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Golf and the Law
A Closer Look at the Primary Assumption of the Risk Doctrine
By author
This article is about golf and the law. The specific focus is on negligence and the primary assumption of the risk doctrine. When a golfer hits a golf ball that injures another golfer, the injured player may sue, using one or more of the following theories: (1) an intentional tort, such as assault and battery; (2) recklessness; or (3) negligence.

In most cases, recovery under the theory of negligence is unlikely because of the primary assumption of the risk doctrine. This doctrine is based on the view that golfers who play the game assume the level of risk inherent to the game. Thus, when the doctrine applies, it operates as a bar to an injured player recovering on the theory of negligence.

The objective of golf is to hit a golf ball, which is hard enough to cause injury, from the area called the "teeing ground" into a small hole in the fewest number of strokes. The distance between the teeing ground and the hole varies. It can be anywhere up to five hundred yards or so in length, and is often strewn with natural obstacles, man-made hazards, and other players navigating the course. The game also is challenging because the hole measures only four and one-quarter inches in diameter.

Golfers often describe the flight of the golf ball based on its trajectory. For a right-handed player, a ball that curves to the left is called a hook. One that curves to the right is a slice. For left-handed players, the hook-slice description is just the reverse: left is a slice and right is a hook. If the ball goes straight or where it is supposed to go, most golfers call it a miracle. When miracles don't occur, another player is at risk of getting hit.

As one might expect, an official code governs how the game should be played. This code, the Rules of Golf,is supplemented by Decisions on the Rules of Golf, which provides answers to matters not specifically covered in the Rules. Taken together, the rules and decisions constitute the jurisprudence to playing the game.

For the Love of the Game
The game of golf is loved by many, tolerated by others, and affirmatively disliked by the rest. H. L. Mencken, America's beloved curmudgeon and full-time satirist, captured his disdain for the sport when he said that, if he had his way, "no man guilty of golf would be eligible to any office of trust or profit under the United States." Obviously, he was not a fan. Mark Twain is probably in the same camp based on his quip that "golf is a good walk spoiled."

Some have a more tolerant attitude toward the game. The humorist P. J. O'Rourke, for example, might be put in this category. He chipped into the debate by observing that golf "combines two favorite pastimes: taking long walks and hitting things with a stick." Aficionados of the sport know that the game is actually played with a "club," which must meet certain promulgated specifications, and not with a "stick."

Others love the game, no matter how fleeting or episodic their success at getting the golf ball to behave properly. In the film classic Tin Cup, Roy "Tin Cup" McAvoy, played by Kevin Costner, developed a romantic interest inDr. Molly Griswold, played by Rene Russo. During a practice session on the driving range, Molly undergoes metamorphosis in her attitude toward the game. She initially tells "Tin Cup" that golf is "without a doubt, the stupidest, silliest, most idiotic grotesquery masquerading as a game that has ever been invented." But after hitting a great shot, she broadly smiles at her success. She now gets it. Golf can be fun. It is also a multibillion dollar a year business.

For the Love of the Law
Golfers predictably prefer to avoid entanglements with the law during a round of golf. In fact, the law may be the last thing that a golfer wants to think or worry about on the golf course. This avoidance strategy, however, is not always possible. Like it or not, lawyers and judges get involved, especially when another player is injured by an errant ball.

The variety of legal issues associated with golf is surprising. Contract disputes involving hole-in-one contests, product liability claims for defectively manufactured golf clubs, and patent and trademark disagreements are typical.

In PGA Tour v. Martin, 532 U.S. 661 (2001), the United States Supreme Court examined the fundamental nature of the game of golf. It analyzed the application of the Americans with Disabilities Act (ADA) to tournaments sponsored by the Professional Golfers' Association (PGA) Tour. The Tour's "walking-only" rule was challenged by Casey Martin, a disabled professional golfer who had profound difficulty walking. The court found that the ADA applied to tour events. It also found that the "walking-only" rule could be modified to accommodate Martin without fundamentally altering the nature of the game at PGA tournaments. The court held that the tour competition would not be fundamentally altered by accommodating Martin's request to use a motorized cart. This determination required the court to determine what is fundamental to the game.

Inherent Risks of the Game
In the movie Sideways,two friends, Miles and Jack, decide to play a round of golf during a California wine-tasting road trip. Their slow play on the golf course prompts the group playing behind them to hit a golf ball near them. Miles returns the favor by hitting the same ball back at the group. His return volley rattles off the offender's golf cart, and things escalate from there. Ultimately, Jack charges the group behind, wildly swinging a club and yelling, "This is going to be fun." Lawyers and golfers alike are sure to recognize that Jack's charge is not the type of risk inherent to the game. But what are the risks assumed by a golfer?

