By Nicole Bryson, J.D. and Jeff Birren, Senior Writer
One day in 2020, two people set out to play golf, albeit 160 miles apart. One was on the course when he was struck by an errant ball. The other was driving a golf cart in the parking lot while seeking to retrieve her clubs when she was struck by a car. Both filed negligence cases. The New York Appellate Division applied the primary assumption of risk doctrine to both plaintiffs. They each sought relief in the New York Court of Appeals. That Court consolidated the two cases. It affirmed the decision as to the golfer who was struck by a ball but reversed the decision as to the prospective golfer injured in the parking lot. The primary assumption of risk doctrine “has no application to a person who is not participating in a protected athletic or recreation activity at the time of their injury. (David Katleski v. Cazenovia Golf Club, Inc., Case No. 33, Mary E. Galante v Robert G. Karlis, et all, Country of Erie, Respondents, Case No 62 SSM 4 (2025 NY Slip Op 02178) (4-14-2025)).
Katleski Factual Background
Katleski was an “experienced golfer.” He was playing in a “shot gun start” at the Cazenovia Golf Club. In this format, different players “were scheduled to tee off simultaneously from different holes.” The winning group was determined after completing three rounds of the nine-hole course. Katleski was riding on a golf cart looking for his ball on the seventh fairway. Another player “was teeing off from the third hole, which runs roughly parallel to the seventh, but is played in the opposite direction”. Unfortunately, the “ball hooked hard to the left” and “struck Katleski in his left eye.”
Katleski sued the course, claiming it was negligently “designed and operated.” Discovery “revealed” that the layout had not been changed since it was constructed in 1924. The specific “tee box” was installed approximately ten years earlier in order to increase the degree of difficulty. In his deposition, Katleski testified that had been a member of the club for 18 years. He had played on the course some 100 times, including twice that day. Katleski admitted that “getting hit by a golf ball is an inherent risk of playing golf” and stated that very day that “the placement of tee box A was dangerous due to the lack of a clear sight line between that box and the seventh hole.”
The club sought summary judgment, arguing that Katleski “voluntarily assumed the risk of being hit by a golf ball” when he participated in the tournament. In his opposition, the submitted an affidavit from an expert that opined that the course was laid out in a dangerous manner. The Supreme Court denied the motion. In a split decision, the Appellate Division reversed (Katleski, 225 AD 3d 1030 (3d Dept 2024)). It cited Katleski’s experience as a golfer and his awareness of the course’s topography and layout. It noted the conflicting expert opinions but found that there was no evidence that the design “exposed” Katleski to a “risk over and above the usual dangers that inherent in the sport of golf.”. By the time reached the Appellate Division, the golfer whose errant shot hit Katleski, and his defendant father, had been dismissed on motion practice.
Galante Factual Background
On the very same day, June 20, 2020, Galante intended to play golf at the Elma Meadows Golf Course in Erie County. Erie County owns the Elma Meadows facility. She parked her car in the parking lot, walked to the clubhouse, checked out a golf cart and attempted to return to her car in order to retrieve her golf clubs. While doing so, she was struck by a car exiting the parking lot and was thrown to the pavement.
Galante sued Karlis, Erie County, Elma Meadows Golf Course, and County of Erie Parks, Recreation and Forestry for negligence. She filed a motion to strike the County’s primary assumption of risk defense. The County defendants filed a motion for summary judgment based on the assumption of risk defense. The Supreme Court granted Galante’s motion and denied the County defendants’ motion. They appealed to the Supreme Court Appellate Division. That Court reversed both rulings in a split decision. (Galante v Karlis, et all, 229 AD 3d 1311 (4th Dept. 2024)). It acknowledged that although Galante was not “actively engaged in golf at the time of the accident, ‘the accident occurred in a designated recreational venue.” However, the risk (of being struck by a car in the parking lot) “while driving a golf cart is inherent in the sport of golf and that plaintiff was aware of that risk and assumed it.” It did not rule on the County and Parks’ appeal denying the summary judgment motion based on waiver and release. Like Katleski, Galante appealed as a matter of right to the state’s highest court.
