The New York Appellate Division affirmed, in a 4-1 opinion, a trial court’s ruling granting summary judgment in favor of a golfer who struck his friend in the eye with a golf ball. Both the plaintiff and defendant were medical doctors and friends… before the accident.
In his lawsuit and at deposition, the Plaintiff alleged that he had located his ball and turned around to see where the others in the threesome had hit their balls when he was struck by the defendant’s misdirected ball. The plaintiff estimated that he was approximately 15 to 20 feet in front of the defendant when the errant ball was hit. He admitted that it was customary for members of the same golfing party to stand behind the person hitting the ball. The defendant admitted that he did not know where the other golfers were when he hit the ball. The defendant claimed he shouted a warning, but no one heard the warning. (For purpose of summary judgment assuming the facts most favorable to the Defendant, the assumption is there was no “fore” warning.)
On summary judgment, the defendant argued assumption of the risk and that there is no duty to yell “fore!” when another golfer is in the intended line of flight of the golf ball. Defendant further argued with photographical evidence that he hit a really bad shot that, accordingly, was not foreseeable. (I love turning “I hit an awful shot” into a legal defense.)
The dissenting opinion argued that the defendant’s failure to follow an established rule of golf etiquette to yell “fore” created an unreasonably increased risk, which the plaintiff did not assume by playing golf.
The dissent also makes another interesting argument to negate the assumption of the risk argument. The dissent states assumption of risk doctrine in sports does not mean that a participant in a sport assumes the risk of conduct which unreasonably increases the sport’s inherent risks, noting the policy behind assumption of the risk in participant sports facilitates “free and vigorous participation in athletic activities.”
Accordingly, the dissent found that because a golfer’s failure to shout “fore” before hitting the ball provides no competitive advantage, the assumption of risk does not apply.
What do we take out of this case? First, many doctors do not have a problem with filing lawsuits as long as they do not involve medical malpractice lawsuits against them. Second, golf can be a dangerous game. Third, attorneys in Maryland should keep in mind there are creative arguments around assumption of the risk defenses in serious injury participant sports cases.
I’m not saying this is a good case. I don’t like the jury appeal of the liability argument in the case, although the court hinted the injuries were serious. But lawyers too often stop thinking at the words “assumption of the risk” without looking at creative arguments to negate the defense.