Golf, like any other recreational activity, runs the risk of accidents on the course – and the resulting injuries often lead to “finger pointing” as to which golfer was at fault. And the game also often raises predictable and unpredictable collateral disputes such as whether a golf club membership is property that can be seized by a judgment creditor; and claims for trespass and nuisance damages when golf balls land on an adjacent property. Several recent examples follow:

MacIsaac v. Nassau County, 2017 NY Slip Op 05814, 2d Dept. July 26, 2017

In an action to recover damages for wrongful death, Supreme Court granted summary judgment dismissing the complaint.

The Second Department summarized the facts and prior proceedings:

On August 9, 2012, John R. MacIsaac…was walking from the 12th green to the 13th tee box on a golf course at Eisenhower Park when he allegedly tripped on a sprinkler system coupling valve in a grass-covered hole, causing him to fall to the ground and sustain injuries which ultimately led to his death. The plaintiff, as administratrix of the decedent’s estate, and individually, commenced this action against the defendant, which owned the premises, alleging, inter alia, wrongful death. The defendant moved for summary judgment dismissing the complaint on the ground, among others, that the plaintiff’s claims were barred by the doctrine of primary assumption of risk[.]

And, as follows, summarily reversed:

Under the doctrine of primary assumption of risk, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”…This includes risks associated with the construction of the playing surface and any open and obvious condition on it[.] The defendant established its prima facie entitlement to judgment as a matter of law on the ground that the doctrine of primary assumption of risk applied[.]

However, in opposition, the plaintiff raised a triable issue of fact as to whether the subject condition was concealed or unreasonably increased the risks inherent in the golf course…In this regard, the Supreme Court erred in rejecting the affidavits and photographic evidence submitted by the plaintiff in opposition to the motion[.]

Dalton v. Macdonald, 2017 NY Slip Op 27404, Sup. Ct. West. Co. December 5, 2017

Defendant moved for summary judgment dismissing the complaint.

Supreme Court summarized the facts:

Plaintiff alleges that on October 28, 2012, she was struck in the head by a golf ball hit by the defendant at the Lake Isle Country Club. At the time of the accident, plaintiff, an experienced golfer, had been a member of the club for approximately eight years, played golf twice a week, and had a twenty-three handicap. Plaintiff and defendant played golf regularly together for four or five years prior to the accident.

On the day of the accident, plaintiff and defendant played in a threesome and started on the back nine. They completed twelve holes before the accident occurred. On the fourth hole, each player hit their tee shot and then their second shot. Defendant’s second shot went into the rough on the right side of the fairway which was covered with leaves. After defendant hit her second shot from the right side of the fairway, plaintiff and her riding partner drove over to her ball which was on the left side of the fairway near the sand trap. However, defendant, knowing that she would not be able to find the ball because the rough was completely covered in leaves dropped another ball and hit a “mulligan” shot. Defendant’s intent was to hit the ball straight towards the green located on the right, however, the ball went approximately 40 to 45 degrees to the left and struck plaintiff. At the time, plaintiff was partially in the cart and was about to exit the cart when she was struck on the right side of her head. Defendant testified at an examination before trial that she didn’t yell anything prior to taking the shot because she could not see plaintiff’s golf cart and she assumed her ball traveled the line that she intended. Plaintiff testified that defendant was over her right shoulder and she did not see defendant swing at the ball that hit her.

The contentions of the parties:

Defendant moves for summary judgment dismissing the complaint on the grounds that the doctrine of assumption of the risk is applicable. She claims that errant golf shots are part of playing and participation in the game of golf even at the professional level.

In opposition, plaintiff argues that triable issues of fact exist and the doctrine of assumption of the risk is not applicable. Plaintiff states that defendant dropped another ball and hit a mulligan shot without telling anyone. Plaintiff attests that it was impossible for defendant not to see plaintiff’s cart which was only thirty to forty degrees off the intended line of ball flight and that she knew the location of plaintiff’s ball. Plaintiff argues that defendant could not have reasonably expected plaintiff to wait for her to hit a second ball.