New York Law
Under the doctrine of primary assumption of risk, one who participates in a sport or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484 (1997)); see Grady v Chenago Val. Cent. Sch. Dist., 40 NY3d 89, 93-95 (2033)).
The doctrine generally precludes liability for injuries sustained during such qualified activities “when a consenting participant … is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” (Grady, 40 NY3d at 95). These questions tare “measured against the background of the skill and experience of the particular [plaintiff]” (Bishop v State of New York, 219 AD3d 994, 995 (3d Dept 2023)).
A plaintiff need not “have foreseen the exact manner in which his or her injury occurred, so long as he or she was aware of the potential for injury so long as [they are] aware of the potential for injury of mechanism from which the injury results” (Grady, NY3d at 95). Moreover, “it is well settled that the doctrine … may encompass risks engendered by less than optimal conditions, provided that those conditions are open and obvious and that the consequently arising risks are readily appreciable” (McQuillan v State of New York, 218 AD3d 864, 866-867 (3d Dept 2023)). However, a participant in a qualified activity is not “deemed to have assumed risks that are concealed or unreasonably enhanced” (Grady, 40 NY3d at 95, [internal quotation marks and citation omitted]).
Regarding golf in particular, it is well established that “being hit without warning by a shanked shot” is “a commonly appreciated risk” of participating in the sport (Anand v. Kapoor, 15 NY3d 946, 948 (2010)), [internal quotation marks omitted]; see Delaney v MGI Land Dev., LLC, 72 AD3d at 1255; Milligan 52 AD3d at 1239.
New York Law As Applied to Katleski
Katleski, a highly experienced golfer, knew of the risks involved in playing in the tournament and made an informed decision to play despite the lack of protective barriers and his avowed concern about the tee box A location. “Golfers are deemed to assume the risks of open topographical features of a golf course'” (Milligan, 52 AD3d at 1239, quoting Brust v Town of Caroga, 287 AD2d 923, 925 (3d Dept 2001)), and “evidence establishing that the proximity of [a tee] to [a different] green and hole was open and obvious” will preclude liability against a golf course for injuries sustained as a result of such proximity (Milligan, 52 AD3d at 1239). The risk posed by playing under such suboptimal conditions— getting hit by a shanked shot—is inherent to the sport of golf and was readily apparent to plaintiff, who acknowledged his appreciation of the dangers involved.
Even accepting the opinions of plaintiff’s experts that the course failed to meet applicable safety standards (compare Thornberg v Town of Islip, 127 AD3d 1162, 1163 (2d Dept 2015)), “the primary assumption of risk doctrine also encompasses risks involving less than optimal conditions” (Bukowski v Clarkson Univ., 19 NY3d 353, 356 [2012]). One who voluntarily participates in a sport under suboptimal conditions will be deemed to have assumed the risk of such conditions if the risks are “inherent to the sport” and “readily apparent to the plaintiff” (id. at 357.) The duty owed in these circumstances is to make the “conditions as safe as they appear to be” (Id.). Indeed, “if the risks of the activity are fully comprehended or perfectly obvious, [the] plaintiff has consented to them and [the] defendant has performed its duty” (Id. at 356
Consequently, if a golfer is hit by an errant shot during regular play, and the course’s layout or features were clearly visible and posed no hidden danger, the assumption of risk doctrine shields the course owner and other players from liability. If the topography or layout of the course is open and obvious, and it does not present any unusual or concealed hazards, the assumption of risk doctrine remains applicable. The only legal exception to the assumption of risk doctrine arises when a condition is unreasonably dangerous and not inherent in the activity.
