A New York state appeals court has affirmed a trial court’s decision to dismiss a motion for summary judgment brought by a golfer, who was sued by another golfer (the plaintiff), after his tee shot hit the plaintiff in the head. In seeking to have the case dismissed, the defendant, Robert Bredenberg, unsuccessfully argued that the plaintiff, Walter Krych, assumed the risk of injury when he stepped on the golf course.
The incident occurred after the defendant’s group stepped on to the tee box and became impatient with the group ahead of it on the fairway. So the defendant decided to tee off with his driver. He hit his golf ball straight down the center. When it became apparent it might hit the group ahead, someone in the defendant’s group yelled “fore.” But it was too late as the ball “struck the plaintiff in the head as he retreated toward his golf cart.”
In a deposition, the defendant—”a skilled, self-described bogey golfer—maintained that two of his playing partners had teed off before him, that the plaintiff’s group was 100 or 150 yards beyond where those drives landed, and that he believed the plaintiff’s group was far enough away from the tee box that he would not hit them,” wrote the court.
The plaintiff’s account was different. He alleged that the defendant was the first to tee off in his group because he had not previously heard any other golf balls being hit. Furthermore, he “estimated that he was positioned only between 150 and 200 yards from the tee when he was struck by the defendant’s golf ball. We note that the defendant’s contention that he hit an unexpectedly long drive of more than 300 yards is based entirely on the purported hearsay statement of a golf professional who arrived at the scene following the incident and, in any event, the plaintiff expressly denied during his deposition that he was positioned 300 yards from the tee at the time of the incident. Furthermore, the defendant testified at his deposition that he typically hit golf balls with his driver “approximately 250 or 260 yards.”
The appeals court acknowledged that the assumption of risk doctrine has a place in golf, writing that “although the object of the game of golf is to drive the ball as cleanly and directly as possible toward its ultimate intended goal (the hole), the possibility that the ball will fly off in another direction is a risk inherent in the game.” (Rinaldo v McGovern, 78 NY2d 729, 733 [1991]; see Anand, 15 NY 3d at 948)
However, “this case does not involve a shanked, sliced, hooked, or mishit shot.” Instead, with “an unobstructed view from the elevated tee box of the plaintiff’s group ahead on the fairway, the defendant decided to tee off with his driver, and he hit his golf ball straight down the center where it struck plaintiff in the head.”
These facts would seem to fuel the plaintiff’s ability “to provide an actionable theory of liability,” according to the appeals court.
It continued: “Contrary to the defendant’s contention, the Supreme Court properly denied his motion with respect to the first two allegations of negligence against him. Indeed, we conclude that the defendant’s own submissions raise a question of fact whether he failed to exercise due care by hitting his golf ball from the tee so prematurely as to unreasonably increase the risk of striking plaintiff, while plaintiff was in the fairway on the same hole (see generally Rinaldo, 78 NY2d at733-734).
“Consequently, defendant’s submissions raise an issue of fact whether he unreasonably increased the risk of striking plaintiff with his golf ball by teeing off when plaintiff, who was visible in the fairway on the same hole, was still positioned well within the typical range of defendant’s drive (see generally Jenks, 30 NY 2d at 480; Johnston, 301NY at 600).”
Walter Krych and Penelope Krych v. Robert Bredenberg et al.; Supreme Ct. N.Y., App Div., 4th Judicial Dept.; CA 18-01611; 5/3/19
Full opinion can be viewed here: http://www.nycourts.gov/courts/ad4/Clerk/Decisions/2019/05-03-19/PDF/0066.pdf
