“New York court says golfers aren’t required to yell ‘fore!’”

by Walter Olson on May 3, 2009

At a Dix Hills, Long Island golf course, Dr. Azad Anand was injured when his golfing buddy hit the ball flying without yelling the traditional cry of “fore”. A New York appellate court, however, “said getting hit by an errant ball is an ‘inherent risk of the game of golf.’” [AP/Staten Island Advance] More: John Hochfelder discusses the concept of the “foreseeable danger zone“.

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New York Injury Cases Blog
05.03.09 at 3:27 pm

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1 VMS 05.03.09 at 1:11 pm

The actual decision is here: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03110.htm

I agree with primary assumption of the risk concept as it applies to NEGLIGENT conduct inherent in the sport. I did not read the Complaint in this matter, but I have to assume that it only alleges negligence.

I believe that if the Complaint alleged (in the alternative) that Dr. Kapoor were reckless by driving a golf ball when he knew or should have known that a person was standing 15-20 feet in front of him (albeit 50 degrees away from his intended target), the case would have gone forward rather than getting dismissed. Assumption of risk does not apply to reckless conduct, and a good argument for recklessness could be made in such a situation.

Everyone knows that duffers routinely hit golf balls up to 85 degrees from the intended line of flight. Just go to any driving range and observe. Everyone also knows that even a duffer can hit a golf ball with enough speed to be lethal or cause serious injury.

I believe that it is reckless to hit a golf ball without checking whether or not your golfing party is behind you or someone is in the zone of danger, whether or not “fore” is yelled. Yelling “fore” would probably not have mattered since a driven golf ball traverses 20 feet with insufficient time for one to react. I also find it incredible that Dr. Kapoor did not know that Dr. Anand was standing at approximately 2 o’clock at 20 feet since the shot had to have been a “slice.” In any event, I believe that it is reckless for a golfer not to check the zone of danger for people and to ensure everyone is behind him before he hits the ball.

If a football player suffers a broken neck from a flagrant face mask violation, if he alleges only negligence, the case will be dismissed on assumption of risk grounds because tackling someone by the face mask gives “a competitive advantage to the game.” On the other hand, if he alleges recklessness, the case will probably go to the jury. The turkey hunter case Jacobs v. Kent, cited in the dissenting opinion, determined that it was a question of fact for the jury to determine if it were reckless for someone to shoot without actually seeing the whole turkey.

The lesson learned from Anand v Kapoor is that plaintiff’s attorneys need to better draft their complaints and allege recklessness in sports injury cases. A jury will then determine if the conduct arose to that level.

2 John Hochfelder 05.03.09 at 3:36 pm

I don’t think VMS is correct in suggesting that the ruling in Anand v. Kapoor would have been different if plaintiff had asserted a reckless conduct claim. Recklessness is harder, much harder, to prove than mere negligence and, in any event, since the court concluded that the defendant’s conduct was not negligent I see no way it would have then gone on to allow a recklessness cause of action to go to a jury. I discuss this case in detail today at my blog site.

3 John Burgess 05.03.09 at 4:43 pm

I think a case of negligence could equally be made against Anand. Only a fool stands forward of a golfer less than a hundred yards distant. Anand negligently put himself in a hazardous position by not standing to the rear.

Golf, clearly, is a hazardous game. I recommend that only lawyers be permitted to play as it will naturally reduce the number of lawyers who obviously earn too much money if they can afford club fees.

In the alternative, I suggest that golfers be required to wear protective gear. Something along the lines of what’s worn for ice hockey might do, but only if it is three or four inches thicker all around.

4 Todd Rogers 05.03.09 at 9:56 pm

One has to wonder if the outcome would have been different in Judge Smail’s court.

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