New York Law As Applied to Galante
For Galante the result was very different for one simple reason: “Galante was not playing, observing, or otherwise participating in an athletic or recreative activity at the time she was injured.” The Court has not applied the primary assumption of risk doctrine outside of the sports’ context. It must be “closely circumscribed if it is not seriously to undermine the principles of comparative causation.” It “only applies to ‘personal injury claims arising from sporting events, sponsored athletic and recreational activities, or athletic and recreational pursuits that take place at designated venues.” (Custodi v. Town of Amherst, 20 NY 3d 82, 89 (2012)). It does not apply to persons using streets or sidewalks as this would create an “unwarranted diminution of the general duty of landowners—both public and private—to maintain their premises in a reasonably safe condition” (Id.).
Galante “was merely driving a golf cart in the parking lot at the time of her injury.” That the injury occurred “adjacent” to the golf course “does not alter the analysis. The Court unanimously reversed the order and remanded the case to the Appellate Department “for consideration of issues raised but not determined on appeal to that Court.” This includes the denied summary judgment motion and appeal based on purported waiver and release. If Galante does see a jury, the case will be valuated pursuant to New York’s comparative fault doctrine, and her behavior will be as closely examined as that of the golf course, the Parks Department, and the car driver.
Commentary
Recreational activities and sporting events of every kind involve risk of injury, whether contests that intend to injure the opponent such as boxing, or merely hopscotch. Injuries lead to litigation. Counsel should consider the possible impact that the doctrine of assumption of risk. Earlier this year, Sports Litigation Alert featured an article about Gee v NCAA. Gee played football at USC. After his death, an autopsy revealed the presence of CTE. His estate sued the NCAA. The NCAA won at trial and, the California Court of Appeal affirmed the decision. It applied the primary assumption oi risk doctrine to playing college football. Gee v NCAA, California Court of Appeal, Second District, Case No. B327691 (12-24-2-25)). For a discussion of Gee, see: “California Appellate Court Upholds Dismissal of USC Linebacker’s Wrongful Death Claim Against NCAA”, Sports Litigation Alert, Volume 22, Iss. 6 (3-21-2025)).
Kudelski is similar to Gee, Both participated in a sport and were injured as a direct result. Katleski and Gee’s Estate lost, as each court applied the “doctrine” of primary assumption of risk. The Katleski Court recognized both that this doctrine was a judicial creation, but “its retention” was “necessary to promote free and vigorous participation in sports and recreative activities.” This “’possess enormous social value, even while they involve significantly heightened risks’”,) Katleski, quoting Grady, 40 NY 3d at 93-94).
This same spring, Sports Litigation Alert recently reported on the misapplication of this doctrine: “Court: Assumption of Risk Doctrine Does Not Apply to Delivery Driver in Sports Law Case.” Sports Litigation Alert, Volume 22, Issue 7 (4-4-2025). That plaintiff, Hankey, was hit by a flying hockey puck, not as a hockey player, official or spectator, but was merely delivering pies to the arena where the sports activity was taking place. This is similar to Galante. Whatever she intended to do, she was not playing golf, she was not on the course getting ready to play, watching or officiating. She was in the parking lot in a golf cart when the cart was struck by a car.
The defense counsel in Katleski used discovery to gather helpful admissions from the plaintiff. From the start both the Appellate Division and Court of Appeals stated that the primary assumption of risk doctrine applied as he was fully aware of the danger. Katleski was thus left with the Herculean task of proving that the course he knew so well, enhanced the risk either by its layout, or the way the tournament was operated. He could not make either showing. He is thus left with a cost bill to pay.
Counsel in sports injury cases should determine from the outset if the doctrine of assumption of risk applies in the relevant jurisdiction If it does apply, is there a viable showing that the list of possible defendants enhanced the risk of injury? That will depend upon the specific facts and prior case precedent. The National Golf Course Owner’s Association appeared as amicus curiae for the defendant course, speaking directly to a national standard of care for golf course design. Defense counsel may wish to contact that body in future golf course injury cases, while plaintiff’s counsel may need to contemplate how to counter or exclude similar filings.
