Many of my friends are avid golfers. Fanatics. This column is for you.
Jack Ahn, Johnny Shin and two others played a round of golf at Rancho Park Golf Course. One of the foursome left the group after playing the tenth hole, presumably after being bored to death. But that’s my view. I also take three hours to get to the tenth hole.
The remaining three finished the twelfth hole. Ahn walked up an embankment to the thirteenth hole and got ready to tee off.
Shin headed for the thirteenth hole, but stopped on the cart path before the tee box, took out his water bottle and checked his phone for messages, after making eye contact with Ahn. Shin was 25 to 35 feet away and to the left of Ahn at a 40 to 45-degree angle.
Ahn takes his shot. You guessed it. The ball careens to the left and hits Shin in the head, badly injuring him. At the time he teed off Ahn could not see Shin.
Fortunately Shin recovered. Enough at least to sue his good friend Jack Ahn.
Ahn defended on the well known principle that in sports activities, including golf, the participants generally assume the risk of injuries ” like being hit by a poorly struck golf ball.
However, the trial court ruled in favor of Shin saying Ahn was responsible because he did not determine where each member of his threesome was when he teed off, nor did he yell “fore.” (And I always thought “fore” was to let everyone know you hit a long-ball.)
Ahn appealed. The court of appeal recited two rules of law. A golf course is liable only if it does not provide a “reasonably safe course” to play. But “as between golfers, the duty is to play within the bounds of the game; to not intentionally injure another player or to engage in conduct that is so reckless as to be totally outside the range of ordinary activity involved in golf.” That’s the standard rule for sports participants.
The court of appeal concluded that a golfer who tees off without ascertaining the location of the individuals in his threesome increases the risks to others resulting in liability.
The court discussed several golf cases. One where a golfer’s ball hit a yardage marker, ricocheted off and hit someone. No liability; comes with the territory.
In another case a golfer was hit by a shot from an adjacent fairway. Again, an inherent risk of the game.
However, another case found liability where a golfer hit a late “mulligan,” unbeknownst to other members of his foursome who were in front of him “in the line of fire,” as the court wrote. The unannounced shot increased the inherent risk of the game.
In the end, Shin may proceed in his case against his (former) buddy Ahn; however, any recovery likely will be reduced because Shin was “comparatively negligent” by stopping in the line of fire to drink water and check for phone messages without alerting Ahn, like my golfing buddies do.
I disagree with this case, and side with the dissenting justice who argued that the failure to yell “fore” is not reckless or intentional conduct. Shin is in no position to complain that Ahn increased the risk of his being hit by a ball because of his own actions hanging around in front and to the side of the tee box.
This case arguably requires a golfer to yell “fore” before virtually every shot, which inappropriately changes the game. Tell me if I am wrong.
The dissenting justice concluded: “Shin’s duty was, in the words of W. C. Fields, to ‘stand clear and keep his eye on the ball.’ Being hit by a ball is an inherent risk of golf; that shots go awry is a risk that all golfers, even the professionals, assume when they play.”
Jim Porter is an attorney with Porter· Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. He may be reached at email@example.com or at the firm’s web site http://www.portersimon.com.
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