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"Fore" Suit Argued before NY High Court

ALBANY

In a somewhat bizarre case, the New York State Court of Appeals is faced with a decision that could make a long-lasting impact on the game of golf. If you're a "Shankopotomus" golfer, should you be legally required to yell FORE! before every shot, even if it those around you appear to be outside of the danger zone?

Here are the facts:  a few wealthy doctors had set out for a day on the golf course. On the first hole, after teeing off, the plaintiff was struck in the head by a "shanked" ball, hit by his friend.  The defendant's ball was hit so poorly that it veered about 50 degrees off course.  The plaintiff was partially blinded, and alleges that he has lost millions in lost wages because he can no longer practice medicine.  The injured doctor argued that his partner owed him a duty of  "FORE" warning him that the ball was coming towards him.

Those of us who golf know that the occasional "shank" is inevitable.  We also are generally confident that if our golf buddies are out of the "line of fire," it's safe to take a swing.  The question before the court seems to turn on whether a golfer who regularly shanks the ball owes an enhanced duty of warning his partners of the potential danger of being anywhere near him.

In New York, like most jurisdictions, a spectator or participant in a sporting event impliedly accepts that there is some foreseeable potential for injury.  As examples, think about the all-too-common foul ball in the face at a baseball game, or even the batter getting hit with a pitch (you don't see Tim Wakefield suing 178 MLB pitchers!).  But in golf, is there an implied risk of getting hit by a ball?  Does a golfer, by stepping on the course, accept the risk of getting hit by a stray ball?  The lower court said that based on a reconstruction in this case, that the plaintiff was NOT in the foreseeable "danger zone," and as such was not entitled to a "FORE!" warning.  

Stay tuned on this one - if the Court of Appeals reverses and sides with the injured doctor, it could set a precedent that would require golfers to yell "FORE!" even when there's a very small chance of hitting anyone.

Sam Breslin is an associate at Dreyer Boyajian LLP, and has only injured himself once while golfing.

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