The applicable law:

Pursuant to the doctrine of primary assumption of risk, “a voluntary participant in a sporting or recreational activity `consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation'”…The doctrine does not, however, serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased…”[A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff”[.]

Furthermore, “in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are `unique and created a dangerous condition over and above the usual dangers that are inherent in the sport'”[.]

Applied the facts to the law:

Here, defendant failed to establish her prima facie entitlement to judgment as a matter of law. While being struck in the head without warning by an errantly hit golf ball is a risk inherent in playing golf…the possibility that the ball will fly off in another direction is a risk inherent in the game”…The plaintiff, who was an experienced golfer and was admittedly aware of the possibility of being struck by an errant ball, assumed this risk by entering the tournament[.]

And concluded that:

[I]ssues of fact exist as to whether defendant’s failure to warn that she was taking a “mulligan” shot amounted to intentional or reckless conduct that unreasonably increased the risk inherent in golf. Indeed, defendant had already taken her second shot when plaintiff and her riding partner drove over to their balls on the left side of the fairway near the sand trap. It was at that time that defendant dropped another ball and hit a “mulligan” shot without warning plaintiff.

Herman v. Weisner, 2017 NY Slip Op 51943(U), Sup Ct. Nass. Co. November 30, 2017

Supreme Court addressed a motion for summary judgment by defendant, Barry Weisner, dismissing the complaint of plaintiff, Bryan Herman.

The Court summarized the facts:

This case arises out of personal injuries allegedly sustained by the Plaintiff on August 5, 2015, when he was hit in the face by an errant golf ball hit by the Defendant while playing golf at the Golf Club at Middle Bay in Oceanside, New York. At the time of the incident, the Plaintiff and his foursome were playing on the 8th hole while the Defendant and his group were playing on the 15th hole. It is undisputed that the 8th hole runs parallel to, but in the opposite direction of the 15th hole; and that the two holes were separated by a dense line of trees, measuring approximately 125 yards in length and 10 to 15 yards in width. After the Plaintiff’s foursome hit their tee shots, the Plaintiff claims that he walked off the 8th fairway and onto the 15th fairway to look for a golf ball of a member in his group when he was struck in his right eye by a golf ball hit by the Defendant from the 15th tee box. It is further undisputed that the Defendant did not yell “fore” prior to hitting his shot.

Herman’s deposition testimony:

[H]erman, testified at an Examination Before Trial…Herman is fifty-one-years old and has been playing golf since he was twenty-four…Herman considers himself an “avid golfer” and has traveled internationally to play golf…He has also played in a “formal match”…The last “index” or “handicap” Herman could recall having was a “12”, and prior to that he was a “5 handicap”.

[H]erman, testified that on the date of the incident, he was voluntarily playing a game of golf at Middle Bay Golf Club with Luke Magliaro; Luke’s brother, Mark Magliaro; and Luke’s son, Ryan Magliaro…At the time of the incident…Herman, and his group were playing the 8th hole[.]

Herman’s recollection of the events leading up to the incident and his positioning at the time he was struck by the golf ball is contrary to the testimony of two nonparty witnesses, Luke and Mark, that were playing in the Plaintiff’s foursome. Herman testified that his tee shot from the 8th tee box landed in the middle of the 8th fairway; and that Mark’s tee shot hooked left past the dense part of the tree line that separated the 8th and 15th fairways and landed in the fairway of the 15th hole…Significantly, at that time, Herman did not observe anyone on the 15th tee box [.]

Herman’s group had two golf carts. Herman and Mark were riding in one golf cart, while Luke and Ryan were riding in the other…Herman testified that after they hit their tee shots, Mark dropped Herman off in the middle of the 8th fairway where Herman’s ball allegedly landed. According to Herman, Mark then proceeded to “circle to look for the ball”…Shortly thereafter, Herman testified that he walked over to help Mark locate his ball as he was still “circling in the open area of the 15th hole”…Herman later testified that he did not recall “the exact spot” where Mark was circling, and that he was “circling around the 15th fairway/rough”[.]

