the district court likewise recognized, L & L did have a duty to not increase the inherent risks of the sport. See Dunbar, 392 F.3d at 1149 (recognizing distinction between inherent risks and risks that "occur from the choices a recreation provider makes on behalf of the participant and from the conditions in which the recreational opportunity is provided"); see also Cotty v. Town of Southampton, 64 A.D.3d 251, 254, 880 N.Y.S.2d 656, 659 (N.Y.App.Div. 2009) (defendant's conduct may not unreasonably increase risk); Levinson v. Owens, 176 Cal.App.4th 1534, 1543, 98 Cal.Rptr.3d 779, 786 (Cal.Ct.App.2009) (recognizing defendant's duty to use due care not to increase sport's inherent risks); Yoneda v. Tom, 110 Haw. 367, 133 P.3d 796, 810 (2006) (golf course owner "has a duty to use due care not to increase the risks to a participant over and above those inherent in the sport"). Where we find disputed issues of material fact in this regard is in the question whether Kathy Irvine's actions increased the risk that Mr. Creel would be struck by a golf ball.
[¶ 27] Framed in the light most favorable to the Creels, and with the required factual specificity, the question is whether Ms. Irvine increased the risk that Mr. Creel would be struck by a golf ball by instructing Mr. Veesart to tee off when: 1) Mr. Veesart expressed concern that he could hit the green where he could see that the group ahead was still present; and 2) Ms. Irvine knew or should have known that there were spectators in the area of the Hole #1's green. The facts relevant to this inquiry are: 1) Ms. Irvine's directions to Mr. Veesart and, more particularly, what the two of them said to each other; 2) Ms. Irvine's authority and ability to influence Mr. Veesart's actions; 3) the ability of Ms. Irvine and Mr. Veesart to see the spectators near the green of Hole No. 1; and 4) Ms. Irvine's knowledge that there were spectators near the green of Hole No. 1. We find each of these facts, and the reasonable inferences to be drawn from them, to be in dispute.
[¶ 28] As set forth earlier in this opinion, Mr. Veesart testified that he told Ms. Irvine that he did not want to tee off Hole #1 because he felt he could hit the hole's green, where the group ahead of them was still present. According to Mr. Veesart, Ms. Irvine dismissed his concerns and told him he had to hit because the tournament was running behind schedule.
[¶ 29] In reviewing the record, this Court has found no evidence from Ms. Irvine detailing her account of the conversation she had with Mr. Veesart. In its decision letter, the district court noted:
[¶ 30] We assume that the evidence of Ms. Irvine's recollection was properly before the district court and simply did not make it into the record on appeal. In any event, the evidence does not resolve the factual question of what Ms. Irvine and Mr. Veesart discussed before he took his tee shot off Hole #1. The evidence serves only to highlight that there remains a disputed issue of material
[¶ 31] L & L argues, and the district court agreed, that there was no disputed issue of material fact concerning Ms. Irvine's authority and ability to influence Mr. Veesart's conduct because it was undisputed that the golfer always makes the final decision when to hit the golf ball. We disagree that the evidence on which L & L and the district court relied resolves this genuine question of material fact.
