Duty while playing golf?

Law.com has a story today about a case from New York that involved a number of interesting questions in the context of one of my hobbies.

The story starts when three friends went to play golf. After each had hit his first two shots toward the first hole they separated and went to look for their balls. According to the decision, the defendant then hit an errant shot that hit one of his friends in the left eye causing severe injuries. The defendant claimed he shouted out a warning when he realized where the ball was headed, but neither of his companions heard a warning. The Trial Court dismissed the case on grounds that the defendant was not negligent and that the plaintiff had, in any case, assumed the risk of injury through his voluntary participation in the sport. The New York state Appellate Division, Second Department, affirmed holding that a golfer did not have a legal duty to yell "fore" after taking a shot that eventually caused the plaintiff's injury.

Millions of people play golf in the US every year and accidents like this one are, actually, not unusual. To avoid them, golfers know, or should know, the universally accepted practice of yelling the word "fore" as a warning to others to protect themselves from errant shots.

One interesting question presented by this case is whether a golfer can be held negligent for his conduct on the golf course if his conduct creates an unreasonable risk of harm to others. I don't see why not, and there is case law that supports my position. The other interesting question is whether the voluntary decision to participate in the game means that golfers assume the risk of injury regardless of how the injury occurs. I don't think so; and, thus, I disagree with the ruling of the court here.

The 3-1 Second Department majority affirmed a lower court's dismissal of the claim, holding that, given the circumstances of the accident, the defendant could not have reasonably anticipated that the plaintiff was in any danger from his shot.

Although not very eloquently expressed, what the court is trying to say is simply that the defendant was not negligent. There was no evidence that showed he did not exercise reasonable care before, while or after taking his shot. If that was all, this case would be totally routine.

But, unfortunately, that is not all.

The Court then went on to say, that even if the defendant had been negligent, the case had to be rejected because the risk of being struck by a misdirected shot is an "inherent" part of golf and that the plaintiff "assumed the risk" because voluntary participants in sporting and recreational activities are deemed to have consented to "commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation."

This is an example of confusion about the concept of assumption of the risk ... and about the game of golf.

First of all, sports activities do present risks to participants but that does not mean that other participants do not have a duty to act like reasonable people. In skiing there is an inherent risk of falling, but courts recognize claims against other skiiers if their negligence causes other skiiers to fall. The same should be true of golf.

Even if there is an inherent risk of getting hit by a ball on the golf course -- something I am not sure I agree with -- I don't think that means a golfer assumes the risk of getting injuried because of another golfer's negligence. ....UNLESS what the court is trying to say is that golfers simply have no duty to exercise due care when playing the game, which, in my opinion, would be contrary to public policy.

Yet, that is precisely what the court seems to be saying when it says that "to conclude that the defendant can be held 'liable' in tort for a poorly-executed golf shot because he may have negligently failed to shout 'fore' is inimical to the rationale underlying the doctrine of primary assumption of the risk, and at odds with the public policy goal for its adoption" -- to encourage "free and vigorous participation" in sports and recreational activities."

I disagree with that as a torts professor and as a golfer!

It is certainly not frivolous to argue that a golfer is negligent if he or she does not take proper care to make sure he or she knows where the other golfers in his or her group are before taking a shot and, if they are in the way, if he or she fails to warn them that he or she is about to take the shot. As a golfer, this is one of the first things you learn to do, precisely because you know how dangerous it would be to hit someone else.

Yet the court did not give this argument much importance. The Court found that the "carelessness" of failing to follow these procedures "does not rise to the level of creating a dangerous condition over and above the usual dangers inherent in participating in the sport of golf." Again, I disagree. Justice Cheryl E. Chambers argued in a signed dissent that there was a question of fact as to whether the defendant's violation of golfing procedures unreasonably increased the risks to other competitors.

The case is Anand v. Kapoor, available here.

UPDATE (Nov 18, 2010): The court of appeals heard oral arguments.  Take a look here for my reply to a reader's comments on the case.

UPDATE (January 31, 2011):  The Appeals Court has affirmed the lower court.  Go here for my comments.