When Herman was walking towards the 15th fairway to help Mark look for his ball, there was nothing obstructing his view of the tee box on the 15th hole. Per Herman, he was able to see it “clearly”…During that walk, Herman looked up and did not see anyone on the 15th tee box. When he stopped at the spot where he thought Mark’s ball had landed, Herman looked up again at the tee box, did not see anyone, and then put his head down to start looking for the ball…Herman consistently maintained throughout his deposition that he did not observe anyone at the 15th tee box prior to being struck…Herman explained that his purpose in looking up at the 15th tee box was to “make sure there was nobody hitting.”…Herman testified that he was struck by Weisner’s ball less than a minute later[.]

* * *

According to Herman, from the vantage point of the 15th tee box, he was struck approximately 80 yards from the tee box and approximately 20 to 25 degrees to the left of the center of the fairway[.]

Herman was struck in his right orbit…Immediately after being struck, Herman recalls screaming and stumbling “quite a bit” until he eventually hit the ground…Herman could not specify the number of yards or feet he stumbled before falling to the ground; and described it was not as much as 100 yards, but more than a few feet[.]

Herman admitted at his deposition that he would have an obligation to let the Defendant and his group play on the 15th hole had he seen them prior to searching for a ball on the wrong fairway[.]

The deposition testimony of Luke Magliaro:

Luke was playing golf with the…Herman, on the date of the incident. Luke testified at his nonparty deposition that he is a skilled golfer who had played at the subject golf course on approximately four (4) prior occasions…Luke explained that the line of trees separating the 8th from the 15th fairway was approximately 125 yards in length; and the distance from the end of the line of trees to the 15th tee box was approximately 75 to 100 yards[.]

Contrary to Herman’s testimony that Herman’s tee shot landed in the middle of the fairway, Luke testified that Herman’s tee shot landed in an area of the rough to the left of the 8th fairway…Luke’s own tee shot landed in the middle of the 8th fairway past the end of the line of trees that separated the two holes…According to Luke, after the foursome hit their tee shots, Luke and Ryan (who were riding in a golf cart together) drove to Luke’s ball located in the center of the 8th fairway. At that point, Luke observed his brother, Mark, sitting in the other golf cart that was stopped in the rough off the fairway…Herman, was standing behind the cart lighting a cigar…Immediately prior to that, Luke glanced at the 15th hole and observed a threesome at the 15th tee box…Markedly, Luke was able to view the Defendant’s threesome at the 15th tee box from his location on the 8th fairway, while the Plaintiff claims he did not see anyone on the 15th tee box while allegedly on the 15th fairway.

Luke testified that he had the Plaintiff under his constant supervision until the time he was struck[.]

* * *

Luke estimated the distance between the 15th tee box and the location where Herman was on the ground was approximately 150 yards; and at an angle between 45 and 90 degrees…Luke did not hear or see the golf ball hit any trees prior to striking the Plaintiff…He also did not hear anyone call out “fore” or any other warning prior to the incident.

The deposition testimony of Mark Magliaro:

Mark testified consistently with Luke, and contrary to the Plaintiff regarding the positioning of their tee shots. Mark testified at his nonparty deposition that Luke’s tee shot landed in the middle of the fairway past the line of trees; and Herman’s tee shot landed in middle of the line of trees separating the 8th and 15th fairway, but closer to the 8th fairway side…Contrary to Herman’s recollection, Mark testified that he was a passenger in the golf cart driven by Herman. According to Mark, they located Herman’s ball in the tree line, pulled up past the ball and stopped the golf cart. Mark observed trees on either side of the area where the golf cart was stopped…Mark testified consistently with Luke that Herman was standing behind the cart lighting a cigar at the time the incident occurred[.]

* * *

Mark then “heard the scrape off the cart roof, and then [he] heard [Plaintiff] screaming bloody hell”…Mark also testified consistently with Luke that Herman did not move any appreciable distance from the time he was struck to the time he fell to the ground[.]

Mark did not hear anyone yell “fore” prior to the incident. Nor did he hear the golf ball hit any trees prior to the incident. The only sound he heard was what appeared to be a golf ball scraping off the top of the cart[.]