[¶ 32] The record is replete with non-expert opinion testimony that a golfer is responsible for making the final decision when to take his or her shot. For example, Michael Northern, one of the professional golfers in Mr. Veesart's group, testified:
[¶ 33] This evidence does not, however, answer the question of the extent to which Ms. Irvine had the ability and authority to influence and did influence Mr. Veesart's decision to tee off. The evidence in the record concerning Ms. Irvine's authority and influence included:
— Mr. Veesart's own testimony that Ms. Irvine did influence his decision when to take his shot;
— Michael Lepore's testimony that Ms. Irvine is a starter during tournaments and during everyday play and that the scorecard used by the golf course during everyday play, although not during tournaments, contains a statement of the rule that "[t]he pro or starter shall have absolute control of play on the course;" and
— Mr. Creel's testimony concerning his observations of Ms. Irvine's demeanor when starting his son, Josh Creel:
[¶ 34] Adhering to our standard of review, which requires that we consider the record from the vantage point most favorable to the party opposing summary judgment and give that party the benefit of all favorable inferences that may fairly be drawn from the record, we conclude that a genuine question of material fact remains regarding the question of Ms. Irvine's ability and authority to influence Mr. Veesart's decision to take a shot and thus increase the inherent risk at issue. See Bangs, ¶ 20, 201 P.3d at 452. In addition to Mr. Veesart's testimony that Ms. Irvine did influence his decision, the record supports a number of inferences concerning Ms. Irvine's authority, exercise of that authority and demeanor in exercising that authority. For example, a jury may fairly infer from the scorecard's advisement of the starter's "absolute control" that Ms. Irvine's demeanor and approach to directing golfers would be consistent with that advisement. Likewise, a jury may infer from Ms. Irvine's handling of Josh Creel that she was
[¶ 35] We do not mean to suggest that these are the only reasonable inferences that may be drawn from the record, but they are examples of reasonable inferences fairly drawn from the record that we must consider when reviewing summary judgment. The evidence on which L & L relied to support its motion for summary judgment did not address Mr. Veesart's testimony or the possible reasonable inferences that may be fairly drawn from the record. L & L's evidence was instead opinion evidence that, to the extent it was relevant and admissible, was directed to fault apportionment between L & L and Mr. Veesart, not to the impact of Ms. Irvine's conduct on the inherent risk to Mr. Creel of getting hit by a golf ball. Based on the evidence in the record, and the reasonable inferences that can be drawn from that evidence, we conclude that a genuine question of material fact remains regarding the question of Ms. Irvine's ability and authority to influence Mr. Veesart's decision to take a shot and thus increase the inherent risk at issue.
[¶ 36] We also find genuine questions of material fact exist regarding the ability of Mr. Veesart and Ms. Irvine to see the spectators, such as the Creels, that were standing to the right of Hole #1's green when Mr. Veesart teed off. Mr. Veesart and the other players in his group testified that they could not see the spectators because their view was obstructed by trees and bushes. On the other hand, a number of witnesses testified that the spectators would have been visible from Hole #1's tee box, including Brandon Donahue, a player in the Creel foursome, Josh Creel, Josh Creel's caddy, Haley Hartman, and Sue Blyth and Hadley Berry, spectators standing next to Mr. Creel when he was struck.
[¶ 37] Brandon Donahue testified:
[¶ 38] Josh Creel testified:
[¶ 39] Haley Hartman, Josh Creel's caddy, testified that the spectators following their group were not standing in the bushes. By affidavit, Sue Blyth attested to the following:
[¶ 40] Hadley Berry attested similarly, by affidavit, to the following:
[¶ 41] These witnesses testified as to what they believed was visible, based either on their particular vantage point or on their experience teeing off Hole #1 and being familiar with its layout on that same day. Viewing the evidence in the light most favorable to the Creels, we cannot reject the testimony simply because the witnesses cannot testify to what Mr. Veesart or Ms. Irvine actually saw. No witness can ever stand in the shoes of another witness and testify as to what that witness saw. Nonetheless, a witness can provide relevant testimony, including conclusions, inferences or opinions, based on their own actual observations. See W.R.E. 701; Tucker v. State, 2010 WY 162, ¶ 18, 245 P.3d 301, 306 (Wyo.2010) (witness may testify to inferences or opinion "rationally based on his perception").
[¶ 42] A number of reasonable inferences can be fairly drawn from the testimony of Brandon Donahue, Josh Creel and Sue Blyth. From the viewpoint most favorable to the Creels, a jury might infer that the two other golfers in Mr. Veesart's group were unable to see as clearly as Mr. Veesart could from his vantage point; that the spectators were visible to Mr. Veesart and the other players, but Mr. Veesart and the other golfers did not notice them because they were preoccupied or distracted by their play or the play on the green; or that Mr. Veesart's testimony was not credible. Again, we do not mean to suggest that these are the only inferences or that they are the inferences a jury, or even this Court, would draw from this testimony. But they are reasonable inferences that the record supports and, given this evidence, we must conclude that whether the spectators were visible from the tee box is a disputed issue of material fact.
[¶ 43] Ms. Irvine testified that when she started the Josh Creel foursome she saw a group of spectators walking the course with his foursome and that she recognized some of the spectators following his group. From this evidence, and the evidence described above concerning the visibility of the spectators from the tee box, a jury could infer that
[¶ 44] Based on the conflicting evidence and the reasonable inferences that can be fairly drawn from the record, we find genuine questions of material fact exist and the jury must resolve the duty question. That is, the jury must determine whether L & L's agent, Kathy Irvine, increased the risk that James Creel would be struck by a golf ball, beyond the risk inherent in the sport, when she instructed Mr. Veesart to tee off when golfers and spectators were on and around the green and Mr. Veesart expressed concern that he could hit the group ahead of him.
