THE LEGAL HAZARDS OF GOLF

©The Rough Notes Company, Inc. Editor’s Note:

We came across this gem of an article in our Rough Notes Magazine Archives. Specifically,from the May ’39 issue. 70 years later, it still provides insight to considerations that should be pointed out toyour clients who are golfers. We have largely preserved the original style and content, so keep this in mindas you enjoy (and hopefully use) the article’s insights. ______________________________________________________________________________ The game of golf has been played for more than five hundred years. Originating with the Dutch, andprobably by them introduced into Scotland, by the middle of the fifteenth century its popularity had becomeso great as to interfere with more important pursuits, making it necessary for the Scottish parliament toprohibit its practice by imposing certain penalties upon those who persisted in the so-called “unprofitablesport.” But, despite the objections of those who considered the game unworthy of the time and expenseinvolved, it gained such favor with the monarchs themselves that it became known as the game of royalty,and has since become quite wide-spread.For a custom to exist over a long period of years, whether it take the form of a social affair, an industrialoperation or a game of sport, it must of necessity undergo many changes, and golf has proven noexception. It was originally played with a ball consisting of feathers covered with leather, and the clubs, fewin number, were crude wooden affairs. Today the clubs are made of iron, steel and wood, and may becomedestructive objects if not used with care; the balls no longer are soft and harmless, but are manufactured of material that enable them, when struck, to assume the nature of dangerous missiles.During the course of its evolution the game has acquired certain well-established rules and customs, thepurpose of which are to enable the players to derive greater pleasure, and to ensure their better safety,from its participation. One has a right to rely upon the fact that others will comply with the ethics of thegame and observe the rules and customs that have been adopted. The dictates of good sportsmanshipand, in fact, the law itself, impose upon those engaged in the prosecution of any activity, whether it consistsor work or play, an obligation to use ordinary care to perform it in such a manner as not to endanger other persons, and it has been said that the failure to observe, for the protection of the interests of such other persons, that degree of care, precaution and vigilance which the circumstances justly demand, constitutesnegligence and may be made the basis for legal action to recover compensatory damages in the event of injury.A player is not always able to control either the direction or destination of a golf ball for the reason that theslightest imperfection in his stroke may cause it to travel at an angle from its intended line of flight, or a lackof proper judgment may alter its ultimate halting place. Therefore, a cardinal rule of the game is that, beforeaddressing the ball, one should, in some manner, warn those persons who are in the direction in which it isto be driven or in which it might be carried if driven inaccurately.

First Judgment for a Caddy

A New Jersey court holds the distinction of being the first to rule in favor of a caddy that was injured when aplayer, as the jury found, failed to give such warning. He had sliced his original drive from the fourth tee andthe course of his second shot was over the edge of the third green where the caddy in question had justhanded his player a driver and was walking toward a bunker on the fourth fairway. Despite the offendingplayer’s testimony that he shouted “fore” before making his second shot, all the witnesses testified theyheard no warning until the instant the caddy was struck.The court stated that, with players and caddies out in front of him and with the knowledge that his ball mightdeviate from its intended course, the player was under a duty to use reasonable care before making hisshot to observe whether there were any persons in the general direction of his drive and, if so, to see thatthey were adequately warned: furthermore, the caddy had a right to expect that the player would notendanger him by driving in his direction without giving some audible warning in time for him to protecthimself. If no such timely warning was given, or was given in such a manner that the caddy did not hear itand would not have heard it by the exercise of reasonable care on his part, the player was guilty of abreach of his duty.

“Fore” When More Than Four

In a New York case, where a caddy lost an eye as a result of being struck by a ball, the rule enunciated bythe court was the same as that in the above case. A member of a seven some dubbed his drive into therough a few feet from the tee and his second shot, made with a driver, struck a caddy who was standing infront of him. The only warning was that shouted by the player’s own caddy at the time the ball was struck.The court, in making an award of $10,000, stated that, while it is customary to play in foursomes or less, itis not necessarily negligent to play in larger groups; but the more players engaged in the game, the morelikelihood there is of injury and the greater the degree of care that must be exercised. Inasmuch as theinjured caddy was entitled to that degree of care which requires a person about to play his ball to give atimely and adequate warning to anyone in the general direction of his drive, the player in this instance,before he took his second shot, should have given some audible admonition before hitting the ball. The factthat another person cried out at the time the ball was struck did not condone his dereliction in this respect.

Take Care Of Your Caddy

In another New York case, a caddy and his player were following a threesome who had reached a tee andwere preparing to make their drives. In order that he might follow his own player’s ball when it came histime to drive from the same tee, the caddy took a position on an adjoining fairway near that being played.His attention for the moment was fixed elsewhere and he did not observe the last member of thethreesome drive. The ball swerved from its intended course; no warning was given until it was in flight; andhe was struck over the eye. A jury concluded that the player had violated his duty to use the care of areasonably prudent person who would have given timely warning to enable those likely to be injured toprotect them.

