The New York Court of Appeals has ruled in favor of a golfer who failed to yell “Fore” and blinding another golfer in one eye. Dr. Anoop Kapoor and Dr. Azad Anand were playing on a nine-hole Long Island course in October 2002 when Kapoor took the swing without the warning. Anand was hit in the head and sued. However, the court found that he had assumed the risk by going on the golf course — even with a “shanked shot.”
The court ruled that the “fore-less” swing was not intentional or reckless conduct. The decision is a classic application of tort doctrine, including the foreseeable zone of danger test and consent. The court noted:
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” (Morgan v State, 90 NY2d 471, 484 [1997]). A court evaluating the duty of care owed to a plaintiff by a coparticipant in sport must therefore consider the risks that the plaintiff assumed and “how those assumed risks qualified defendant’s duty to him” (Turcotte v Fell, 68 NY2d 432, 438 [1986]). However, a plaintiff “will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks” (Morgan, 90 NY2d at 485 [citations omitted]).
Here, Kapoor’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 Anand consented. Rather, the manner in which Anand 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 Court takes apparent judicial notice of such matters relating to a “shanked shot.” For those of us who could not tell the difference between a wood and an iron, a shanked shot “is a mis-hit that is so bad the golfer makes contact with the ball with a part of the club other than the clubface.”
There is an interesting comparison to the ruling in Hackbart v. The Cincinnati Bengals involving a game between the Denver Broncos and the Cincinnati Bengals in Denver in 1973. The Broncos’ defensive back, Dale Hackbart, was injured by a blow by Bengals’ offensive back, Charles “Booby” Clark. The court ruled that the hit fell outside of the NFL rules and thus Hackbart did not consent to such a battery. The reason was that the hit violated the rules of the game. The court in this case does not consider whether consent was based on the customs or rules of golf as in Hackbart.
“Fore” has been part of golf since the 1800s and believed by many to have originally been a reference to the term “fore-caddy”, a caddy who would wait down range from the golfer. Golfers would warn the fore-caddy of errant balls with “Fore,” which is now the custom for all such balls.
In this case, the Court effectively guaranteed a legal Mulligan for thoughtless golfers — even when the victim is blinded. Even professional golfers have received such Mulligans when intentionally striking down endangered birds on the course.
Here is the ruling: Anand.decision
Jonathan Turley
Source: How Appealing
Sounds like neither is a very good golfer – one in the rough looking for his ball (a shank shot, too?) and the other hitting a shank shot in the same general area. Kind of like my experience. : ) We always yelled “fore” when our ball went toward other players. Possible targets always ducked behind a tree or a golf cart. If it was off the tee, the guy who was hit shouldn’t have been out there. Actually, it’s a good idea not to get out in front of other players, especially those who aren’t very good. But we don’t know if they were playing together or not. Another stinging and embarrassing situation is if you get hit by your own ball ricocheting off a tree or rock and coming back at ya. Do you yell “fore” then? I didn’t, I was too busy ducking, to no avail. I don’t do golf anymore.
Everyone I’ve ever golfed with or seen golfing (including my time as a caddy during high school) yells “Fore” when they have a shot that may come near other players. I don’t really like this ruling, because if the guy yelled “fore,” the other golfer may have sought cover behind a tree or something– I know when I hear fore I do.
“I don’t think the really heavy stuff is going to come down for a while.” – Carl Spackler
Tony C
I have to disagree with your comments about “Fore!”. I use it and I heard from time to time from nearly anyone hitting an errant shot toward others over the last 25 years. I have alo seen PGA Tour players (including Tiger and Phil) yelling “Fore right!” or such when they see their ball headed toward the gallery.
In this case, it sounds like the two men were playing together. From the article: “…Kapoor took the swing without the warning.” For clarity’s sake, yelling Fore is not a requirement of every swing, just the one’s headed toward people. It’s pretty hard to yell “Fore!” if your shank hits a guy sharing the tee box with you.
“For those of us who could not tell the difference between a wood and an iron…”
I aint no golfer ner high-falutin’ lawyar but I would humblee advize that any man should try to desighfer the difference betwixt a wood and an iron a’fore engagin’ in any ‘fore-play’ whatsoever…
lol, rafflaw… hearty laughter, in fact… always good..
Happy that you recovered the ball. And it doesn’t surprise me a bit to hear that you were yelling “fore.” 🙂 Gotta feel sorry for the biker for his very bad luck. Talk about being in the wrong place… What are the odds? I’m guessing that s/he is still telling that story.
anon nurse,
the good news for me was that I didn’t lose the golf ball! By the way, I did yell Fore several times before impact!!
I don’t think “fore” is the custom; I’ve been a golfer for decades (since my mid-20’s) and almost never hear it. Pros don’t do it, either.
rafflaw,
🙂
Your story gives new meaning to the phrase “a stroke of bad luck.” 🙂 That poor biker, but “no fault” on your part, of course… Clearly not the best day for either of you.
I agree with AY. This sounds like a very reasonable decision. It also reminds me of the time I sliced a golf ball off the tee at a Cook County Forest Preserve course in Morton Grove, Illinois and the ball bounced off the neighboring road and struck a glancing blow to the head of a person on a bike. Luckily, the bike rider was uninjured, but he did fall off the bike and wasn’t too happy with me! I think I took an 8 on that hole.
Sounds reasonable to me….