| Anand v Kapoor |
| 2009 NY Slip Op 03110 [61 AD3d 787] |
| April 21, 2009 |
| Appellate Division, Second Department |
| Azad Anand et al., Appellants, v Anoop Kapoor,Respondent. |
—[*1] Ryan, Perrone & Hartlein, P.C., Mineola, N.Y. (William D. Hartlein and William T. Ryan ofcounsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Nassau County (De Maro, J.), datedMay 7, 2007, as granted the defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff Azad Anand (hereinafter the plaintiff) was seriously injured when he wasstruck in the eye by a golf ball hit by the defendant, Anoop Kapoor. The plaintiff and thedefendant are both physicians, and prior to the accident they had been friends for many years andoften golfed together. On the morning of October 19, 2002, the plaintiff and the defendant wentto the Dix Hills Park Golf Course to play golf with a friend, Balram Verma. During play at thefirst hole, after each member of the threesome had hit two shots, they separated and walkedtoward their respective golf balls. At his deposition, the plaintiff testified that as soon as helocated his ball on the fairway and turned around to assess where the other members of his grouphad gone, he was struck by the defendant's misdirected ball. The plaintiff estimated that he wasapproximately 15 to 20 feet in front of the defendant when the errant ball was hit. He admittedthat it was customary for members of the same golfing party to stand behind the person hittingthe ball.
Although Verma similarly testified at his deposition that the plaintiff's ball was about 20 feetforward of the defendant's ball at the time of the accident, he additionally indicated that theplaintiff was at an angle approximately 50 degrees away from the hole in the green where thedefendant was directing his shot. In contrast, at his deposition, the defendant testified that theplaintiff was standing [*2]at a considerably greater distance infront of him when the shot was hit, and was at an angle approximately 60 to 80 degrees awayfrom his intended line of flight. While the defendant did not see anyone standing between hisball and the hole when he approached to make his shot, he admitted that he did not actuallyknow where either the plaintiff or Verma was prior to hitting the ball. While the defendantfurther maintained that he shouted out a warning to the plaintiff when he realized that the ballwas headed in his direction, neither the plaintiff nor Verma heard any warning.
After depositions were completed, the defendant moved for summary judgment dismissingthe complaint. In support of his motion, the defendant argued that the plaintiff had assumed therisk of being hit by a misdirected golf ball by voluntarily participating in the game of golf. Thedefendant also argued that, even assuming that a golfer owes a duty to another person to givewarning by yelling "fore" before hitting the ball, such a duty only exists where the other personis within the intended line of flight of the golf ball. The defendant maintained that, under thecircumstances of this case, he had no duty to yell "fore" because his deposition testimony,Verma's deposition testimony, and a photograph recreating the respective positions of the threegolfers prepared by the plaintiffs' counsel, all demonstrated that the plaintiff was standing at anangle so far from the intended line of flight that he was not within the foreseeable ambit ofdanger. In opposition to the motion, the plaintiff relied, inter alia, upon an affidavit of a golfprofessional who opined that the defendant violated the "universally recognized" rules andprocedures of the game by making a shot without first ascertaining that the other members of hisgroup were not in a position to be struck by an errant ball, and by failing to give warning beforestriking the ball. The Supreme Court, among other things, granted the defendant's motion forsummary judgment, concluding that while this was a terrible accident, being struck by an errantgolf ball was an inherent risk of the game of golf. The court further concluded that no one was inthe intended line of flight when the defendant struck the ball. We affirm.
