Golf and the Law
Long Irons and the Long Arm of the Law – the errant golf ball shot
If you have ever played golf you know that even the best make bad shots. Imagine hitting a towering drive, one that should go 350 yards, but as it rises, it starts to hook to the right, away from the fairway, over the trees and a tiny fence. There is a quiet road beyond the fence. You start thinking that you just lost your ball – no big deal. Then, driving past the trees on that quiet road, is a guy in his new SUV. You couldn’t hit it in a million years if you tried. But you didn’t try, and nevertheless, your ball is homing in on his windshield like a smart bomb. This is a true story – it happened to my brother-in-law, when his game was a little off compared to the pros.
Impact! The windshield was shattered, but the safety glass kept the pieces from flying everywhere. His heart started racing – would the car crash? It came to a stop. The driver peeked out at his damaged car. He decided to confront the golfers, and drove through a gap in the fence, past the trees, and up the fairway straight for my brother-in-law. Of his three golf buddies, only two held their ground. The third made off in the golf cart claiming he was going to call for help. I guess the clubhouse phone is better than a cell phone when you’re yellow.
So it was three against the SUV. The irate driver exited his car and demanded to know who hit that shot. My brother –in-law admitted he did it, but that it was an accident. That did not appease him, as he wanted restitution for the broken windshield. He even grabbed some clubs, and was about to break them, but he thought better of it. Well, I could go on all day long about the legal implications of the driver’s bad behavior – trespassing, damaging the fairway, driving where he was not allowed, menacing, and so forth.
Fortunately, cooler heads prevailed. My brother-in-law had called the police – he said, “Look, we can work this out – either your insurance, my insurance, or the club will take care of this.” They exchanged information. The driver then took off, after an older club member came by and castigated him for ruining the course with deep tire tread marks on the fairway. Eventually, my brother-in-law called me. He wanted to know, was he responsible for his errant shot that went wide right? The short answer is no, he was not, but getting there is not always so clear. Three main questions must be answered.
First of all, we need to establish that he was golfing on a proper course – had he been just taking shots in a park, or off his deck in his backyard, he probably would be 100 percent liable for the damage his ball created. Being in the wrong place playing a sport is an important factor. However, he was on a legitimate golf course, and had paid to play, so he was entitled to be there. That put him in a much better position with regards to liability.
Next, I asked – were you following the rules of golf? He was, as he yelled “Fore!” when the ball when wide, just to alert anyone off the fairway. He was hitting on his turn, and all around him were aware of it. Apparently, the law inquires as to whether you follow the rules, as those playing understand that there is a certain amount of danger in playing golf – either from a swinging club or a speeding ball – and implicitly accept that in order to play. If you follow the rules, you have done all you could in the case of a bad shot, a risk all golfers assume once they take the course. An example of not following the rules would be to let your group walk off without telling them you were going to re-shoot off the tee, and nailing one of them in the back of the head with a line drive, even if an accident. They would not expect that such a shot was coming, and yelling “Fore!” might not be good enough. According to the law, such play would be beyond the risks that the other golfers had “assumed” when they agreed to play.
Third, he did not intend to hit the ball where it went, it was an accidental, shanked shot. Absent intent, it is hard to fault him, and negligence here generally falls on the golf course, not the player. The golf course has reason to know that golfers can shank a shot at any time. A nearby road should be shielded with a fence high enough to protect passers-by from the ordinary skewed shot. The law gives deference to sports, and players, and wants to encourage such activity. To do otherwise might chill the desire to play.
However, the driver had not assumed any risk – he was not even playing golf. It would be unfair for him to be damaged and left without recourse. The risk of loss and liability is thus shifted to the party best able to prevent it, which is the golf course. A high fence with a warning sign should have been in place. The driver should recover the cost of his broken windshield from the golf course.
Incidentally, the driver never contacted my brother-in-law. His own misdeeds after the impact may have far outweighed the innocently misdirected ball.
Robert Ricco, an attorney admitted to practice in New Jersey and New York, lives in Bergen County. He welcomes questions from readers about legal issues affecting everyday life in suburbia. This column is not intended to be a comprehensive summary of recent developments in the law nor is it intended to provide legal advice or to render a legal opinion. Readers are advised to consult their own attorney for legal advice.