By: Rob Harris
As David Owen so insightfully shares with us in his must read, My Usual Game (and, remember, it is holiday season: Amazon, $17.10, $10.99 Kindle edition), “in Myrtle Beach, the basic social unit is not the couple or the family but the foursome.”
Now, courtesy of a New Jersey court decision, Corino v. Duffy, ESX-L-1111-12 (November 22, 2013), we have additional guidance about the legal rules that govern the golfing group.
Allow Judge Vena, of the Essex County Superior Court, to set the stage:
“On August 23, 2011, Defendants were playing golf together at Skyview Golf Club. That same day, Plaintiff was also engaged in a round of golf at Skyview with his brother, Carl. At the time of the incident, Mr. Corino and his brother were preparing to take their third shots from the middle of the 15th fairway. The Defendants’ threesome was stationed at the 16th tee. At Skyview, the 15th and 16th fairways are parallel to one another, but run in opposite directions… The layout of the 15th and 16th fairways at Skyview makes players standing on the 15th fairway susceptible to errant shots “sliced” from the 16th tee. This is precisely the scenario in which Mr. Corino was seriously injured.
“Mr. Corino and other witnesses stated that Mr. Duffy and each of his partners already hit one tee shot and Mr. Duffy was the last of the threesome to hit. After seeing Defendants’ threesome complete three shots, Mr. Corino prepared to hit his own ball on the 15th fairway. Unbeknownst to Mr. Corino, however, Mr. Duffy took a provisional second shot from the 16th tee. Mr. Duffy sliced his ball over the sparse tree barrier separating the 15th and 16th fairways, and the golf ball struck Mr. Corino in his right eye. Mr. Corino claims that he did not hear anyone yell “fore” or provide any other warning prior to the ball striking him. The errant shot broke the sunglasses Mr. Corino was wearing at the time, and the broken shards of glass severely lacerated his eye.”
Now the legal fun begins.
Mr. Corino brought suit—no surprise there. However, he did so, not only against Mr. Duffy, but also against the other golfers in Duffy’s group. According to Mr. Corino, Duffy’s golfing compatriots “behaved recklessly and violated the Rules of Golf by permitting Mr. Duffy to return and take a second tee shot (commonly known as a ‘provisional shot’ or a ‘mulligan’) and by failing to call ‘fore’ or otherwise warn of Mr. Duffy’s errant shot as it approached the 15th fairway.”
As Judge Vena noted, “golf is a sport generally played without the supervision of a referee or umpire. Therefore, the game relies on the integrity of the individual players to demonstrate safety and consideration for others. Players are expected to abide by particular rules and exhibit certain etiquette while on the golf course.”
As to these rules, Judge Vena observed that “the United States Golf Association specifically enumerates the following relevant safety provisions:
1. Players should ensure that no one is standing close by or in a position to be hit by the club, the ball, or any stones, pebbles, twigs, or the like.
2. Players should not play until the players in front are out of range.
3. If a player plays a ball in a direction where there is a danger of hitting someone, he should immediately shout a warning. The traditional word of warning in such a situation is “fore.”
Noting that under New Jersey law, “recklessness” is “the appropriate standard for determining tort liability in the sport of golf,” Judge Vena, quoting the applicable legal definition, explained that “an actor acts recklessly when he or she intentionally commits an act of unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences.” Thus, a golfer’s “decision to take an unannounced provisional shot ‘while perceiving plaintiff to be in the “line of fire” [could] constitute reckless conduct.”
But what about Mr. Duffy’s playing partners? What liability did they face? What if they knew that Duffy’s untimely and errant mulligan was skull-bound and they nonetheless chose not to utter a “fore” letter word?
According to Judge Vena, a golfer—even when a member of the “social unit” described by David Owen—remains a solitary creature where legal liability is concerned. He bears no legal responsibility for the actions of his playing companions.
As Judge Vena explained, “neither of the [playing companions] … hit the errant shot that injured Plaintiff. …It is not the state of mind or intent of [the playing companions] that requires assessment here…In the matter presently before this court, it is undisputed that Mr. Duffy hit the ball that struck and injured Mr. Corino. Thus, the actor in this case is Mr. Duffy, and any assessment of his co-defendants’ respective mental states is irrelevant.” Even if “the decision to allow Mr. Duffy to take a ‘mulligan’ was made by all three Defendants,” “it is the state of mind and conduct of the actor that is essential to a finding of recklessness.”
Judge Vena reached the same conclusion regarding the “Rules of Golf and the applicable safety and etiquette provisions, one of which expressly states that a player should call ‘fore’ if he sees that his shot may strike and injure another party.” As he noted, “the provision does not bind the player’s partners by the same duty. …That duty, according to the Rules, belonged solely to the acting player, Mr. Duffy.”
So, for those of you who tee it up regularly with an etiquette-challenged, disrespectful rube, or simply an enthusiastic golfer who has trouble keeping the ball in the fairway, rest easy. You may golf together, dispensing mulligans to your heart’s content, with disregard to those in neighboring golfing clans, knowing that you will never be forced to share a legal foxhole with your tortfeasing partner. At least not in New Jersey.
*Many thanks to Jon Orleans, employment attorney par excellence and frequent golf compatriot, with whom (thanks to a good insurance policy) I always feel protected, for introducing me to this entertaining and enlightening court decision.