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March 5, 2018

Assumption Of The Risk Did Not Apply Where Golfer Failed To Yell Fore Before Taking A Mulligan

In an interesting case from Westchester County, Dalton v. MacDonald, 2017 NY Slip Op 27404 (Sup. Ct., Westchester County 2017), the plaintiff commenced a personal injury lawsuit against defendant because the plaintiff was struck in the head by a golf ball that was hit by the defendant while they played together at a country club.

On the day of the accident, the plaintiff and the defendant played together in a threesome with another golfer. More than halfway through the round, each player hit their tee shot and went to hit their second shot. The plaintiff's second shot went to the left of the fairway, and the defendant's second shot went into the rough on the right side of the fairway. Following the defendant's second shot, the plaintiff drove to her ball on the left side of the fairway. After the plaintiff drove across the fairway to her ball, the defendant dropped another ball and hit a "mulligan" shot because she knew that she would not be able to find her ball in the rough. For those unfamiliar with golf, a mulligan is a "do-over" where the golfer merely drops another ball and takes another shot instead of playing their previous shot. When the defendant re-hit her second shot, the ball went sharply left and struck the plaintiff although the defendant was aiming straight, towards the green. The defendant did not yell "fore" or warn the plaintiff in any other way prior to taking the mulligan shot because she could not see the plaintiff's golf cart and she assumed (like most golfers) that her ball would go straight.

The defendant moved for summary judgment based upon the doctrine of assumption of risk and claimed that errant golf shots are part of playing golf. Under the doctrine of assumption of risk, a voluntary participant in a sporting or recreational activity consents to the commonly appreciated risks which are inherent in the nature of the sport and generally flow from participation in the sport or activity. The doctrine does not apply if the risk is un-assumed, concealed, or unreasonably increased. In other words, did the defendant's alleged negligence create a dangerous condition over and above the usual dangers that are inherent in the sport. In opposition to the defendant's motion, the plaintiff argued that assumption of the risk did not apply because the defendant took a mulligan, a re-shot, warning her fellow golfers.

In this case, the trial court denied the defendant's motion finding that the assumption of risk doctrine did not apply. The trial court noted that being struck in the head without warning by an errant golf ball is a risk that is inherent in playing golf and falls within the assumption of risk, but the plaintiff was struck when the defendant took a second, mulligan shot, without any warning to the other golfers. The trial court found that the defendant's failure to warn that she was taking the mulligan shot amounted to intentional or reckless conduct that unreasonably increased the risk inherent in golf and observed that the defendant had already taken her shot before the plaintiff left to drive over to her ball on the other side of the fairway when the defendant, unbeknownst to the plaintiff, dropped another ball and hit the mulligan shot without warning.

This case illustrates the analysis used when the doctrine of assumption of risk is at issue in cases where a plaintiff suffers an injury while participating in a sport or recreational activity. Whether the assumption of risk doctrine applies is ultimately determined by whether the risk or activity that caused the injury is inherent in the sport or the risk was unreasonably increased over and above the usual dangers that are inherent in the sport or recreational activity.

If you require further information regarding the content of this Legal Alert, please contact either of the Co-Chairs of the Torts & Products Liability Defense Practice Area, Thomas J. Drury, at (716) 858-3845 or, or Matthew J. Larkin, at (315) 425-2805 or


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