N.Y. court: Errant shots an expected risk
Wednesday, December 22, 2010
ALBANY, N.Y. – Slices, hooks and other errant shots are a common hazard on the links and a golfer can’t expect to get a warning shout of “Fore!” every time a ball comes his way, New York’s top court ruled Tuesday in dismissing a personal-injury lawsuit.
Dr. Anoop Kapoor and Dr. Azad Anand were playing on a nine-hole Long Island course in October 2002 when Anand was hit in the head while looking for his ball on a fairway, blinding him in one eye. The seven judges on the state Court of Appeals, siding with lower courts, said Kapoor’s failure to yell in advance of his errant shot from the rough did not amount to intentional or reckless conduct.
The court cited a judge’s finding that Anand was not in the foreseeable zone of danger and, as a golfer, consented to the inherent risks of the sport.
“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 judges wrote.
They also broadly outlined the test under New York case law for determining when another golfer crosses the line and could be sued.
“A person who chooses to participate in a sport or recreational activity consents to certain risks” that are inherent to that activity, the judges wrote. “However, a plaintiff ‘will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks.’”
Anand, a neuroradiologist, was unable to work after he was hit by Kapoor’s sliced shot, said Steven Cohn, Anand’s attorney. Cohn argued that the case should not be dismissed without a trial, that the foreseeable zone of danger differs with the skill of the golfer and there were disputed questions of fact in this case.
Calls to Cohn and Kapoor’s attorney, William Hartlein, were not immediately returned Tuesday.
The men, frequent golf partners, were playing at the Dix Hills Park Golf Course with another friend, Balram Verma, in 2002, according to court papers. After hitting a second shot on the first hole, each set off to find his ball.
Anand testified that he was hit as soon as he found his ball and turned around, about 15 to 20 feet away from Kapoor.
Verma testified that Anand was about 20 feet away from Kapoor and about 50 degrees away from the intended line of flight for Kapoor’s shot.
Kapoor testified that Anand was farther away and at an angle of 60 to 80 degrees. He said he shouted the warning when he realized the ball was headed toward Anand. Neither friend said he heard it.
According to the British Golf Museum, the term “fore” may have come from forecaddie, meaning someone employed to go ahead of players to see where their balls land. In his 1881 “The Golfer’s Handbook,” Robert Forgan wrote that a golfer shouts the word “to give the alarm to anyone in his way.”