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