The photographs:

Photographs taken on behalf of the Plaintiff were marked at the depositions of the Plaintiff and nonparty witnesses that purport to explain the location where the Plaintiff was allegedly struck by the Defendant’s misdirected shot. On one of the photographs, the Plaintiff marked an “X” where he believes he was struck on the 15th fairway…While the Plaintiff’s marking reflects an open area on the 15th fairway, several other photographs depict the Plaintiff on the ground in a shaded area under the dense line of trees that separate the two fairways…The Plaintiff conceded at his deposition that said photographs do not depict him “sitting on the fairway”, but rather, reflect the location where he “eventually” fell after being struck and stumbling some unknown distance until he fell to the ground[.]

Luke also marked an “X” on certain photographs to show the location where the Plaintiff was struck which differed from the area marked by the Plaintiff…Contrary to the Plaintiff’s contention that he was struck in an open area of the 15th fairway, Luke’s marking blatantly reflects that the Plaintiff was struck in a shaded area located under the dense swath of trees on the side closer to the 8th fairway[.]

* * *

In a sworn Affidavit by the Plaintiff’s expert engineer, the distance between where the Plaintiff alleges he was struck by the golf ball and the 15th tee box was measured to be 75 yards, give or take 5 yards…Mr. Krongelb also measured the angle from the center of the 15th fairway to where the Plaintiff claims he was struck to be approximately 8 degrees…Further, Mr. Krongelb measured the distance between where the Plaintiff marked an “X” purportedly depicting where he was struck and where he ultimately fell to the ground. The distance between these two points was measured to be approximately 20 yards…Notably, Mr. Krongelb did not measure the distance between the 15th tee box and where the Plaintiff was found lying on the ground or where Mark and Luke testified the incident occurred closer to the 8th hole side of the line of trees.

Weisner’s deposition testimony:

[Weisner] has been playing golf for approximately twenty years since his retirement. Weisner considers himself a “high-handicap, recreational golfer.”…He typically shoots 25-35 shots over par. Weisner is a right-handed golfer. This means that when “[Weisner slices] a ball it goes to the right of where [he] is aiming and when [he hooks] the ball it goes to the left.”[.]

* * *

On the date of the incident, the Defendant, Weisner, was playing golf with two friends, Sheldon Silverstein and Arthur Smith…At the time of the incident, the Defendant, Weisner, and his group were playing the 15th hole which is a long, straight fairway with the green directly ahead of the tee box more than 350 yards away…There was a group ahead of Weisner’s group on the 15th hole. Weisner’s group had to wait several minutes for the group ahead to move out of range of the 15th hole before hitting their tee shots…Once the hole was clear for them to hit, Smith shot first, Silverstein shot second and Weisner was the last to tee off in his group[.]

Weisner attests that he observed the hole was clear and safe to hit during Silverstein and Smith’s tee shots. He did not see anyone straight in front of them, other than the group that was playing ahead of their group who were well out of range. Prior to hitting his tee shot, Weisner “looked out over the hole both to aim [his] shot and to make sure it was safe to hit away.”…As he prepared to hit, Weisner did not see anyone in the area where he intended to hit the ball. Nor did he see anyone in the tree line to the left (separating their hole from the 8th hole) or hear anything to suggest someone was there. Weisner attests that it was clear for him to hit the ball[.]

When Weisner struck his tee shot, instead of going straight as he intended, the golf ball went high and to the left into the line of trees separating the two holes…He lost sight of the golf ball when it disappeared into the “thick leaves of the line of trees on the left side of the hole approximately 150-170 yards out from [the] tee box but at a sharp angle to the left of the straight line [he] had hoped for.”…He then heard someone cry out. He never saw the Plaintiff or anyone in the line of trees before he hit his ball or while it was in the air. The scream led him to believe someone was struck by the ball, although he did not see the contact. Weisner and the other members of his group then immediately got into their golf carts and drove to the area where the ball disappeared. Weisner then observed the Plaintiff lying on the ground in the shade of the trees, which was the first time he or anyone in his group saw the Plaintiff…Weisner attests that he does “not know if the ball [he] hit struck the plaintiff directly, if it ricocheted off a branch or something else, or that it hit him at all.”[.]