We acknowledge that there is authority which holds that "[a] golfer has a duty to give atimely warning to other persons within the foreseeable ambit of danger" (Jenks vMcGranaghan, 30 NY2d 475, 479 [1972]; see Richardson v Muscato, 176 AD2d1227 [1991]; McDonald v Huntington Crescent Club, 152 AD2d 543 [1989]; Noe vPark Country Club of Buffalo, 115 AD2d 230 [1985]; Jackson v Livingston CountryClub, 55 AD2d 1045 [1977]). Our dissenting colleague concludes that the defendant failedto make a prima facie showing that the plaintiff was not in the foreseeable ambit of dangerbecause both golfers were on the same fairway. However, in our view the photograph depictingthe positions of the three golfers prepared by the plaintiffs' counsel, as well as the depositiontestimony of the defendant and Verma, are sufficient to establish that the plaintiff was at so greatan angle away from the defendant and the intended line of flight that he was not in theforeseeable danger zone. As the Court of Appeals explained in Jenks, while there is nofixed rule regarding the distance and angle which are considered within the ambit of foreseeabledanger, "if the distance and angle are great enough they are not within the danger zone asdefined by previous cases" (Jenks, 30 NY2d at 480). In Jenks, the Courtultimately concluded that the injured plaintiff, who was standing on another tee about 25 yardsaway from the intended line of flight, was not within the zone of danger. The JenksCourt also cited a Georgia case where the court held that there was no negligence in failingto give advance warning notwithstanding that the plaintiff was only 17 degrees away from theintended line of flight (id. at 479, citing Rose v Morris, 97 Ga App 764, 104SE2D 485 [1958]). Here, the testimony of the defendant and Verma establish that the plaintiffwas at least 50 degrees away from the intended line of flight, and their testimony is corroboratedby the photograph prepared by the plaintiffs' counsel. Accordingly, under the Jenks lineof authority, the defendant owed no duty to the plaintiff to give warning of his intent to hit theball, and cannot be held liable for his misdirected shot on this [*3]basis.
More fundamentally, we note that a rule recognizing that liability can be predicated upon agolfer's negligent failure to give warning before hitting the ball is inconsistent with the doctrineof primary assumption of the risk as it has developed in the years since the Court of Appealsdecided Jenks in 1972. Modern developments in the doctrine of primary assumption ofthe risk set limits on the duty of care owed to participants in sporting and recreational activitiesby requiring that the existence of a duty be evaluated against a consideration of the risks theplaintiff assumed when he or she elected to participate in the event, and "how those assumedrisks qualified defendants' duty to him [or her]" (Turcotte v Fell, 68 NY2d 432, 438[1986]; see Morgan v State of New York, 90 NY2d 471, 485 [1997]). By voluntarilyparticipating in a sporting or recreational activity, the plaintiff is deemed to have consented, inadvance, " 'to relieve the defendant of an obligation of conduct toward him [or her], and to takehis [or her] chances of injury from a known risk arising from what the defendant is to do or leaveundone . . . The result is that the defendant is relieved of legal duty to the plaintiff;and being under no duty, he [or she] cannot be charged with negligence' " (Turcotte, 68NY2d at 438, quoting Prosser and Keeton, Torts § 68, at 480-481 [5th ed]). The riskswhich participants in sporting or recreational activities are deemed to have consented to arethose "commonly appreciated risks which are inherent in and arise out of the nature of the sportgenerally and flow from such participation" (Morgan v State of New York, 90 NY2d at484). Risks which fall outside the scope of the doctrine are those of reckless or intentionalconduct, or concealed or unreasonably increased risks (see Morgan v State of New York,90 NY2d at 485; Benitez v New York City Bd. of Educ., 73 NY2d 650, 658 [1989];Turcotte, 68 NY2d at 439).
The Court of Appeals has not, in recent years, considered the doctrine of primary assumptionof the risk as it applies to the game of golf. However, the Court observed in Rinaldo vMcGovern (78 NY2d 729, 733 [1991]) that "[a]lthough the object of the game of golf is todrive the ball as cleanly and directly as possible toward its ultimate goal (the hole), thepossibility that the ball will fly off in another direction is a risk inherent in the game." Indeed,the risk of being hit by an errant golf ball is little different from the risk of being hit by amisdirected ball at a baseball, basketball, soccer, or tennis game. The risk of being hit by amisdirected ball is equally inherent in each sport. Thus, application of the doctrine of primaryassumption of risk provides an additional basis for affirmance because it compels us to concludethat the plaintiff assumed the risk of being struck by a poorly executed shot.
