SAIGH LAW, P.L.L.C.

Archive for June, 2009

NEW YORK – A split panel has found that Golfers have no legal duty to yell ‘FORE!’ before hitting the ball.

Jamal Washburn faced a negligence suit filed in Florida against which stated that he should have used a four-letter word to warn another golfer of a wayward shot.

Jerome Crance, the plaintiff in that case, was seeking at least $15,000 in damages, alleging that Mashburn’s drive hit him in the face during a round of golf at Miami’s prestigious LaGorce Country Club in March 2005.

Mashburn, who retired from pro basketball earlier that year, was playing the 18th hole, while Crance was at the teeing area of the adjacent 17th hole.

According to his lawsuit: “It is the usual and customary practice of golfers to yell “fore” when they hit a shot that is offline or a shot that is about to strike someone. The defendant, Jamal Mashburn, failed to act with reasonable care by failing to give any warning whatsoever.”

On the PGA (Professional Golfers Association) website, yelling “fore” is the proper action to take when a ball has a “remote chance of hitting any other players.”

However, failure-to-yell-fore claims are now dismissed based on the doctrine of “primary assumption of risk” – as long as golfers line up behind each other to hit hard little balls, they should accept the risk of being injured by wild shots – “fore” or no “fore.”

The New York state Appellate Division, Second Department, held in Anand v. Kapoor, 2007-05606, that the defendant could not be held liable to Plaintiff for ignoring one of the “universally recognized” customs of golf before he shot a ball into Plaintiff’s eye.

The decision represents an overturning of a line of precedents fashioned by the courts to deal with accidents stemming from a game that was played by 29.5 million Americans in 2007, according to the National Golf Foundation.

These accidents are not unusual. Even with the most intense concentration and skill, a 45.93-gram golf ball can fly in unpredictable directions, striking people and property.

The 3-1 Second Department majority affirmed, holding that, given the circumstances of the accident, the Defendant could not have reasonably anticipated that Plaintiff was in any danger from his shot. It held that the suit had to be rejected because the risk of being struck by a misdirected shot is an “inherent” part of golf.

The panel states: “While we are sympathetic to the fact that plaintiff was seriously injured as a result of this accident, 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.”

Under that doctrine, 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.” Morgan v. State of New York, 90 NY2d 471 (1997).

Only reckless or intentional conduct, or concealed or unreasonably increased risks, can give rise to liability, the panel noted.

According to the Plaintiffs brief, a golf professional testified for Plaintiff that pursuant to “universally recognized” rules and procedures, the golfer who reaches his ball first and is the greatest distance from the green should take the first shot after first ascertaining the positions of his fellow competitors. If other people are in a position where an “errant” shot could strike them, the golfer warns them he is about to shot by shouting “fore.”

The Second Department panel, however, 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.”

[SOURCES]
On Point News by Peyton Burgess (CNS) ]
Jeff Storey of New York Law Journal

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