Weisner explains that the distance between where he intended to hit his drive and where it went was at least 45 degrees left of the center line of the 15th fairway. Weisner did not intend to hit the ball into the line of trees[.]

The Silverstein affidavit:

Silverstein submits…that he was looking out over the hole to watch Weisner’s tee shot and never saw anyone before he hit the golf ball. Silverstein avers that there was no one on the hole they were playing, nor did he see anyone on the hole next to them. He further asserts that…Weisner, hit a poor shot in terms of direction because it was far to the left of where a golfer would need to hit the ball to score well on that hole. Silverstein also estimated that Weisner’s shot was at least 45 degrees to the left of the middle of the 15th fairway[.]

The deposition testimony of Smith:

Smith testified consistently with Weisner and Silverstein. Smith attests that he saw no one else on the 15th hole or in the general vicinity before hitting his tee shot, with the exception of the group ahead of them. Smith avers that the hole was clear to hit during all three of their tee shots, including Weisner’s shot…He further submits that Weisner’s “shot travelled at least 150 yards, but was so far to the left of where a golfer wants to be on the hole they were playing, that it disappeared into the thick, overhead canopy of leaves in the line of trees separating the hole [they] were playing from the one to the left of it.”…Smith estimated that Weisner’s shot was 30 to 50 degrees left of the center of the 15th fairway. Smith first saw the Plaintiff when he was lying on the ground in the line of trees after Weisner hit his golf ball[.]

Plaintiff’s’s contentions:

[P]laintiff attests that the…Weisner, was negligent and reckless in hitting the golf ball while the Plaintiff was allegedly in range and in the line of play, in failing to follow the rules of golf, and in failing to provide a warning for the shot which created an unreasonable increased risk of harm to the Plaintiff…The Plaintiff alleges that he suffered severe injuries, including multiple fractures in the area around his right eye, loss of visual acuity, loss of depth perception, and loss of peripheral vision[.]

Defendant’s contentions:

Relying primarily on the seminal [2010 Court of Appeals case] of Anand v. Kapoor…the Defendant submits that he is entitled to summary judgment based on the assumption of risk doctrine. The Defendant argues that the Plaintiff assumed the risk of being hit by an errant golf shot by voluntarily participating in the game of golf. The Defendant further argues that no duty is owed to the Plaintiff to give a warning by yelling “fore” before hitting the ball because the Plaintiff was not within the intended line of flight of the golf ball.

Counsel for the Defendant further asserts that the Plaintiff’s testimony concerning his location at the time of the incident should be found incredible as a matter of law as it contradicts the testimony of all party and nonparty witnesses, as well as photographs taken at the scene. Counsel avers that, accepting the Plaintiff’s version of the incident as true, the sequence of events that would have to occur in under a minute is implausible. In this regard, the Plaintiff testified that (i) he did not observe anyone at the 15th tee box less than a minute before he was struck by the Defendant’s ball; (ii) he was within the intended line of flight of the Defendant’s ball; and (iii) he was standing within the line of play of the 15th fairway. Thus, the three golfers in the Defendant’s group would have to pull up to the 15th tee box, exit their golf carts, select their clubs, wait for the group ahead to move out of range, go through their standard pre-shot routines, and hit their tee shots — all in under sixty (60) seconds.

Plaintiff’s opposition:

In opposition, counsel for the Plaintiff argues that the Defendant failed to meet his initial burden because the primary assumption of risk doctrine does not apply to the facts of this case. The Plaintiff’s counsel relies upon a line of cases which stand for the proposition that a “golfer has a duty to give a timely warning to other persons within a foreseeable ambit of danger, and that duty extends to those in or near the intended line of flight”…In support of the position that the Plaintiff was within the “foreseeable ambit of danger”, counsel relies upon the testimony of Luke and Mark that there was a clear line of sight between the incident location and the 15th tee box.

