Liability of the Golfer
“Shortly after I started playing golf with Jerry Ford, I thought it was time to take some lessons. Not golf lessons.
First aid.” Bob Hope commenting on playing golf with ex-president Gerald Ford.
“Golf offers many healthful advantages to both the golfer and the community. The physical exercise in the fresh
air with the smell of [flowers and trees] renews the spirit and refreshes the body. The sport offers an opportunity
for recreation with friends and the chance to meet other citizens with like interests.... Neighborhoods benefit by
the scenic green belts golf brings to their communities.... Social policy dictates that the law should not
discourage participation in such an activity whose benefits to the individual player and to the community at
large or so great." Yoneda v.Tom, 110 Haw. 367, 133 P.3d 796 (2006), citing Dilger v. Moyles, 54 Cal. App. 4th
1452, 63 Cal.Rptr.2d 591 (Cal Ct. App 1997).
With that consideration as a backdrop, courts have had the occasion to review injuries sustained as a result of
the play of golf. Different circumstances involving injury from the play of golf, such as a golfer hitting a golf
ball and injuring (1) another golfer on the golf course, (2) a resident of a home adjacent to the golf course or (3)
someone on an adjacent roadway have all been subject of court decisions. Summarizing those situations and
based upon the backdrop of the above stated perception of golf's advantages, generally speaking, the golfer and,
in many cases, the golf course operator, such as a club or owners association, have been absolved from liability.
Let's look at a few circumstances.
Golfer Liability to Golfer. While playing golf with friends, a golfer “shanked” a shot striking another golfer in
the left eye with the errant ball. . The injured golfer claimed that the failure to warn (yell “Fore!”) of the errant
shot amounted to negligence and caused the injury. On review, a New York Court found that a person who
participates 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. . While an injured golfer is not deemed to have
assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks, the failure to
warn of the intent to strike the golf ball did not amount to such and did not unreasonably increase the risk nor
did it amount to intentional or reckless conduct. . An errant golf ball reflects a commonly appreciated risk of
golf.
This ruling does not stand alone. The mere fact that a golf ball, when hit, does not then travel its intended course
does not establish negligence. . Whatever the level of ability, golfers cannot avoid a hook or slice. Hence, there
is generally no duty to warn persons not in the intended line of flight of an intention to drive. . Golfers assume
the risk of injury in playing golf given that it is "common knowledge" and "an inherent risk" that golf balls don't
always wind up going where a player intends.
Golfer Liability to Adjacent Property Owner. What about the property owner living adjacent to a golf course
who is struck by an errant golf ball? That question has been answered, also. In a lawsuit alleging liability for
failure to warn the occupant of a nearby residence before driving the ball, (among other claims), the injured
property owner was not successful in his claim for injuries from an errant golf ball. In reviewing the
circumstance, the court noted "persons living in organized communities must suffer some damage, and
annoyance and inconvenience from each other. If one lives in the city, he must expect to suffer the dirt, smoke,
noise some odors, and confusion incident to city life. So, too, one who deliberately decides to reside in the
suburbs on very desirable lots and adjoining golf clubs and thus receive the social benefits and other not
inconsiderable advantages of country club surroundings must accept the annoyances." Consistent with the
above, other courts have found that those property owners living adjacent to a golf course should be viewed
much like a spectator at a sporting event. From that vantage point the assumption of risk, as applied to
spectators at sporting events, also applies to those with homes adjacent to an existing golf course. While
actually not a spectator of golf being played, the adjacent property owner who moves into a home adjacent to an
existing golf course chooses, much like a spectator does, to participate in the benefits of the golf course’s
pastoral setting and accepts the inherent dangers of golf. Importantly these cases do recognize that this result
occurs so long as the golf course has been designed and maintained as a reasonably safe golf course consistent
with the risks inherent in the sport and if so, the course, as well as the golfer, will have no liability to adjacent
homeowner. But that will be discussed more so in our next month's discussion.
Golfer Liability to Pedestrian on Adjacent Roadway. Taking the above one step further, it has been
determined that a golfer who accidentally misses a fairway and sends the ball off the golf course onto an
adjacent roadway can be found not liable in negligence for the resulting injury. Simply stated, what amounted to
nothing more than a poorly hit tee shot does not result in liability to the golfer for injuries suffered by someone
on the adjacent roadway.
Summarizing the above, golfers engaging in the ordinary playing of golf, including miss hit errant golf balls,
will generally not have liability for damages resulting from the errant ball. Country clubs and operators of golf
courses, including the owners associations, may generally enjoy the same status except in those cases that deal
with the liability of the golf course operator for a nuisance or negligent design. But that we will discuss in our
next go around.
Jim Scavo is nationally recognized for his representation of clients involved in
the resort, recreational property, real estate and club and travel industry. His
clients include developers, and managers/clubs associated with golf course
communities and country clubs, multi-location vacation clubs, fractional
developments, destination and travel clubs, cruise club/use offerings,
condominiums, residential second homes and subdivisions. He is well known for
his origination of the legal work on many innovative resort and club products
offered in the United States, some of which have grown to be industry leaders.
Scavo offers his clients a full range of legal services including assistance in club
operational, governance and management issues, covenant and rule
enforcement, project development, financing and creation of club and resort
plan documents, workouts and providing legal advice in respect to compliance with state and federal marketing
regulations.
Scavo received his law degree from St. John’s University in New York in 1976 where he was a member and
editor of the St. John’s Law Review. Jim is a frequent speaker and author in respect to topics regarding resorts
and clubs. He is a Trustee of ARDA, a routine instructor for Continuing Legal Education for attorneys, the
author of many law reviews and trade journal articles regarding resorts, clubs and regulated real estate, a past
national trustee for CAI and past author of the Ask the Attorney Column for the Savannah Morning News.