In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (De Maro, J.), dated May 7, 2007, as granted the defendant's motion for summary judgment dismissing the complaint.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
FRED T. SANTUCCI, J.P., DANIEL D. ANGIOLILLO, RANDALL T. ENG and CHERYL E. CHAMBERS, JJ.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff Azad Anand (hereinafter the plaintiff) was seriously injured when he was struck in the eye by a golf ball hit by the defendant, Anoop Kapoor. The plaintiff and the defendant are both physicians, and prior to the accident they had been friends for many years and often golfed together. On the morning of October 19, 2002, the plaintiff and the defendant went to the Dix Hills Park Golf Course to play golf with a friend, Balram Verma. During play at the first hole, after each member of the threesome had hit two shots, they separated and walked toward their respective golf balls. At his deposition, the plaintiff testified that as soon as he located his ball on the fairway and turned around to assess where the other members of his group had gone, he was struck by the defendant's misdirected ball. The plaintiff estimated that he was approximately 15 to 20 feet in front of the defendant when the errant ball was hit. He admitted that it was customary for members of the same golfing party to stand behind the person hitting the ball.
Although Verma similarly testified at his deposition that the plaintiff's ball was about 20 feet forward of the defendant's ball at the time of the accident, he additionally indicated that the plaintiff was at an angle approximately 50 degrees away from the hole in the green where the defendant was directing his shot. In contrast, at his deposition, the defendant testified that the plaintiff was standing at a considerably greater distance in front of him when the shot was hit, and was at an angle approximately 60 to 80 degrees away from his intended line of flight. While the defendant did not see anyone standing between his ball and the hole when he approached to make his shot, he admitted that he did not actually know where either the plaintiff or Verma was prior to hitting the ball. While the defendant further maintained that he shouted out a warning to the plaintiff when he realized that the ball was headed in his direction, neither the plaintiff nor Verma heard any warning.
After depositions were completed, the defendant moved for summary judgment dismissing the complaint. In support of his motion, the defendant argued that the plaintiff had assumed the risk of being hit by a misdirected golf ball by voluntarily participating in the game of golf. The defendant also argued that, even assuming that a golfer owes a duty to another person to give warning by yelling "fore" before hitting the ball, such a duty only exists where the other person is within the intended line of flight of the golf ball. The defendant maintained that, under the circumstances of this case, he had no duty to yell "fore" because his deposition testimony, Verma's deposition testimony, and a photograph recreating the respective positions of the three golfers prepared by the plaintiffs' counsel, all demonstrated that the plaintiff was standing at an angle so far from the intended line of flight that he was not within the foreseeable ambit of danger. In opposition to the motion, the plaintiff relied, inter alia, upon an affidavit of a golf professional who opined that the defendant violated the "universally recognized" rules and procedures of the game by making a shot without first ascertaining that the other members of his group were not in a position to be struck by an errant ball, and by failing to give warning before striking the ball. The Supreme Court, among other things, granted the defendant's motion for summary judgment, concluding that while this was a terrible accident, being struck by an errant golf ball was an inherent risk of the game of golf. The court further concluded that no one was in the intended line of flight when the defendant struck the ball. We affirm.
We acknowledge that there is authority which holds that "[a] golfer has a duty to give a timely warning to other persons within the foreseeable ambit of danger" (Jenks v McGranghan, 30 NY2d 475, 479; see Richardson v Muscato, 176 AD2d 1227; McDonald v Huntington Crescent Club, 152 AD2d 543; Noe v Park Country Club of Buffalo, 115 AD2d 230; Jackson v Livingston Country Club, 55 AD2d 1045). Our dissenting colleague concludes that the defendant failed to make a prima facie showing that the plaintiff was not in the foreseeable ambit of danger because both golfers were on the same fairway. However, in our view the photograph depicting the positions of the three golfers prepared by the plaintiffs' counsel, as well as the deposition testimony of the defendant and Verma, are 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. As the Court of Appeals explained in Jenks, while there is no fixed rule regarding the distance and angle which are considered within the ambit of foreseeable danger, "if the distance and angle are great enough they are not within the danger zone as defined by previous cases" (Jenks, 30 NY2d at 480). In Jenks, the Court ultimately concluded that the injured plaintiff, who was standing on another tee about 25 yards away from the intended line of flight, was not within the zone of danger. The Jenks Court also cited a Georgia case where the court held that there was no negligence in failing to give advance warning notwithstanding that the plaintiff was only 17 degrees away from the intended line of flight (id. at 479, citing Rose v Morris, 97 Ga App 764). Here, the testimony of the defendant and Verma establish that the plaintiff was at least 50 degrees away from the intended line of flight, and their testimony is corroborated by the photograph prepared by the plaintiffs' counsel. Accordingly, under the Jenks line of authority, the defendant owed no duty to the plaintiff to give warning of his intent to hit the ball, and cannot be held liable for his misdirected shot on this basis.