Counsel for the Plaintiff further asserts that the defense’s theory is predicated upon the Defendant’s claim that the golf ball hit the trees and came down hitting the Plaintiff from a vertical angle. The Plaintiff proffers expert testimony and medical records in opposition to the Defendant’s motion to demonstrate that the Plaintiff was struck by a golf ball travelling in a horizontal direction. Moreover, counsel submits that neither Luke, Mark nor the Plaintiff heard the golf ball hit any trees or branches immediately prior to striking the Plaintiff. Lastly, the Plaintiff’s expert engineer opined that the angle made by the path of the ball with the center of the fairway of the 15th hole was only 8 degrees. Based on the foregoing, the Plaintiff avers that he was within the intended line of flight of the Defendant’s golf shot warranting denial of the motion.

The legal template:

The doctrine of the “assumption of risk” provides that by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of a sport, generally, and flow from such participation…As such, a defendant may be relieved from liability for injuries to a voluntary participant of a sport or recreational activity arising from such risks when the consenting participant has an appreciation of the nature of the risks and continuously assumes the risks[.]

The Anand precedent:

In Anand, the plaintiff was injured by an errant golf shot hit by a member of his own group. At the time the defendant struck the golf ball, he was approximately 15 to 20 feet behind the plaintiff and at an angle just under 90 degrees. The defendant did not know where the plaintiff was when he hit his shot. The ball did not go in the direction intended by the defendant, and instead went sharply to the right at a low trajectory. Defendant did not yell “fore” prior to the stroke.

The trial court granted summary judgment in favor of the defendant golfer. In affirming the trial court, the Appellate Division, Second Department, held that the defendant golfer did not owe plaintiff golfer a duty to give warning of his intent to hit the golf ball; the plaintiff assumed the risk of being struck by a poorly executed golf shot; and the defendant golfer’s failure to yell “fore” did not constitute an unreasonably increased risk which the plaintiff golfer did not assume by participating in the sport…While acknowledging the line of cases that predate Anand which stand for the proposition that “a golfer has a duty to give a timely warning to other persons within the foreseeable ambit of danger”, the Appellate Division held in favor of the defendant golfer finding that the evidence was sufficient to establish that the plaintiff was “at so great an angle away from the defendant and the intended line of flight that he was not in the foreseeable danger zone”…[T]he Appellate Division also acknowledged that “there is no fixed rule regarding the distance and angle which are considered within the ambit of foreseeable danger,” but “if the distance and angle are great enough they are not within the danger zone as defined by previous cases.”

In affirming the Appellate Division, the Court of Appeals [in Anand] held that “[a] person who chooses to participate in a sport or recreational activity consents to certain risks that `are inherent in and arise out of the nature of the sport generally and flow from such participation'”…The Court continued:

However, a plaintiff `will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks’ [defendant’s] failure to warn of his intent to strike the ball did not amount to intentional or reckless conduct, and did not unreasonably increase the risks inherent in golf to which [plaintiff] consented. Rather, the manner in which [plaintiff] was injured — being hit without warning by a shanked shot while one searches for one’s own ball — reflects a commonly appreciated risk of golf[.]

The factual issue before the Court:

[T]he Court must determine whether the Plaintiff was within the intended line of flight of the Defendant’s tee shot and thus within the foreseeable ambit of danger.

Concluding that:

Here, it is undisputed that at the time of the incident, the Plaintiff was playing on the 8th hole while the Defendant was on the 15th hole; and that the two fairways ran parallel, but in opposite directions and were separated by a dense line of trees. The Defendant testified that he did not see anyone on the 15th hole or in the vicinity of the tree line prior to hitting his tee shot. Significantly, the Plaintiff does not dispute this fact. In fact, the Plaintiff concedes he did not see anyone on the 15th tee box at any point prior to being struck. As such, it is undisputed that neither party saw the other prior to the incident.

However, a stark conflict exists as to the Plaintiff’s exact location at the time he was struck. The Plaintiff claims he was at a distance of 80 yards from the 15th tee box, and at an angle of approximately 20 to 25 degrees from the center of the 15th fairway. However, nonparty witness, Luke, who played in the Plaintiff’s own group, placed the Plaintiff under the line of trees separating the two holes closer to the 8th fairway at a distance of approximately 150 yards and an angle between 45 to 90 degrees. Mark similarly placed the Plaintiff in a shaded area under the dense line of trees closer to the 8th hole.