In a brief opinion released today, the New York Court of Appeals agreed with lower courts that a golfer hit by an "errant" shot could not sue his co-golfer for negligence, because one who chooses to golf assumes the risk of being whacked by a golf ball:
A person who chooses to participate in a sport or recreational activity consents to certain risks that are inherent in and arise out of the nature of the sport generally and flow from such participation. A court evaluating the duty of care owed to a plaintiff by a coparticipant in sport must therefore consider the risks that the plaintiff assumed and how those assumed risks qualified defendant's duty to him. However, a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks. . . . [T]he manner in which Anand was injured -- being hit without warning by a "shanked" shot while one searches for one's own ball -- reflects a commonly appreciated risk of golf.
I wrote about this case in more detail last month when the court heard argument. As I noted then, the Hawaii Supreme Court has also applied the assumption-of-risk doctrine to hold that there is no duty to yell "Fore" (or anything else) even if it looks like your ball and another golfer are likely to intersect. It is likely that this is the law in other states as well, but at least in these two states, watch out. Especially if golfing with me.
To be entirely safe from lawsuits, though, you should still, as I do, loudly give all other golfers express notice of the risk inherent in golfing with you each time you take a swing:
ATTENTION: please be advised that this sport has certain inherent risks, including, but not limited to, the risk of you being hit by the ball at which I am about to swing. Further, due to the presence of trees and other obstacles on the course, my utter lack of skill as a golfer, and my heavy use of mind-altering substances, your position directly behind me does not eliminate the risk. Goggles and/or other protective gear would be advisable.
Here I go.
An additional benefit from engaging in this practice is that you will never be asked to play golf again.
The opinion in the New York case is available here.