Moreover, we cannot agree with our dissenting colleague that the defendant's failure tofollow a rule of golfing etiquette which requires a golfer to yell "fore" before hitting the ballconstituted an unreasonably increased risk which the plaintiff did not assume by playing golf. Aspreviously discussed, the defendant did not violate this golfing tradition as a matter of lawbecause his fellow golfers were so far from the intended line of flight of his ball as to be outsidethe foreseeable zone of danger. In any event, even assuming that the defendant was negligent infailing to ascertain precisely where the other members of his party were before hitting the ball, orthat they were close enough to the intended line of flight of his ball to require him to call out awarning, such carelessness does not rise to the level of creating a dangerous condition over andabove the usual dangers inherent in participating in the sport of golf (see Morgan v State ofNew York, 90 NY2d at 485).
We further disagree with our dissenting colleague's conclusion that the Court of Appeals'rationale in Turcotte (68 NY2d 432 [1986]) is inapplicable because a golfer's failure toshout "fore" before [*4]hitting the ball provides no competitiveadvantage. In Turcotte, a professional jockey who fell from his mount during a race andwas tragically rendered a paraplegic commenced an action against several parties, including afellow jockey who had allegedly crossed into the plaintiff's lane of travel in violation of aregulation prohibiting foul riding. The Court of Appeals noted that the foul riding rule was asafety measure which established a spectrum of conduct and penalties, depending on whether theviolation was careless or willful, and whether the contact was the result of mutual fault. TheCourt then observed that "[a]s the rule recognizes, bumping and jostling are normal incidents ofthe sport," rather than "flagrant infractions unrelated to the normal method of playing the gameand done without any competitive purpose" (id. at 441). Emphasizing that the essence ofthe plaintiff's claim against the defendant jockey was that he had carelessly failed to control hismount as the horses raced for the lead, the Court concluded that "[w]hile a participant's 'consent'to join in a sporting activity is not a waiver of all rules infractions, nonetheless a professionalclearly understands the usual incidents of competition resulting from carelessness, particularlythose which result from the customarily accepted method of playing the sport, and accepts them.They are within the known, apparent, and foreseeable dangers of the sport and not actionable"(id.). Clearly, there are factual distinctions between Turcotte and the case at barsince bumping and jostling are usual incidents of competition in horse racing, while the practiceof shouting out a warning to individuals who are in the line of flight does not serve a competitivepurpose. However, we do not read the Court of Appeals' rationale so narrowly as to restrict theapplicability of the doctrine of primary assumption of the risk to the negligent violation of ruleswhich are intended to give a player a competitive advantage. To the contrary, the principle to bedistilled from Turcotte is that a defendant unreasonably increases the risks inherent in asport only where his or her conduct is both without competitive purpose and constitutes aflagrant infraction unrelated to the normal method of playing the game. Clearly, the defendant'sallegedly negligent failure to have shouted out a warning before hitting the ball does notconstitute the type of flagrant and unexpected infraction of a rule envisioned by the Court inTurcotte.
Finally, we note that the existence and scope of duty in tort cases is a question of law whichrequires the court to consider and weigh competing public policy considerations (see Espinalv Melville Snow Contrs., 98 NY2d 136, 138 [2002]). As our dissenting colleaguerecognizes, the doctrine of primary assumption of the risk operates to relieve a participant in asporting or recreational activity from a duty of care toward another participant in order to furtherthe policy goal of facilitating free and vigorous participation in such activities. While we aresympathetic to the fact that the plaintiff was seriously injured as a result of this accident, toconclude that the defendant can be held liable in tort for a poorly-executed golf shot because hemay have negligently failed to shout "fore" is inimical to the rationale underlying the doctrine ofprimary assumption of risk, and at odds with the public policy basis for its adoption. Santucci,J.P., Angiolillo, and Eng, JJ., concur.
