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MILTON J. NEUMANN v. IRWIN I. SHLANSKY ET AL. (10/24/68)

COUNTY COURT OF NEW YORK, WESTCHESTER COUNTY 1968.NY.43264 <http://www.versuslaw.com>; 294 N.Y.S.2d 628; 58 Misc. 2d 128 October 24, 1968 MILTON J. NEUMANN, PLAINTIFF,v.IRWIN I. SHLANSKY ET AL., DEFENDANTS Julius Diamond for defendant. Monroe Yale Mann for plaintiff. John C. Marbach, J. Author: Marbach


John C. Marbach, J.

Author: Marbach

 Defendant moves to set aside the verdict and for a new trial on the ground that the verdict was contrary to the law of the case since the charge given by me, as Trial Judge, was erroneous as a matter of law.

The question presented here is, as far as can be determined, a case of first impression not only in this State but also in the Nation. The issue is the standard of care which must be exercised by an 11-year-old infant defendant when he is playing golf.

The facts are relatively simple and may be summarized as follows: Defendant, an 11-year-old boy was playing in a foursome at the Harrison Country Club with his mother and two other adults. The infant defendant was on the tee of a par-three hole of about 170 yards. Plaintiff had just left the green on the par-three hole and was crossing a foot bridge, which his caddy was about to cross, about 150 to 160 yards from the tee, in plain view of the tee, when he was hit in the knee by the ball driven from the tee by the infant defendant. The infant testified that he saw the plaintiff before he hit. There was testimony that indicated that infant had yelled "fore", the traditional warning given on the golf course when a golfer sees that someone may be hit by a golf ball. Plaintiff testified he did not hear the warning. There was further testimony which indicated that the infant was a boy who had been playing golf two to three times a week during the season for the past two years. It was apparent on the trial, from the shot hit by the infant, that he had at least some proficiency in hitting the golf ball.

The court charged the jury that the infant in this case was to be held to the standard of care of an adult and not to the usual standard of care of a child. The jury returned with a verdict for the plaintiff.

At the outset it should be established that a golfer owes a duty to use reasonable care to avoid injuring other players on the golf course. (Trauman v. City of New York, 208 Misc. 252; Johnston v. Blanchard, 276 App. Div. 839 [1st Dept., 1949]; Toohey v. Webster, 97 N. J. L. 545; Walsh v. Machlin, 128 Conn. 412.) Furthermore, a golf ball is a dangerous missile which can cause serious injury if it hits someone while in flight. (Povanda v. Powers, 152 Misc. 75 [Sup. Ct., N. Y. County, 1934].) See, also, Ratcliffe v. Whitehead (3 West. Week. Rep. 447 [Manitoba, 1933]) where the court stated that, in some ways, hitting a golf ball can be more dangerous than firing a gun or throwing a stone since one is likely to have more control over the direction of a gunshot or a thrown stone than a golf ball. The ordinary rules of negligence apply to games and in the playing of games as in other transactions in life a person must exercise reasonable care. (Cleghorn v. Oldham, 43 Times L.R. 465 [Eng. 1927].) It is for this court to determine based upon all the factors involved whether this infant defendant while he was on the golf course is to be held to the standard of care of the reasonably prudent infant or the reasonably prudent man.

This court holds that this infant should be held to the standard of care of the reasonable man. This raises several questions and the court will proceed to discuss the relevant considerations.

I.

The mere fact that there is lack of precedent on this question is not controlling since the real issue is not whether there is precedent for this type of a situation but whether the defendant should be held liable for the wrong inflicted on the plaintiff. Courts sometimes are called upon to sustain a recovery upon legal principles clearly applicable to a new set of facts although there is no direct precedent for it. The law is not static. It must adapt and change as new situations dictate. If a court were to refuse to consider novel questions it would be shirking its responsibilities to itself, to the Bar and above all to the administration of justice. (See, e.g., Rozell v. Rozell, 281 N. Y. 106.)

II.

The ancient and honorable game of golf has been with us since around 1100. It is only within the last few decades that it has evolved into a game which is either played or played at by some eight million people throughout the world. The pastime that was at one time "indulged in by only kings and the nobility" (Gleason v. Hillcrest Golf Course, 148 Misc. 246, 248) and was described by Andrew Carnegie as an "indispensable adjunct of high civilization" ("The Complete Golfer", edited by Herbert Warren Wind, Simon and Schuster, New York, 1954, at xvi of preface), has now become a game which is played by people of all classes from all walks of life. Hand in hand with the increasing popularity of the sport has been a rise in the number and type of accidents occurring on the golf course. One of the most common accidents results when one of the participants, or a person in the gallery, is struck by an errant golf ball projected from the club of a competitor who never dreamed he or she would ever hit anyone with that shot. All golfers assume the ordinary risks incident to the game when they venture onto the course. (Johnston v. Blanchard, 276 App. Div. 839 [1st Dept., 1949], affd. 301 N. Y. 599; Rocchio v. Frers, 248 App. Div. 786; Benjamin v. Nernberg, 102 Pa. Super. Ct. 471; Stober v. Embry, 243 Ky. 117.) This is inherent in a game which has few players able to accurately and consistently control the flight of a golf ball. Indeed, as Judge Lauer indicates in Povanda v. Powers (supra, p. 78), it is this very uncertainty which makes golf intriguing and which undoubtedly has contributed greatly to its phenomenal growth. A competitor or for that matter a member of the gallery does not, however, assume the risk of someone's negligent conduct while on the golf course. While the rule is sometimes loosely stated that a person who hits a golf ball must give timely and adequate warning to any persons in the general direction of his drive (Povanda v. Powers, supra ; Toohey v. Webster, 97 N. J. L. 545, supra), that rule applies only to shots initially played under nonnegligent circumstances. The shouting of "fore" does not exculpate careless or reckless conduct. (Page v. Unterreiner, 130 S. W. 2d 970 [Mo. App.].) All persons on the golf course have a right to rely on the players' adherence to a standard of care, based upon the avoidance of reasonably foreseeable risks. All courts would hold every adult to the standard of the reasonably prudent man under all the circumstances. Our inquiry here is directed solely to the question of whether it is reasonable to hold this defendant infant to the same standard of care.

III.

An infant may be held civilly liable for damages occasioned by his tortious acts. (See, e.g., Taksen v. Kramer, 239 App. Div. 756; Rozell v. Rozell, 281 N. Y. 106.) The general rule is that, if the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable person of like age, intelligence and experience under the like circumstances. (Restatement, Torts 2d, ยง 283 A.) The theory behind the general rule is that there is a general interest in the welfare and protection of infants and if a question of the infant's liability arises the courts can draw upon a wealth of community experience from which it is possible to determine what standard the infant should be held to in a particular situation. It has been recognized that the standards of conduct which apply to infants when his own liability is in question may be different from that to which he is to be held when he seeks to recover from an admittedly negligent defendant. Stated another way he may be held to a higher standard when he actively exposes others to hazards than when he is protecting himself against hazards. (Dellwo v. Pearson, 259 Minn. 452; see, also, Shulman, The Standard of Care Required of Children, 37 Yale L. ...


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