Another High Court Takes Up Negligent-Golfing Issue

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New York's highest court will hear arguments tomorrow in a case that raises the perennial question: Does a golfer have a legal duty to yell "Fore"?

A trial judge and a panel of the Appellate Division agreed that Dr. Azad Anand could not sue Dr. Anoop Kapoor for hitting him in the head with a golf ball in 2002. According to the report, each man set off to find his ball after the second shot of the day. Anand testified that he found his ball, turned around, and was hit in the face by Kapoor's golf ball. Kapoor testified he had shouted a warning when he realized the ball was headed toward his friend. But neither Anand nor a third member of the group heard such a warning, according to their testimony. The third party testified, in fact, that Anand was only 15 or 20 feet from Kapoor, which would not provide enough time even to make a "Look Out!" face, let alone shout "Fore!" in time.

Kapoor testified that Anand was further away than that, but also that he was standing 60-80 degrees from the line of the intended shot, which only seems to help establish that Kapoor is a really bad golfer.

The lower courts ruled against Anand based on "assumption of the risk," a doctrine that precludes most liability for injuries that occur as part of (usually) a sporting event. If you are hit by a foul ball at a baseball game, in most states you cannot recover for this reason. Same for golf. There is an exception if there's evidence that the defendant did something unreasonable that increased the risk already inherent in the sport, and on appeal one dissenting judge said there was at least an issue for trial as to whether that happened here.

This is not the first time that the duty-to-yell issue has been taken up by a state high court. In 2006, citing the same doctrine, the Hawaii Supreme Court held that the risk of being hit by a golf ball is indeed an inherent risk of the sport. "Social policy dictates that the law should not discourage participation in such an activity whose benefits to the individual player and to the community at large are so great," wrote that court, and while that still seems like a huge exaggeration of the benefits of golf, it is also the law.

I thought I recalled one other similar case, and after searching the archives I guess it is somewhat similar. See "Golfer Sues Course After Hitting Himself With Ball," Lowering the Bar (Feb. 5, 2009). That case, unsurprisingly, also involved a claim that the golf course had failed to post warnings to inform golfers they might somehow manage to whack themselves in the eye. I will follow up to see how that case came out, but I don't expect to be surprised.