Written by attorney Jeffrey Harlan Penneys

Assumption of The Risk in Golfing Accident Case

The case of Getz v. Freed, 105 A.2d 102 (Pa. 1954) is on point. In Getz, the Supreme Court of Pennsylvania upheld an award against a golfer who hit a third ball from the tee without warning the other players in his party, who were on the fairway helping to search for the Defendant's first ball. As in the instant case, the Plaintiff in Getz was struck in the head and sustained serious injuries as a result of the Defendant's negligence. Id. While conceding that a person who plays golf assumes some risks of the game, the Supreme Court in Getz held that "it is the duty of every player to give timely and adequate warning-usually by the word "fore"- of a shot which he is about to make, either on the same hole or on a different hole." Id. The Getz Court also confirmed that the Plaintiff could not be deemed contributorily negligent or to have assumed the risk of injury since he did not have actual knowledge of the fact that Defendant was going to take another shot while he was in the zone of danger. The case of Brosko v. Hetherington, 16 D&C 761 (1931) is also instructive. While Brosko was a Common Pleas decision, the outcome of a case involving an injury caused by a golf ball is heavily dependant upon the exact circumstances under which such injury occurs. The analysis in Brosko is consistent with the Supreme Court's decision in Getz, and is applicable to the circumstances under which Plaintiff, Stuart Zeidman, was injured. In Brosko, the minor Plaintiff-caddie was struck in the eye by a golfer who was part of his golfing party and who was found to have been negligent in the manner in which he hit the ball, and for failing to give a warning before doing so. In upholding the jury's decision, the Court noted that: Golf, from its very nature, is a game requiring some skill. It must be remembered that the driver or brassie is a club with a long handle and a solid wooden head reinforced and weighted with lead; the golf ball is a small ball of tightly wound rubber, covered with guttapercha, and is so constructed that it attains a terrific velocity upon being struck. It is readily seen that a player, when striking the ball, sets in motion certain forces which are capable of causing great damage if improperly directed....It must be conceded that the game of golf is no different from any other game or occupation in which man puts in motion a force likely to cause injury, and that if he intentionally puts such a force in motion, he must use ordinary care to put it properly in motion and in a direction in which it will cause no injury to another. A clear analogy can be drawn between such a case and that of a man who attempts to operate a motor vehicle on the public highway without having sufficient knowledge of or skill in the manner of operation and who fails to properly direct its course. While it is true that the sporting element in the game is to some extent its uncertainty, yet this is a factor among the players themselves and does not comprehend that a player can be so poor, so unskilled and so careless about his manner of addressing and striking a golf ball as to be entirely unable to control or to fail to control its movement or direction and so jeopardize the life or limbs of people who are lawfully upon the golf course, as the minor plaintiff was. This case is in no degree different from that in which a man shooting a rifle at a target seeks to direct the bullet at the target merely by placing the gun to his shoulder and pulling the trigger without first being careful to sight the gun at the target. * * * As to the second question involved, in considering whether or not the defendant was negligent in failing to give warning, the defendant contends that, if the plaintiff relies upon the theory that the ball was improperly struck, there was no necessity of a warning being given. That is fallacious for the reason that had the warning been given, the minor plaintiff's attention would have been attracted to the defendant's driving and would have so enabled him to protect himself by dodging when the ball came in his direction, or moved out of danger. But the plaintiff counters by contending that not only was the defendant negligent in striking the ball improperly, but he was guilty of further negligence in failing to give a warning which would have permitted the minor plaintiff to protect himself from injury. The thought is advanced that the slicing of a golf ball is a matter of common occurrence, and the fact that the defendant sliced is, therefore, no negligence; that it is unnecessary for the player to give any warning of his intention to play, for everybody around the tee knows the assembled players are about to drive off, and that the caddies there assembled, including the minor plaintiff, knew of the custom. Such a contention is unwarranted. There is no evidence that the minor plaintiff knew this, and there is evidence that this was the first time he had ever caddied, and the injury was received as the ball was being driven from the first tee. On the contrary, if, for the sake of argument, we take the defendant's contention that slicing, such as this, is a common occurrence, it must certainly follow that the defendant must have anticipated his slice as