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January 10, 2011

Golfer Who Failed to Shout "Fore" Prior to Taking His Shot Not Liable for Injuries Sustained by Another Golfer

On the morning of October 19, 2002, plaintiff Azad Anand was seriously injured while golfing with defendant Anoop Kapoor and another mutual friend. After taking his second shot, Plaintiff walked to retrieve his ball which was located in the rough on the fairway of the first hole. While retrieving his ball, Plaintiff turned to assess the locations of the other golfers and was struck in the head by a golf ball which Defendant Kapoor "shanked" on his third shot. Plaintiff suffered a detached retina and permanent loss of vision in his left eye.

Plaintiff and his wife commenced a personal injury action against Mr. Kapoor asserting that Mr. Kapoor's failure to warn of his shot amounted to negligence and proximately caused Mr. Anand's personal injuries. Both Plaintiff and the third golfer testified that Plaintiff was about 20 feet in front of the defendant at the time of the accident and at an angle of approximately 50 degrees away from where defendant was directing his third shot. The defendant estimated the distance to be greater and the angle to be between 60 and 80 degrees. Defendant testified that he did not see anyone standing between his ball and the hole when he approached to take his shot, but he admitted that he did not ascertain the location of the other two golfers prior to taking his third shot.

After depositions were completed, the defendant moved for summary judgment dismissing the complaint arguing that the plaintiff had assumed the risk of being struck by an errant ball by voluntarily participating in the game of golf. Defendant also argued that he had no duty to warn the plaintiff of the incoming shot because to the extent such a duty exists, it only arises when the other person is within the intended line of flight of the golf ball.

The trial court granted defendant's motion and dismissed the complaint on the grounds that the plaintiff was not in the foreseeable zone of danger, and that the plaintiff had assumed a risk inherent in the game of golf. Plaintiff subsequently appealed the dismissal to the Appellate Division, Second Department. In affirming the entry of judgment dismissing the plaintiff's complaint, the Second Department held that the trial court properly granted summary judgment to the defendant.

Recognizing prior case law in New York which imposes a duty upon a golfer to give a timely warning to other persons within the foreseeable ambit of danger, the Second Department found that the undisputed evidence established that the plaintiff was not in the foreseeable ambit of danger. The Second Department acknowledged that no hard and fast rules exist to define the zone of foreseeable danger, but relied upon the decision in Jenks v. McGranaghan, in which the Court of Appeals previously ruled that a golfer standing on another tee about 25 yards away from the intended line of flight was not within the foreseeable zone of danger. Thus, the defendant owned no duty to the plaintiff to give warning of his intent to hit the ball.

Moreover, the Second Department found that a rule recognizing that liability could be predicated upon a golfer's negligent failure to give a warning prior to hitting the ball was inconsistent with the doctrine of primary assumption of risk. By voluntarily participating in a sporting or recreational activity, the plaintiff was deemed to have consented, in advance, to relieve the defendant of an obligation of conduct toward him or her, and to take his or her chances of injury from a known risk. The risks which participants in sporting or recreational activities are deemed to have consented to are those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. Risks which fall outside the scope of the doctrine are those of reckless or intentional conduct, or concealed or unreasonably increased risks.

The plaintiff appealed the Second Department's decision to New York's Highest Court. The Court of Appeals affirmed the dismissal of plaintiff's complaint finding that the risk of being struck by an errant ball is a risk that is inherent in and arises out of the game of golf and that defendant's failure to shout "fore" to warn of his intent to strike the ball did not amount to intentional and reckless conduct sufficient to unreasonably increase the risks inherent to golf to which the plaintiff consented.

If you require further information regarding the information presented in this Legal Alert and its impact on your organization, please contact any of the members of the Practice Area.


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