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Nearly every duffer does it with regularity, including President Clinton: If the first tee shot goes awry, you drop another ball and take a “mulligan” � a free shot allowed through the courtesy of your companions. But if the mulligan misses, injuring another golfer, you could end up in a stew. That’s what happened to John Ferolito on Oct. 27, 1994, at the 16th hole of the East Orange Golf Club in Short Hills, N.J. Ferolito was the last of his foursome to tee off; the other three players were in their carts, sitting slightly to his left, 15 to 30 feet away. Ferolito’s first shot sliced right. Without saying anything to the other players, he teed up again and took a second shot, which hooked sharply to the left. The mulligan hit another member of the foursome, Jeffrey Schick, between the eyes, breaking bones in his face and head. Schick had turned to face Ferolito just as the ball was struck. The question in Schick v. Ferolito, A-108-99, argued at the state supreme court earlier this month, is how to gauge liability for golf accidents like this one. The suit had been bounced by the trial court, but the Appellate Division reinstated it, making an exception to the defendant-friendly standard set out in Crawn v. Campo, 136 N.J. 494 (1994). Ferolito’s lawyer, James DeMarzo, argued that Essex County Superior Court Judge F. Michael Caruso got it right when he held that Ferolito’s actions did not amount to the “willful, wanton or intentional acts” that Crawn requires to sustain an action. “The plaintiff must prove that the defendant acted with reckless disregard,” said DeMarzo, a partner at Morristown, N.J.’s McCord, Helfrich & DeMarzo. “Someone strikes a ball that deviates from the intended path. That’s a risk that’s inherent in any sporting activity,” he said, comparing the risk to that which baseball fans assume sitting in a stadium. “The Appellate Division agreed [that Crawn applied],” DeMarzo said, “but carved out an exception for the particular facts of this case because this was an unannounced mulligan.” The Appellate Division said that New Jersey courts have long held golfers to the ordinary-negligence standard, namely that a golfer hitting the ball has a duty to use reasonable care before executing a swing, to first observe whether there is anyone in the line of fire and, if so, to provide a warning. Justice Peter Verniero asked what legal duty a golfer had to warn someone of an errant shot. DeMarzo answered that there is a duty if the person is in the line of flight, whereas Schick was 45 degrees off to the left, on the cart path, and well outside the intended path of the ball. “Golf is a different game,” he said, pointing to potentially deleterious effects if the appellate ruling stands. “If everyone has to be so careful that if a ball goes astray and hits somebody, they might not play the game.” Justice Gary Stein said it might make common sense for an amateur to announce, at least to the other members of the party, that a mulligan is about to be taken. DeMarzo disagreed. “Even the best golfer hits a shank that goes into the crowd,” he said. Schick’s lawyer, Verona, N.J., sole practitioner Richard Chisholm, argued that the restrictive standard of Crawn was meant to apply only to physical contact in rough-and-tumble sports and not to golf. Chisholm said the suit should be allowed to proceed because Ferolito repeatedly said during depositions that he believed Schick was, in fact, within the line of fire. “The defendant conceded the plaintiff was within the line of fire. This is an unusual case that should be decided by a jury,” he said. There is some evidence, said Chisholm, that Ferolito, after slicing right, adjusted his stance somewhat to the left to ensure that if his second shot sliced it would have a better chance of landing in the fairway. “That’s a reasonable inference the jury should have been allowed to hear,” he said.

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