By: Rob Harris
There’s nothing better than autumn golf in the Northeast. Brisk temperature, a swing hopefully grooved from season long play, the liberal invocation of the leaf rule making lost ball penalties an impossibility until spring rolls around again.
Try telling that to Loretta Dalton, who found herself on the receiving end of a markedly misdirected shot struck by her longtime playing partner Phillis MacDonald. And good luck helping Ms. MacDonald find joy in the event, as she found herself on the receiving end of Ms. Dalton’s lawsuit. There was ample New York law that might exonerate Ms. MacDonald. One New York court previously held that, “[a]lthough the object of the game of golf is to drive the ball as cleanly and directly as possible toward its ultimate goal (the hole), the possibility that the ball will fly off in another direction is a risk inherent in the game.” Another court had noted that being struck by a mishit golf ball is an inherent risk of participating in the game of golf.
Here, however, the New York court held that Ms. Dalton is entitled to present her claim to the jury. The reason? The leaf rule. As the court explained:
“On the fourth hole, each player hit their tee shot and then their second shot. Defendant’s second shot went into the rough on the right side of the fairway which was covered with leaves. After defendant hit her second shot from the right side of the fairway, plaintiff and her riding partner drove over to her ball which was on the left side of the fairway near the sand trap. However, defendant, knowing that she would not be able to find the ball because the rough was completely covered in leaves dropped another ball and hit a “mulligan” shot. Defendant’s intent was to hit the ball straight towards the green located on the right, however, the ball went approximately 40 to 45 degrees to the left and struck plaintiff.”
Ms. MacDonald’s decision to reload removed her from the protections afforded by New York case law. According to the court, “issues of fact exist as to whether defendant’s failure to warn that she was taking a ‘mulligan’ shot amounted to intentional or reckless conduct that unreasonably increased the risk inherent in golf. Indeed, defendant had already taken her second shot when plaintiff and her riding partner drove over to their balls on the left side of the fairway near the sand trap. It was at that time that defendant dropped another ball and hit a ‘mulligan’ shot without warning plaintiff.”
So, for all you autumn golfers. Enjoy the weather, the grooved swing, and the leaf rule. Just be sure to tell your playing partner when you’re reloading….and carry a good insurance policy.