[¶ 45] One final observation we must make is that we cannot determine, based on the record before us, and assuming the facts were resolved in Creels' favor, whether the resulting scenario is one that increased the risk of getting hit beyond the sport's inherent risk. For example, in Cooperman, the Tenth Circuit found that the loose saddle that caused the plaintiff to fall was a result of human error in the cinching of the saddle. The court went further, though, and found that such errors in judgment were an inherent risk in the cinching of saddles, and it affirmed judgment for the defendant. Cooperman, 214 F.3d at 1169. Similarly in this case, the question may be asked whether errors in judgment caused by trying to maintain the pace of play in a tournament are an inherent risk of the activity. Based on the record before us, we simply do not know the answer to that question.
[¶ 46] Based on the conflicting evidence and the reasonable inferences that can be fairly drawn from the record, we find genuine questions of material fact exist and the jury must resolve whether L & L increased the risk that James Creel would be struck by a golf ball, beyond the risk inherent in the sport, when L & L's agent instructed a player to tee off when golfers and spectators were on and around the green and the player expressed concern that he could hit the group ahead of him. We thus reverse the entry of summary judgment and remand to the district court for proceedings consistent with this opinion.
GOLDEN, J., delivers the opinion of the Court; TYLER, D.J., files a dissenting opinion, in which SULLINS, D.J., joins.
TYLER, District Judge, dissenting, in which SULLINS, District Judge, joins.
[¶ 47] We would affirm the trial court's grant of summary judgment to Appellees as a matter of law, since there are no genuine issues of material fact in dispute.
[¶ 48] This Court's standard of review for an award of summary judgment is well-known. We must "examine the record from the vantage point most favorable to the non-movant party and that party receives the benefit of all favorable inferences which may fairly be drawn from the record." Franks v. Indep. Prod. Co., Inc., 2004 WY 97, ¶ 9, 96 P.3d 484, 490 (Wyo.2004).
[¶ 49] Summary judgment is proper if no genuine issue of material fact exists and if the prevailing party is entitled to a judgment as a matter of law. W.R.C.P. 56(c); Franks, ¶ 9, 96 P.3d at 490; Ware v. Converse Cty. Sch. Dist. No. 2, 789 P.2d 872, 874 (Wyo. 1990). A genuine issue of material fact is a fact which, if proven, "would have the effect of establishing or refuting an essential element of a cause of action or defense which has been asserted by the parties." Roitz v. Kidman, 913 P.2d 431, 432 (Wyo.1996); see also Franks, ¶ 9, 96 P.3d at 490. "Material fact" has been defined as a fact falling into any one of the following categories:
Reno Livestock Corp. v. Sun Oil Co., 638 P.2d 147, 151 (Wyo.1981) (citing Johnson v. Soulis, 542 P.2d 867, 871-72 (Wyo.1975)).
[¶ 50] A motion for summary judgment places an initial burden on the movant to make a prima facie showing that no genuine issue of material fact exists and that summary judgment should be granted as a matter of law. W.R.C.P. 56(c). Until the movant has made a prima facie showing that genuine issues of material fact do not exist, the non-movant party has no obligation to come forward to counter the motion with materials beyond the pleadings. Rino v. Mead, 2002 WY 144, ¶ 23, 55 P.3d 13, 20 (Wyo.2002). Once a prima facie showing is made, the burden shifts to the party opposing the motion to present specific facts showing that a genuine issue of material fact does exist. Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo.1987). The party opposing a motion for summary judgment "must affirmatively set forth material facts in opposition to a motion for summary judgment, ... [and] cannot rely only on his allegations and pleadings." Hyatt v. Big Horn Sch. Dist. No. 4, 636 P.2d 525, 530 (Wyo.1981). "Conclusory statements or mere opinions are insufficient ... to satisfy an opposing party's burden." Boehm, 748 P.2d at 710. The whole purpose of summary judgment would be defeated if a case could be forced to trial by a mere assertion that an issue exists. England v. Simmons, 728 P.2d 1137, 1141 (Wyo.1986).
