Golfer Liability: Who Pays for that Errant Tee Shot?
Updated: Oct 24, 2017
Ever stared down a narrow fairway bordered by highway or houses and pondered your potential liability if you shanked it? Ever considered the consequences of a monster “power fade” into a foursome on the neighboring hole? We all have. I set out here to answer these and a few other questions of golfer liability.
Judge Nicholas M. Pette eloquently opined in 1933 that a “golf ball in itself is an innocent, lawful article, and so is the club which drives it. The game itself, being fundamentally honorable and sportsmanlike, suggests nothing imminently unlawful or hazardous about it.” Rather, it is the golfer, wielder of club and propeller of ball, who creates risk. And where there’s risk, there’s liability. Below I discuss how the courts have allocated liability for the occasionally harmful byproducts of our beloved sport.
Vehicle Driving on a Public Highway
One golfer had a successful drive on the first tee. Upon striking the ball a second time, however, “it went to the right over the fence, on to the roadway, and struck the windshield of [a] car.” The ball shattered the windshield and injured the driver, who brought suit in state court for negligence and nuisance. The golfer artfully argued that (1) he did not intend to hit the ball where it went and (2) it was an “act of God” in the form of an unforeseeable “atmospheric condition” that caused the ball to veer off course.
The trial court determined the vehicle’s driver had a right to drive her car along the highway and that she “could not be expected to watch out for deflected golf balls in the path of her car.” It also concluded that the golfer was liable under a theory of negligence, because he should be “accountable for the natural and probable consequences of his act in propelling the ball.” Gleason v. Hillcrest Golf Course, Inc., 265 N.Y.S. 886 (1933).
Alas, the right to play golf bends to the needs of public byways. Consider “clubbing down” to avoid a roadway in the distance.
A Person Living or Property Near a Golf Course
A homeowner lived near the thirteenth hole of a golf course, although between his property and the hole was “approximately 20 to 30 feet of rough, and located in that golfer’s no-man’s land [was] a natural barrier of 45- to 60-foot-high trees.” An unlucky golfer somehow (yet unsurprisingly) managed to hook his shot over the trees and into the homeowner’s patio area, striking the homeowner. The homeowner, who was hospitalized for four weeks as a result, sued the golfer under theories of negligence and nuisance.
The court found in favor of the golfer. It concluded that “one who chooses to reside on property abutting a golf course is not entitled to the same protection as the traveler on the public highway.” Furthermore, the court noted that “there is no duty to shout ‘fore’ where [a person] is not in the line of play or is on a contiguous hole or fairway.” Only where danger is reasonably anticipated to another is the golfer required to shout that feared four-letter word. Nussbaum v. Lacopo, 27 N.Y. 2d 311 (N.Y. 1970).
The same general principle also applies to properties abutting a golf course that are damaged by errant golf balls; one who buys a home near a golf course assumes a substantial amount of risk that her home may be damaged due to the proximity to the course.
Teeing off on the par-three eighth, a golfer hooked his ball at an inopportune moment: right as another golfer walked out from the screen protecting the ninth tee upon which he had been standing seconds before. The former golfer’s ball struck the latter in the eye, causing blindness therein. Litigation ensued.
Under these facts, the court of appeals found for the golfer who struck the ball. It rejected a claim of liability sounding in negligence, because “generally, there is no duty to warn persons not in the intended line of flight on another tee or fairway of an intention to drive.” Jenks v. McGranghan, 285 N.E.2d 876 (N.Y. 1972). The Courts in Georgia and California agree. See, e.g., Rose v. Morris, 104 S.E. 2d 485 (Ga. Ct. App. 1958); Strand v. Conner, 24 Cal. Rptr. 584 (Cal. Ct. App. 1962). Engaging in the sport of golf involves an assumption of risk, which extends to all golfers on the course (and as discussed above, people who choose to live nearby). Assumption of risk applies even and especially where one injures himself. See Shin v. Ahn, 165 P. 3d 581 (Cal. 2007) (“[T]he primary assumption of risk doctrine does apply to golf and … being struck by a carelessly hit ball is an inherent risk of the sport.”).
Mind you, the fact that a golfer is not liable for a poorly hit shot that strikes a fellow golfer does not give another license to “launch one” into the slow-playing foursome ahead. That’s called an intentional tort, for which one would be liable. Likewise, if someone is potentially in your ball’s line of flight, you at the least, owe her a dutiful “fore!”
These cases coalesce around a common theme: those who have chosen to engage the sport of golf, either by playing or by living near it, are generally not protected from a golfer’s badly struck ball. Nevertheless, each case is factually different and depends on a number of diverse considerations. A golfer wishing to protect himself or herself from liability should be sure to abide by the sport’s rules of play and … always hit it straight.