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 years since the Court of Appeals decided Jenks in 1972. Modern developments in the doctrine of primary assumption of the risk set limits on the duty of care owed to participants in sporting and recreational activities by requiring that the existence of a duty be evaluated against a consideration of the risks the plaintiff assumed when he or she elected to participate in the event, and "how those assumed risks qualified defendants' duty to him [or her]" (Turcotte v Fell, 68 NY2d 432, 438; see Morgan v State of New York, 90 NY2d 471, 485). By voluntarily participating in a sporting or recreational activity, the plaintiff is deemed to have consented, in advance, " to relieve the defendant of an obligation of conduct toward him [or her], and to take his [or her] chances of injury from a known risk arising from what the defendant is to do or leave undone . . . The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he [or she] cannot be charged with negligence'" (Turcotte, 68 NY2d at 438, quoting Prosser and Keeton, Torts § 68, at 480-481 [5th ed]). The risks which participants in sporting or recreational activities are deemed to have consented to are those "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 at 484). Risks which fall outside the scope of the doctrine are those of reckless or intentional conduct, or concealed or unreasonably increased risks (see Morgan v State of New York, 90 NY2d at 485; Benitez v New York City Bd. of Educ., 73 NY2d 650, 658; Turcotte, 68 NY2d at 439).
The Court of Appeals has not, in recent years, considered the doctrine of primary assumption of the risk as it applies to the game of golf. However, the Court observed in Rinaldo v McGovern (78 NY2d 729, 733) that "[a]lthough the object of the game of golf is to drive the ball as cleanly and directly as possible toward its ultimate goal (the hole), the possibility that the ball will fly off in another direction is a risk inherent in the game." Indeed, the risk of being hit by an errant golf ball is little different from the risk of being hit by a misdirected ball at a baseball, basketball, soccer, or tennis game. The risk of being hit by a misdirected ball is equally inherent in each sport. Thus, application of the doctrine of primary assumption of risk provides an additional basis for affirmance because it compels us to conclude that the plaintiff assumed the risk of being struck by a poorly-executed shot.
Moreover, we cannot agree with our dissenting colleague that the defendant's failure to follow a rule of golfing etiquette which requires a golfer to yell "fore" before hitting the ball constituted an unreasonably increased risk which the plaintiff did not assume by playing golf. As previously discussed, the defendant did not violate this golfing tradition as a matter of law because his fellow golfers were so far from the intended line of flight of his ball as to be outside the foreseeable zone of danger. In any event, even assuming that the defendant was negligent in failing to ascertain precisely where the other members of his party were before hitting the ball, or that they were close enough to the intended line of flight of his ball to require him to call out a warning, such carelessness 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 (see Morgan v State of New York, 90 NY2d at 485).
We further disagree with our dissenting colleague's conclusion that the Court of Appeals' rationale in Turcotte (68 NY2d 432) is inapplicable because a golfer's failure to shout "fore" before hitting the ball provides no competitive advantage. In Turcotte, a professional jockey who fell from his mount during a race and was tragically rendered a paraplegic commenced an action against several parties, including a fellow jockey who had allegedly crossed into the plaintiff's lane of travel in violation of a regulation prohibiting foul riding. The Court of Appeals noted that the foul riding rule was a safety measure which established a spectrum of conduct and penalties, depending on whether the violation was careless or willful, and whether the contact was the result of mutual fault. The Court then observed that "[a]s the rule recognizes, bumping and jostling are normal incidents of the sport," rather than "flagrant infractions unrelated to the normal method of playing the game and done without any competitive purpose" (id. at 441). Emphasizing that the essence of the plaintiff's claim against the defendant jockey was that he had carelessly failed to control his mount as the horses raced for the lead, the Court concluded that "[w]hile a participant's consent' to join in a sporting activity is not a waiver of all rules infractions, nonetheless a professional clearly understands the usual incidents of competition resulting from carelessness, particularly those which result from the customarily accepted method of playing the sport, and accepts them. They are within the known, apparent, and foreseeable dangers of the sport and not actionable" (id.). Clearly, there are factual distinctions between Turcotte and the case at bar since bumping and jostling are usual incidents of competition in horse racing, while the practice of shouting out a warning to individuals who are in the line of flight does not serve a competitive purpose. However, we do not read the Court of Appeals' rationale so narrowly as to restrict the applicability of the doctrine of primary assumption of the risk to the negligent violation of rules which are intended to give ...