[¶ 51] Pertinent provisions of the Recreation Safety Act, Wyo. Stat. Ann. § 1-1-121 through § 1-1-123 (LexisNexis 2011), provide:
[¶ 52] The following facts germane to this appeal are not disputed:
1. At all relevant times, Appellees were "providers" of a "sport or recreational opportunity."
2. Being struck by a golf ball on a golf course during play at a professional golf tournament is an "inherent risk" assumed by a participant of a "sport or recreational opportunity." Wyo. Stat. Ann. § 1-1-122(a)(i), (iii).
3. At all relevant times, as a spectator present on a golf course during a professional golf tournament, Appellant James Creel assumed the "inherent risk" of being struck by a golf ball. Wyo. Stat. Ann. § 1-1-122(a)(i), (iii) and § 1-1-123(a).
4. Appellees were not required "to eliminate, alter or control the inherent risks" to Appellant James Creel of being struck by a golf ball while he was a spectator physically present on a golf course during play at a professional golf tournament. Wyo. Stat. Ann. § 1-1-122(a)(i), (iii) and § 1-1-123(b).
5. The record is devoid of any acts or omissions by Appellees creating or causing a "non-inherent risk" of injury to Appellant James Creel.
[¶ 53] Within this appeal, Appellants do not steadfastly dispute whether being hit by a golf ball is an inherent risk of the sport of golf. Instead, they focus on the alleged negligent acts of Appellees, and argue that the act of directing the golfer to proceed to hit his drive on the first hole is not an act that is inherent to the game. In support of this position, Appellants rely upon Wyo. Stat. Ann. § 1-1-123(c) alone, and assert that such provision supports an exception applicable to the case at hand. Such an argument is flawed.
[¶ 54] If the language of the Recreation Safety Act is clear and unambiguous, then we should apply the plain and ordinary meaning of the words without resorting to the rules of statutory construction. Wyo. Stat. Ann. § 8-1-103(a)(i) (LexisNexis 2011); Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo.1995) (citing Soles v. State, 809 P.2d 772, 773 (Wyo. 1991)). The language of Wyo. Stat. Ann. § 1-1-123(c) is clear and unambiguous. The proper interpretation is one that focuses upon whether the risk is "inherent" to the "sport or recreational opportunity" — not the nature of the conduct (i.e., whether the conduct is negligent). State v. Stern, 526 P.2d 344, 351 (Wyo.1974) ("[L]egislative intent governs and that `intent must be ascertained by reading it [the statute] according to the natural import of the language used without resorting to subtle and forced construction.'" (alteration in original) (quoting State ex rel. Murane v. Jack, 52 Wyo. 173, 70 P.2d 888, 892 (1937)). Accordingly, the negligence exception under Wyo. Stat. Ann. § 1-1-123(c) applies solely to "non-inherent risks."
[¶ 55] Inasmuch as the uncontroverted fact that being struck by a golf ball on a golf course during play at a professional golf tournament is an "inherent risk" assumed by a participant of a "sport or recreational opportunity," the negligence exception in subsection (c) does not apply. Wyo. Stat. Ann. § 1-1-122(a)(i), (iii) and § 1-1-123(c). To decide otherwise would effectively render the core purpose of the Recreation Safety Act a nullity.
[¶ 56] Appellees' motion for summary judgment made a sufficient prima facie showing that no genuine issue of material fact exists and that summary judgment should be granted as a matter of law under the Recreation Safety Act. W.R.C.P. 56(c). The burden then shifted to Appellants to present specific facts showing that a genuine issue of material fact does exist. Moreover, Appellants "cannot rely only on [their] allegations and pleadings." Hyatt, 636 P.2d at 530; see also England, 728 P.2d at 1141.
[¶ 57] Appellants failed to present specific material facts to the district court showing that any "damage [or] injury [was] not the result of an inherent risk of the sport or recreational opportunity." Wyo. Stat. Ann. § 1-1-123(c). Therefore, as to the claims asserted by Appellants against Appellees, no genuine issues of material fact exist which "would have the effect of establishing ... an essential element of a cause of action." Roitz, 913 P.2d at 432; see also Franks, ¶ 9, 96 P.3d at 490; Reno Livestock Corp., 638 P.2d at 151; Johnson, 542 P.2d at 871-72; W.R.C.P. 56(c).
[¶ 58] Pursuant to the Recreation Safety Act as a matter of law, Appellees should be
[¶ 59] In this appeal, strictly involving Appellants' claims against Appellees, we would affirm the district court's grant of summary judgment in favor of Appellees as a matter of law under the immunity afforded them by the Recreation Safety Act, since there exist no genuine issues of material fact to be determined.