Chambers, J. (dissenting and voting to reverse the order insofar as appealed from, on thelaw, and to deny the defendant's motion for summary judgment dismissing the complaint, withthe following memorandum): As noted by the majority, the record contains conflicting evidenceas to the location of the plaintiff Azad Anand (hereinafter the plaintiff) in relation to thedefendant at the time of the accident. [*5]In his deposition, thedefendant testified that, prior to hitting the ball which caused the accident, he hit his ball to theleft side of the fairway into the rough. His goal was to hit the ball back onto the fairway andfurther towards the hole. He did not know where his companions were when he hit the "finalball," but he did not see anyone ahead of him.
The defendant's ball went sharply to the right at a low trajectory. After he hit the ball, thedefendant saw that the plaintiff was ahead of him and yelled out. The plaintiff turned, and theball hit the plaintiff in the eye.
During his deposition, the plaintiff estimated that he was 15 to 20 feet in front of thedefendant at the time the defendant yelled out. A third companion testified at his deposition thatthe plaintiff's ball was 20 feet in front of the defendant's ball, which supported the plaintiff'stestimony that he was 15 to 20 feet in front of defendant, since the plaintiff had reached his ownball at the time the accident occurred. However, the actual distance between the players isunclear.
The defendant acknowledged that a player is generally required to yell "fore" before hittingthe ball to warn other players, which the defendant did not do. However, the defendant claimedhe was not required to yell "fore" in this instance because no player was in his intended line ofplay.
The plaintiff submitted the affidavit of a golf expert, who stated that the rules of golf requirethat players should not play until players in front are out of range, and golfers are required to yell"fore" if a golfer in the group is in a position to be hit by an errant ball. Here, the plaintiff and thedefendant were on the same fairway.
The order appealed from, inter alia, awarded the defendant summary judgment on the groundthat the plaintiff was hit by an "errant ball" and the plaintiff was not in the "intended line offlight." The majority would affirm on the ground that there is "sufficient" evidence in the recordto support the conclusion that the plaintiff was not in the intended line of flight of the defendant'sball.
The majority acknowledges that the Court of Appeals has held that a "golfer has a duty togive a timely warning to other persons within the foreseeable ambit of danger" that he or she isabout to hit the ball, by yelling "fore" (Jenks v McGranaghan, 30 NY2d 475, 479 [1972];see Johnston v Blanchard, 301 NY 599 [1950]; Richardson v Muscato, 176AD2d 1227 [1991]; McDonald v Huntington Crescent Club, 152 AD2d 543 [1989]).Jenks further held that there is generally "no duty to warn persons not in the intendedline of flight on another tee or fairway" (Jenks, 30 NY2d at 479 [emphasisadded], citing Rose v Morris, 97 Ga App 764, 104 SE2d 485 [1958] [no duty to warn aplayer 125 yards away on a different fairway]). Contrary to the majority's conclusion, theforeseeable zone of danger is not limited to the intended line of flight (see Simpson v Fiero,237 App Div 62 [1932], affd 262 NY 461 [1933]; accord Boozer v ArizonaCountry Club, 102 Ariz 544, 547, 434 P2d 630, 633 [1967] [zone of danger includessomeone standing 50 degrees from the intended line of flight]; Bartlett v Chebuhar, 479NW2d 321 [Iowa 1992]).
Although a minority of jurisdictions subscribe to a view which limits the duty to warn to"only to those persons in the intended line of flight" (Thomas v Wheat, 143 P3d 767, 770[Okla 2006]), New York does not subscribe to the minority view. In Rinaldo vMcGovern (78 NY2d 729 [1991]), the Court of Appeals revisited the issue, and found thatthe duty to warn did not extend to persons outside the tee or fairway, on the ground that suchpersons in all probability would not have heard or heeded the warning; therefore, the possibilitythat giving the warning would have prevented the accident was remote. However, the Court ofAppeals did not equate foreseeable zone of danger with [*6]intended line of flight.
The majority further concludes that the Jenks line of cases is no longer good law, onthe ground that those cases are inconsistent with the doctrine of primary assumption of the risk. Idisagree.