Negligence Rather Than Lack of Skill

It must not be assumed that, because a ball is struck in such a manner as to cause it to travel in anunexpected direction, one is guilty of negligence for not striking it properly. Even the best players are notalways able to control the course it may take and the law does not require the impossible. Liability ispredicated upon the doing of something that should not have been done, or the failure to do something thatcould and should have been done.For instance, in a recent Missouri case, a player on his second shot hooked his ball and stuck another player’s caddy that was twelve to fifteen feet to his left and about forty-vive yards in front of him. There wasconflicting testimony regarding a warning, although the caddy’s attention was distracted and he heard nowarning until the instant he was struck. The court pointed out that the player’s negligence did not consist of his striking the ball in such manner as to cause it to hook, but in his failure to give a timely and adequatewarning to one who was in the direction in which the ball was intended to be driven or in which it might becarried if struck inaccurately.

Negligence of Host a Factor

Although, in a New Jersey case where a person visiting a golf course was struck by an unidentified player’sball and the host was absolved of responsibility for the injury suffered by his guest, it is interesting toobserve that, under certain circumstances, he may become liable for damages resulting from his guest’sshortcomings. A member was playing in a foursome on a course in Missouri when his guest’s ball struckand injured the caddy of another player. Suit was instituted against the host based upon his allegednegligence in failing to give warning to the caddy of the danger to which he was exposed.A recovery was allowed and the appellate court, in affirming the judgment, stated that, where a member of a club knew that his guest had been shooting very poorly and that any player was apt to hook the ball whenit was struck, and where he knew that his guest was about to make a shot while a person was in a positionthat would make him liable to danger if the ball were driven inaccurately, it became the member’s duty towarn such person of the danger, and the more so when, as in this case, his youth was taken intoconsideration.

Was There A Breach of Duty?

That a friendly game may terminate in a bitter legal contest is shown by a Virginia case. A member of atwosome topped his drive from the third tee and his second shot was not much better since it landed in therough near the beginning of a dog leg, a few feet beyond his companion’s drive and slightly to his right. He

proceeded to the place where the ball was last seen and, unaware of his companion’s intention to make hissecond shot, he arose from a stooping position in the rough and was struck in the eye. There was a verdictfor $5,000 and, in seeking to have it set aside, it was contended that there was no breach of a duty to theinjured player; that the latter was guilty of contributory negligence; and that the injury was the result of anassumed risk.The court ruled, however, that a warning should have been given and a failure to do so constitutednegligence; that the question of contributory negligence was for the jury to answer, which, by their verdict,they did adversely to the appellant; and that one does not legally assume the risk of being hit by a fellowplayer’s ball.

Injury Inflicted by Club

Not all accidents, however, result from driven balls. There is on record a case where a player wasdemonstrating a stroke to her companion and on her “follow through” she allowed her club to strike anearby spectator. She was held responsible for the injury that was suffered because she admitted she didnot look when she made the stroke, and a jury, having determined that her conduct did not measure up tothat of a reasonable person in the same circumstances, the court was not at liberty to set the verdict aside.Accidents can occur without the elements of actionable negligence being present. All that a player isrequired to do is exercise that precaution which the prevailing circumstances demand, and he is notresponsible where injury results from an unanticipated occurrence if he has been reasonably prudent inascertaining that he can act with safety. There would be no liability, for instance, if a driven ball were tostrike a tree, or other object, and on its rebound injure a person standing back of the player. Ordinarily thereis no duty to warn those not in the intended line of play.

Distance Makes A Difference

In an early Scottish case a player was standing near the edge of the fairway watching his opponent’sapproach shot to the third green. On another part of the course was a second group and, while drivingdown a clear and open fairway, a member’s ball was sliced to the right and struck the first mentionedplayer. In denying a recover, the court stated that a full shot down an open course, when the nearestperson in front was within forty yards away and well out of the direction, did not constitute negligence. Thestroke might not have been correctly played, as was indeed evidenced; by the slice on the ball, but thatcould not create legal liability or of itself give a right to damages to a person struck.

So Does Distance and Direction

This decision was used as a basis for determining that no liability existed in a Pennsylvania case where aplayer was holing out on the sixth green, which was 100 feet back of the seventh tee and to its left 120 feet.In making his drive from the tee, another player hit his ball at a sharp angle to the left and caused it to strikethe first player in the mouth. No warning was given until someone saw that the ball was traveling in thewrong direction. It was held that, inasmuch as the injured person was not where anyone could reasonablybelieve that he was in danger of being struck by a ball driven from the seventh tee, there was no duty towarn him of the intended drive. No rule or custom of the game was disregarded and therefore it could notbe said that anyone was at fault.

Negligence of Injured Person

In none of the reported cases has a recovery been denied because of contributory negligence on the partof the injured person, despite the rule that his failure to use reasonable care for his own safety usually is agood defense. Verdicts of no liability are generally justified on the ground that no breach of duty has beenproven. Thus, in a Kentucky case, a caddy was stuck by a hooked ball while standing in the rough to theleft of the third fairway waiting for the players to make their drives. The players and caddies at the time of the accident were in plain view and were observing each other’s movements. It was held that there was noduty in this instance to warn the caddy of what he already knew; namely, that a player was about to drive,inasmuch as warning is never required to be given to persons aware of potentially dangerous movementsabout to be made.The same view has been expressed by a New York court, which observed that a caddy is charged with theduty to watch his player drive, to watch the flight of his ball, and to mark it when it comes to rest. A player is justified in acting upon the assumption that caddy is doing that for which he is being paid and, therefore,there is no occasion to warn him.