a strong possibility, and, therefore, it became his duty to observe if anyone was in the area in which his ball would traverse if sliced and to warn anyone in that area in order that they might seek a place of safety and be prepared to protect themselves in the event the ball came in their direction. It cannot be said that it was unnecessary for the defendant to give warning of his intention to play, because everyone around the tee knew that this would be done, for the reason that the minor plaintiff was engaged as a caddy and had just watched the course of his employer's ball, marked its location, and was just turning toward the tee to watch for the next drive when the defendant's ball struck him. Had the defendant given a warning, the minor plaintiff would have been in a position to turn away from the direction of the ball or fall to the ground or protect himself insome other manner. The defendant contends that by giving warning, notice would only have been given to the minor plaintiff the information which he already knew. This is palpably incorrect for, though the minor plaintiff knew the other players would drive, he certainly could not know at what exact second the drive would be made. Under the defendant's own theory, if the slicing of the ball is a common occurrence, it was his duty to give warning of his intended drive, and the failure to give a warning caused this injury to the minor plaintiff. Id. (emphasis added). Applying the reasoning of Brosko to the case at bar, it is apparent that Plaintiff's injury was preventable had Defendant exercised reasonable care before hitting his shot. Because the evidence would permit a finding that Defendant did not exercise reasonable care, Defendant is not entitled to summary judgment as a matter of law. Boynton v. Ryan, 257 F.2d 70 (3d Cir 1958), cited by Defendant in support of his Motion for Summary Judgment, is also not controlling. In Boynton, the Court entered a directed verdict against the Plaintiff who was injured after he expressly acknowledged the presence of a threesome which was following his group on the course - one of whom was the Defendant - and "waived them through" to golf on the seventh hole while he ducked into foliage. In fact, the Boynton decision expressly noted the obvious distinction between cases such as Getz and Brosko, supra, in which a Defendant drives a shot in the direction of an individual "situated in a possible path of an impending shot of which he was unaware," and those cases in which the Plaintiff was either aware that Defendant is driving a ball or in which the Defendant proceeds to take a shot down an apparently clear fairway but slices a ball in the direction of an individual not directly in the zone of danger. Id. As described above, review of the circumstances giving rise to Plaintiff's claim in the case at bar confirms that it is more analogous to the Getz case than it is to Boynton. Finally, Defendant cites the case of Taylor v. Churchill Valley Country Club, 228 A.2d 768 (Pa. 1967) in support of his Motion for Summary Judgment. However, the Taylor case involved a claim by a caddie against the country club where he caddied for failing to erect netting or other protective equipment after he knowingly and intentionally positioned himself in an area ahead of the party which he was serving, directly "in the line of fire" of golf balls be hit by the golfers in his party. Id. Accordingly, the facts at issue in Taylor did not require an evaluation as to whether another golfer was negligent in driving a ball in the direction of another golfer but whether the entity which controlled the course was negligent in the safety apparatus employed. Moreover, the Plaintiff in Taylor expressly testified that he "knew and accepted" the risk the risk of injury in what he was doing and, therefore could not recover. Id. Taylor adds nothing to the analysis as to whether Defendant can be deemed negligent or whether he is entitled to judgment as a matter of law. Here, Plaintiff did not intentionally or carelessly walk ahead of or stand within the orbit of the shot of a person playing behind him, and defendant, Troy Fisher, did not give an adequate and timely warning of a shot he was about to make and which he has reasonable grounds to believe may strike another player. Defendant has testified that he had no reasonable grounds to believe the Plaintiff would be hit, but why would he ask Plaintiff to "scout" the hole to make sure the group in front was out of harm's way? Is defendant saying that the group at the green was in more danger than the Plaintiff, who was MUCH closer to the tee box? If Defendant honestly thought that the group in front was in danger, how can he say that Plaintiff was not? In Wikert v. Kleppick, 1990 Pa. Dist. & Cnty. Dec. LEXIS 157; 8 Pa. D. & C. 4th 193 (1990), the Court stated as follows: A participant does not assume the risk of injury from fellow players acting in an unexpected or unsportsmanlike way with a reckless lack of concern for others participating. Id. at 197. Here, there was no way for Plaintiff to expect that Defendant would hit his ball when Plaintiff was in clear view, on his way back to rejoin the group, after the Defendant himself asked Plaintiff to "scout" the hole in question.

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