Pursuant to the doctrine of primary assumption of the risk, a participant in a sport assumesall commonly appreciated risks inherent the sport, but does not assume the risk of conduct whichunreasonably increases the sport's inherent risks (see Morgan v State of New York, 90NY2d 471, 485 [1997]). The purpose of applying the doctrine of primary assumption of the riskto sports activities is to "facilitate free and vigorous participation in athletic activities"(Benitez v New York City Bd. of Educ., 73 NY2d 650, 657 [1989]). The question ofprimary assumption of the risk was, in fact, raised in Jenks. The Appellate Division,Third Department, found that a golfer does not assume the additional risk that another player willhit a ball without proper warning (see Jenks v McGranaghan, 37 AD2d 638, 639 [1971];Jenks v McGranaghan, 32 AD2d 989, 990 [1969]).
In Turcotte v Fell (68 NY2d 432, 441 [1986]), the Court of Appeals found that "therules of the sport . . . do not necessarily limit the scope of the professional'sconsent." In that case, the plaintiff, a professional jockey, was injured when the defendantallegedly engaged in "foul riding" in violation of the rules of horse racing set forth in 9 NYCRR4035.2 by crossing within the plaintiff's lane of travel. The action was dismissed based upon thedoctrine of primary assumption of the risk. The Court found that by participating in the sport, theplaintiff consented to injury-causing events which "are known, apparent or reasonablyforeseeable consequences of the participation," including violation of the rules of the game(id. at 439, citing Maddox v City of New York, 66 NY2d 270, 277-278 [1985]).
Turcotte is distinguishable from the instant case, on the ground that violation of thegolfer's rule to yell "fore" gives the golfer no competitive advantage (see Kramer v Arbore,309 AD2d 1208 [2003]), there was a reasonable expectation that the defendant golfer wouldgive a warning, assuming that the plaintiff was in the foreseeable zone of danger, and the instantcase did not involve professional players. In Turcotte, on the other hand, the plaintiffconceded that "there is a fine line between what is lawful and unlawful in the movement of ahorse on the track during a race" (68 NY2d at 440-441). The Court noted that "bumping andjostling are normal incidents of the sport" to gain a competitive advantage (id. at 441).Further, the case involved professional participants, who are in a unique position to assess therisks of the sport. It is well-settled law that "a higher degree of awareness will be imputed to aprofessional than to one with less than professional experience in the particular sport"(Maddox v City of New York, 66 NY2d at 278).
In determining whether the violation of a rule or custom of the sport gives rise to liability,one must look to whether the violation unreasonably increases the risks of the sport, and is aproximate cause of the accident. Liability may be imposed where a warning is required in aneffort to limit accidental injuries—such as a rule requiring that a turkey hunter not shootuntil he or she clearly sees the whole turkey and is able to ascertain its gender, to avoid shootinga fellow hunter by mistake (see Jacobs v Kent, 303 AD2d 1000 [2003]).
Further, the courts have recognized that there are certain customs of a sport—thepurpose of which is to insure that participants are aware of the risks—and if those customsare observed, there is no liability (see Tindall v Ellenberg, 281 AD2d 225 [2001]).Tindall v Ellenberg involved a fox [*7]hunt, where thedefendant's horse kicked the plaintiff as the plaintiff was attempting to pass it. The court, inabsolving the defendant of liability, noted that "the offending horse was clearly marked for itspropensities with a red tail ribbon in conformity with the custom of the sport" (id.). Onthe other hand, the violation of a rule or custom requiring a warning may raise questions of factas to liability (see Tuttle v TRC Enters.,Inc., 38 AD3d 992 [2007] [failure to put out yellow flag warning of a stalled vehicle ona bicycle course]).
Here, there is a question of fact as to whether a violation of the rule or custom of the sportviolated reasonable expectations (see Tindall v Ellenberg, 281 AD2d 225 [2001]),unreasonably increased the inherent risks of the sport (see Morgan v State of New York,90 NY2d at 485), and constituted a proximate cause of the accident (see Rinaldo vMcGovern, 78 NY2d 729 [1991]). The question of whether the injured plaintiff assumed therisk of his injury may still be determined by the jury, but may not be determined as a matter oflaw. Accordingly, the defendant's motion for summary judgment dismissing the complaintshould have been denied.