New York Court of Appeals Affirms Dismissal of Suit Against Bad Golfer Who Failed to Yell "Fore" Before Shanking Shot that Blinded Friend

NEGLIGENCE – ASSUMPTION OF RISK – RECREATIONAL ACTIVITIES – MIS-HIT GOLF SHOT
Anand v. Kapoor
(Ct. Apps., decided 12/21/2010)

Not a coverage case, but noteworthy coming out of the New York Court of Appeals yesterday.

While playing golf at a nine-hole golf course in Suffolk County, Dr. Anoop Kapoor "shanked" a shot, striking his friend and long-time golfing partner Dr. Azad Anand in the left eye, with the errant ball.  The accident occurred during play on the first hole.  Kapoor's second shot landed in the "rough."  Without waiting for Kapoor to retrieve his ball, Anand went to look for his on the fairway.  Kapoor, meanwhile, found his ball and, without calling "Fore" or giving any other warning to his friends, hit the shot that went in an unintended direction and struck Anand.  Deposition testimony of the three differed as to how far and what angle Anand was from Kapoor when he mis-hit his shot out of the rough.  Anand suffered retinal detachment and permanent loss of vision in the injured eye.

Anand and his wife commenced this personal injury action against Kapoor, asserting that Kapoor's failure to warn of his shot amounted to negligence and proximately caused Anand's injury.  After discovery, Supreme Court granted Kapoor's motion for summary judgment and dismissed the complaint, both for the reason that Anand was not in the foreseeable zone of danger and on assumption of risk grounds.  The Appellate Division, with one Justice dissenting, affirmed.  The same Court granted the Anands' motion for leave to appeal to this Court.

In AFFIRMING the suit's dismissal, the Court of Appeals rejected plaintiffs' contention that defendant's failure to yell "Fore!" before hitting his shot was intentional or reckless conduct or unreasonably increased the risks that a golfer ordinarily appreciates and assumes in playing the game of golf:

A person who chooses to participate in a sport or recreational activity consents to certain risks that "are inherent in and arise out of the nature of the sport generally and flow from such participation" (Morgan v State, 90 NY2d 471, 484 [1997]). A court evaluating the duty of care owed to a plaintiff by a coparticipant in sport must therefore consider the risks that the plaintiff assumed and "how those assumed risks qualified defendant's duty to him" (Turcotte v Fell, 68 NY2d 432, 438 [1986]).  However, a plaintiff "will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks" (Morgan, 90 NY2d at 485 [citations omitted]).

Here, Kapoor's failure to warn of his intent to strike the ball did not amount to intentional or reckless conduct, and did not unreasonably increase the risks inherent in golf to which Anand consented. Rather, the manner in which Anand was injured — being hit without warning by a "shanked" shot while one searches for one's own ball — reflects a commonly appreciated risk of golf (see Rinaldo v McGovern, 78 NY2d 729, 733 [1991]).