New York state’s highest court, the Court of Appeals, has affirmed summary judgment for a golfer, who hit a golf ball that struck and seriously injured his friend.
The court held that the plaintiff assumed the risk of injury and declined to hold that the defendant golfer breached a duty to provide a timely warning to others within the “foreseeable ambit of danger,” since the plaintiff was approximately 50 degrees away from the intended line of flight of the subject golf ball.
The court applied the doctrine of assumption of risk because the possibility that a golf ball will be misdirected, often in unanticipated directions, is an inherent risk associated with the sport of golf. Significantly, the court analogized it to the risk of being hit by an errant ball at a baseball, basketball, soccer, or tennis game and determined that the risk is “equally inherent” in each sport.
In this case, the court concluded that the plaintiff assumed the risk of being struck by a poorly executed shot. It further determined that the defendant’s failure to shout a warning, such as “fore,” while a violation of golfing tradition, did not rise to the level of creating a dangerous condition over and above the usual dangers inherent in participating in the sport of golf. Therefore, the court agreed that the plaintiff could not establish a negligence action and affirmed summary judgment on behalf of the defendants.
The incident leading to the lawsuit occurred on the morning of October 19, 2002, when the plaintiff, Azad Anand, and the defendant, Anoop Kapoor, went to the Dix Hills Park Golf Course to play golf with a friend, Balram Verma.
During play at the first hole, after each member of the threesome had hit two shots, they separated and walked toward their respective golf balls. At his deposition, the plaintiff testified that as soon as he located his ball on the fairway and turned around to assess where the other members of his group had gone, he was struck by the defendant’s misdirected ball. The plaintiff estimated that he was approximately 15 to 20 feet in front of the defendant when the errant ball was hit. He admitted that it was customary for members of the same golfing party to stand behind the person hitting the ball.
Although Verma similarly testified at his deposition that the plaintiff’s ball was about 20 feet forward of the defendant’s ball at the time of the accident, he additionally indicated that the plaintiff was at an angle approximately 50 degrees away from the green where the defendant was directing his shot.
By contrast, the defendant testified that the plaintiff was standing at a considerably greater distance in front of him when the shot was hit, and was at an angle approximately 60 to 80 degrees away from his intended line of flight. While the defendant did not see anyone standing between his ball and the hole when he approached to make his shot, he admitted that he did not actually know where either the plaintiff or Verma was prior to hitting the ball. While the defendant further maintained that he shouted out a warning to the plaintiff when he realized that the ball was headed in his direction, neither the plaintiff nor Verma heard any warning.
Shortly after the lawsuit was filed, the defendant moved for summary judgment, dismissing the complaint. In support of his motion, he argued that the plaintiff had assumed the risk of being hit by a misdirected golf ball by voluntarily participating in the game of golf. The defendant also argued that, even assuming that a golfer owes a duty to another person to give warning by yelling “fore” before hitting the ball, such a duty only exists where the other person is within the intended line of flight of the golf ball. Citing how own, as well as Verma’s deposition testimony, and a photograph recreating the respective positions of the three golfers prepared by the plaintiffs’ counsel, the defendants maintained that the plaintiff was standing at an angle so far from the intended line of flight that “he was not within the foreseeable ambit of danger.”
The plaintiff countered with an affidavit from a golf professional, who opined that the defendant violated the “universally recognized” rules and procedures of the game “by making a shot without first ascertaining that the other members of his group were not in a position to be struck by an errant ball, and by failing to give warning before striking the ball.”
The Supreme Court, granted the defendant’s motion for summary judgment, concluding that while this was a terrible accident, being struck by an errant golf ball was an inherent risk of the game of golf. The court further concluded that no one was in the intended line of flight when the defendant struck the ball.
Several appeals followed, capped by the instant opinion.
To see the opinion, visit: http://www.courts.state.ny.us/ctapps/decisions/2010/dec10/222mem10.pdf
Attorneys of Record: (for appellants) Steven Cohn, P.C., Carle Place, N.Y. (Susan E. Dantzig of counsel). (for respondent) Ryan, Perrone & Hartlein, P.C., Mineola, N.Y. (William D. Hartlein and William T. Ryan of counsel).
