Golfer Had No Legal Duty to Yell 'Fore' Before Shot, Split Panel Finds

Jeff Storey

New York Law Journal

April 28, 2009

Dale Wilson, Getty Images

A Long Island golfer did not have a legal duty to yell "fore" before taking a shot that blinded a friend and fellow-physician in one eye, a divided appeals court has ruled.

The New York state Appellate Division, Second Department, held in Anand v. Kapoor, 2007-05606, that Anoop Kapoor could not be held liable to Azad Anand for ignoring one of the "universally recognized" customs of golf before he shanked a ball into Dr. Anand's left eye.

The decision represents a refinement, if not an overturning, of a line of precedents fashioned by the courts to deal with accidents stemming from a game that was played by 29.5 million Americans in 2007, according to the National Golf Foundation.

Such accidents are not unusual. Even with the most intense concentration on the part of players, a 45.93-gram golf ball can fly off in unpredictable directions, striking people and property.

The 3-1 Second Department majority affirmed in an unsigned opinion a lower court's dismissal of Anand's personal injury suit, holding that, given the circumstances of the accident, Dr. Kapoor could not have reasonably anticipated that Anand was in any danger from his shot.

But even if Kapoor had been negligent, it held that the suit had to be rejected because the risk of being struck by a misdirected shot is an "inherent" part of golf.

"While we are sympathetic to the fact that plaintiff was seriously injured as a result of this accident," the panel observed, "to conclude that the defendant can be held 'liable' in tort for a poorly-executed golf shot because he may have negligently failed to shout 'fore' is inimical to the rationale underlying the doctrine of primary assumption of the risk, and at odds with the public policy goal for its adoption" -- to encourage "free and vigorous participation" in sports and recreational activities."

Justice Cheryl E. Chambers (See Profile) argued in a signed dissent that there was a question of fact as to whether Kapoor's violation of golfing procedures unreasonably increased the risks to other competitors.

On the morning of Oct. 19, 2002, Anand and Kapoor and Balram Verma went to the Dix Hills Park Country Club in Nassau County. The three friends had known each other for 25 years and often played golf together, although Kapoor said in a deposition that he was not an "expert" and only "played" at the game.

After each had hit his first two shots toward the first hole of the nine-hole course -- a 280-foot par four -- they separated and went to look for their balls.

According to the decision, Anand and Verma testified in their depositions that Anand was on the fairway, approximately 15 to 20 feet in front of Kapoor, whose ball was in the rough to the left. Verma said that Anand was at an angle of some 50 degrees from the hole in the green where Kapoor was directing his shot. Kapoor recalled that Anand was a considerably greater distance in front of him and at an angle of 60 to 80 degrees from the intended line of flight to the hole.

Kapoor testified that he did not see anyone standing between his ball and the hole when he approached to make his third shot, but he admitted that he did not actually know where either of his friends were standing prior to hitting the ball. He claimed he shouted out a warning when he realized that the ball was headed in Anand's direction. Neither of his companions heard a warning.

As Anand turned to determine where the other members of the threesome were, Kapoor loosed a shot that went sharply to the right at a low trajectory, striking Anand in the left eye.

Anand sued, but in May 2007, New York State Supreme Court Justice Joseph DeMaro (See Profile) granted summary judgment to Kapoor, dismissing the lawsuit on grounds that the defendant was not negligent and that Anand had, in any case, assumed the risk of injury through his voluntary participation in the sport.

The Second Department affirmed.

Its decision acknowledged a line of decisions, starting with Jenks v. McGranghan, 30 NY2d 475 (1972), which held that a golfer has a duty to give a timely warning before shooting to other persons "within the ambit of dangers."

Here, testimony, corroborated by a photographic recreation of the accident by Anand's counsel, convinced the majority that Anand was so far from Kapoor's intended "line of flight" that he could not have reasonably anticipated his golfing partner might be struck by a misdirected shot.

But the majority went further.

"More fundamentally we note that a rule recognizing that liability can be predicated upon a golfer's negligent failure to give warning before hitting the ball is inconsistent with the doctrine of primary assumption of the risk as it has developed in the Court of Appeals since 1972," the majority said.

Under that doctrine, voluntary participants in sporting and recreational activities are deemed to have consented to "commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation." Morgan v. State of New York, 90 NY2d 471 (1997).

Only reckless or intentional conduct, or concealed or unreasonably increased risks, can give rise to liability, the panel noted.

According to Anand's brief, a golf professional testified for Anand that pursuant to "universally recognized" rules and procedures, the golfer who reaches his ball first and is the greatest distance from the green should take the first shot after first ascertaining the positions of his fellow competitors. If other people are in a position where an "errant" shot could strike them, the golfer warns them he is about to shot by shouting "fore."

However, the Second Department panel found that the "carelessness" of failing to follow these procedures "does not rise to the level of creating a dangerous condition over and above the usual dangers inherent in participating in the sport of golf."

Justices Fred T. Santucci (See Profile), Daniel D. Angiolillo (See Profile) and Randall T. Eng (See Profile) joined the decision.

Kapoor was represented by William D. Hartlein of Ray, Perrone & Hartlein in Mineola, N.Y.

Anand was represented by Susan E. Dantzig of the law firm of Steven Cohn, P.C. in Carle Place, N.Y.