Pennsylvania Case Emphasizes Importance of “Participants” and “Circumstances” in Determining Liability for In-Game Injuries

Mar 12, 2010

By Peter C. Buckley, Esquire
A recent decision from the Pennsylvania Superior Court shows that not every injury that occurs during a sporting event is so inherent in the game or so “common, frequent and expected” that the one causing the injury can escape liability. The case of Zeidman v. Fisher, 980 A.2d 637 (Pa. Super. 2009), suggests that the assumption of the risk and “no duty” rules cannot be blindly applied and that the circumstances of each injury must be examined to determine whether to impose liability. According to the court, liability for in-game injuries requires a detailed examination of the game situation and an in-depth study of the participants focusing on their physical attributes, skill level, recent performance, amateur status, and knowledge of etiquette and rules of the game, among other factors.
Stuart Zeidman, Troy Fisher and Larry Rashkow played together in a charity golf outing held at Springfield Country Club. As the threesome assembled on the 17th tee, they became concerned that Zeidman and Rashkow – who were capable of long tee-shots – might drive their balls into the group of golfers playing ahead of them on the uphill, 301-yard par 4 17th hole. To ensure the safety of the other group, Zeidman – who was not a long driver – hit his tee shot and then, with the agreement of his playing partners, drove ahead in a golf cart to determine whether it was safe for Fisher and Rashkow to tee-off. After disappearing over the crest of a hill, Zeidman saw that the other group had cleared the green, prompting him to return to the tee to inform Fisher and Rashkow that they could safely strike their balls. As Zeidman returned to the tee along the cart path, Fisher and Rashkow observed the other group leaving the area of the 17th green. Before Zeidman reached the tee to communicate his observations, Fisher struck his drive, unleashing a “snap hook” that struck Zeidman in the face causing serious and permanent injuries.
Zeidman sued Fisher, but the trial court dismissed his case on a motion for summary judgment finding that Zeidman failed to prove that Fisher acted unreasonably or that Fisher breached any duty of care owed to Zeidman. The trial court also found that Zeidman’s claims were barred, because he had “assumed the risk of the uncertain activity of golfing.” Zeidman appealed the trial court’s decision. The Pennsylvania Superior Court found that, under the facts of the case, Zeidman was entitled to his day in court because he had presented evidence sufficient to overcome the assumption of risk and “no duty” rules. Specifically, the Superior Court found that a jury must determine whether Zeidman’s injury was inherent or “common, frequent and expected” in the game of golf.
The Superior Court’s decision is noteworthy as the court suggests that the decision to impose liability under the circumstances may be impacted by “Fisher’s physical strength or power, his skill level, the quality of his play that day, his status as a professional or amateur, his knowledge of the etiquette of the game and the expectations of fellow competitors, the location of golfers within range of his tee shot and their awareness of his intention to hit a tee shot, and the need or lack of need to hurry or play fast.” While the court’s decision to send the issue of liability to a jury was consistent with prior case law, its suggested level of analysis was unexpected. By referencing Fisher’s specific physical and mental abilities, Zeidman’s expectations, and the specific circumstances that caused Zeidman’s injury, the court suggests that the issue of liability is extremely subjective. In other words, this is not a case of a golfer hitting another golfer with a tee shot; rather, this is a case of Fisher (an experienced golfer, known for long drives and very few “snap hooks”) hitting Zeidman (who “had every right to anticipate none of his playing partners would attempt a tee shot until his return to the tee box”) with a “snap hook” on the 17th hole of Springfield Country Club (an uphill, 301-yard par 4).
As such, the issue of liability turns on whether the risks giving rise to the injury were “common, frequent and expected” for the activity. For example, while a spectator seated in the stands of a baseball game may not recover for injuries caused by a foul ball, that same spectator may recover if struck in an area of the stadium where the risk of injury from a foul ball is not “common, frequent and expected.” Likewise, a forecaddie may not recover when struck by a drive he was tasked with locating from the fairway unless, of course, he was already looking for the golfer’s other tee-shots and had no reason to expect the golfer to hit a third drive. Through this series of examples, the court demonstrates that the injured party’s subjective and objective expectations play a large role in determining whether to impose liability. Game participants must guard against “common, frequent and expected” risks, which they are deemed to have assumed; however, they cannot be expected to protect themselves where the circumstances suggest that their guard can be let down.
The court’s analysis of Zeidman’s injury further undermines the “continuing vitality of the assumption of the risk doctrine” and demonstrates that any bright line that may have existed with regard to liability for in-game injuries has been replaced with shades of grey. In so finding, the court stressed the “utility of communication to prevent injury,” calling for game participants to advise their fellow competitors of unusual risks so that they may act to avoid them.
Peter Buckley is a litigation practice group attorney with Fox Rothschild LLP, resident in the Philadelphia, PA office. He can be reached at 215-299-2854 or


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