Porter hits issues on the head now and then
A year ago we reported on a case where a golfer’s errant tee shot hit his buddy in the temple causing serious damage.
The trial court and Court of Appeal ruled in favor of the recipient of the golf ball ” the guy with the dimpled temple ” finding liability on the golfer teeing off. I disagreed with the decision writing, “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.”
Just ask my golfing friends. I like being right.
Jack Ahn and Johnny Shin were playing golf at Rancho Park Golf Course in L.A. They finished the twelfth hole. Ahn reached the thirteenth tee first. As he said later, “I looked to see if the area directly ahead of me where I was aiming was clear … I focused on the golf ball for 15 to 20 seconds … and then I hit the ball.”
Moments before, Shin was heading towards the thirteenth tee but stopped to get out a bottle of water and check his cell phone for messages (there’s a lesson). He was standing in front and to the side of Ahn, slightly downhill and out of sight.
Ahn inadvertently “pulled” his shot to the left at a 45 – 50 degree angle (not easy to do) ” hitting Shin in the head. The beginning of a lawsuit.
Shin recovered enough to sue his good buddy Jack Ahn. Ahn defended on the well known principle that in sports activities, the participants generally “assume the risk” of injuries ” like being hit by a poorly struck golf ball.
The trial court and Court of Appeal ruled Shin did not assume the risk, finding Ahn responsible because he did not confirm where Shin was nor did he yell “fore!” Like that would have helped.
The Court of Appeal relied upon the rules of golf etiquette, the first being, “Players should ensure that no one is standing close by or in a position to be hit by the club, the ball or any stones, pebbles, twigs or the like when they make a stroke or practice swing … If a player plays a ball in any direction where there is a danger of hitting someone, he should immediately shout a warning. The traditional word of warning in such situations is “fore.”” (USGA, the Rules of Golf, Etiquette.)
Ahn appealed to the California Supreme Court arguing again that Shin assumed the risk of being hit, especially by stopping in front of the tee box knowing that from time to time a golfer will pull or shank a shot. (For a right handed person a pull is to the left, a shank to the right). As a lawyer I know golf. As a golfer I know pulls and shanks.
The Supreme Court discussed other sports cases starting with the Knight case where a touch football player was injured when his fingers were stepped on; the Cheong case where a skier unintentionally ran into another skier; the Kahn case where a 14-year-old novice on a swim team broke her neck during a meet when she dove into a shallow racing pool; the Dilger case where a golf shot crossed a fairway and hit a golfer in a different group; also the Avila case where a pitcher intentionally threw a “beanball” at an opposing batter causing severe injuries (part of the game).
In all those cases and many more the courts found that the sports participants assume the risk of injury.
The Supreme Court listened to me, reversed the Court of Appeal and ruled in favor of Ahn finding the assumption of risk doctrine applies to golf even though it is a more passive sport than touch football or skiing.
“We hold that golfers have a limited duty of care to other players, breached only if they intentionally injure them or engage in conduct that is “so reckless as to be totally outside the range of the ordinary activity included in the sport.” The Court of Appeal relied too heavily on golf’s Rules of Etiquette.”
Although the Supreme Court found that Shin assumed the risk of being hit in the head by a golf ball, they also ruled it wasn’t clear whether Ahn acted recklessly when he teed off without first seeing where his threesome buddy was.
Johnny Shin gets to take his case to a jury to rehash the facts of the golf incident to see whether Ahn’s tee shot was reckless. Shin gets his day in court and probably settles for a nice sum.
Duffers around the state should breathe a sigh of relief that they can’t be sued every time they hit a bad shot. However, if the golf shot is totally “reckless” they may be responsible. Sometimes a fine line.
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