In Shin v. Ahn, 42 Cal. 4th 482, 64 Cal. Rptr. 3d 803 (2007), the Supreme Court of California recently examined the question of whether the primary assumption of the risk doctrine applies to non-contact sports, such as golf. It had previously held that the doctrine applied to contact sports, such as football, but had left open its application to non-contact sports.

The facts giving rise to the litigation occurred on the par four, thirteenth hole at the Rancho Park Golf Course. The course, which is a popular public course, is owned and operated by the City of Los Angeles, and was built in the late 1940s. The fairways are lined with mature trees, and the terrain is generally hilly.

On the ill-fated day, Johnny Shin, Jeffrey Frost, and Jack Ahn were playing together as a "threesome." After putting out on the twelfth hole, Jack headed for the tee box of the thirteenth hole. Johnny and Jeffrey then finished putting out and followed Jack toward the next hole. Johnny took a shortcut up the hill toward the tee box, which placed him in front of Jack and to his left.

Unwilling to be electronically disconnected from the outside world, Johnny stopped to check his cell phone for messages. He was then about 25 to 35 feet from Jack, who was getting ready to tee off, and at a 40- to 45-degree angle from the intended path of Jack's ball. The stage was set for disaster.

Material facts were, however, in dispute. Johnny claimed that Jack saw him standing in front of him. Jack disagreed. He maintained that he did not see Johnny either when he took a practice swing or when he actually teed off. According to Jack, he was focused on hitting the shot, and did not shout "fore" or any other warning.

As golfers know, the traditional warning "fore" is shouted to warn others on a golf course when there is a danger of hitting them with a golf ball. While the exact etymology of the term is uncertain, one popular view traces the term "fore" to military operations. During the seventeenth and eighteenth centuries, the infantry advanced in formation while artillery batteries fired over their heads. When an artilleryman was about to fire, he would yell "beware before." This forewarning allowed the infantrymen to drop and cover to avoid being hit. Golfers have shortened the warning to "fore."

Whether Jack simply mis-hit the ball or hooked it is not clear from the record, but the result was the same. Johnny was whacked in the head by Jack's ball, and suffered what he claimed were "disabling, serious, and permanent" injuries. As a result, Johnny sued Jack for negligence.

The trial court refused to grant Jack's motion for summary judgment on the theory that triable issues of fact remained. The court of appeal affirmed but added that the general principles of negligence applied. It also concluded that the primary assumption of risk doctrine, which provides that a defendant owes the plaintiff no duty to protect against ordinary or simple negligence, did not apply. The no-duty principle, the court said, was limited to cases where the injured golfer was playing with a different group of golfers. Because the golfers were playing together in Shin, the court of appeal found that general principles of negligence applied.

The California Supreme Court affirmed the court of appeal, but remanded the case with directions that litigation should continue under the primary assumption of the risk doctrine. The court of appeal reached the right result that summary judgment was incorrect, but its legal reasoning was wrong.

According to the supreme court, being hit by a carelessly struck golf ball is an inherent risk of the game. Therefore, the primary assumption of the risk doctrine may operate as a complete bar to a plaintiff's recovery on the theory of negligence. It reasoned that golf balls after being hit by a player often have a mind of their own. A ball that goes astray and strikes another is a risk that all golfers assume when they play the game. Holding golfers liable for controlling their shots, in the court's view, only would encourage lawsuits and prevent players from enjoying the game.

The Shin court looked to sister-state decisions for support, and found it. Cases from Ohio, Pennsylvania, New Jersey, Massachusetts, Texas, and Hawaii confirmed that California was not alone in its approach.

In 1990, the Supreme Court of Ohio decided Thompson v. McNeill, 53 Ohio St.3d 102, 559 N.E.2d 705 (1990). The plaintiff in the case, who was playing in the same group as the defendant, was injured when the defendant "shanked" the ball, causing it to head off at an oblique angle to the intended path. The Thompson court reasoned:

Shanking the ball is a foreseeable and not uncommon occurrence in the game of golf. The same is true of hooking, slicing, pushing, or pulling a golf shot. We would stress that '[i]t is well known that not every shot played by a golfer goes to the point where he intends it to go. If such were the case, every player would be perfect and the whole pleasure of the sport would be lost. It is common knowledge, at least among players, that many bad shots must result although every stroke is delivered with the best possible intention and without any negligence whatsoever.'

The Shin court also consulted the Rules of Golf. The etiquette section to the Rules contains several provisions on safety, such as shouting "fore" to warn others when the danger of hitting another exists, as well as not hitting until those in front are out of range. In what may be surprising to golfers, the court reasoned that these "guidelines" on how the game should be played do not create a basis for legal liability. In the words of the court, "the sanction for a violation of a rule of etiquette is social disapproval, not legal liability."

Having clarified the application of primary assumption of the risk doctrine to golf, the supreme court remanded the case. Shin does not foreclose basing liability on intentional or reckless conduct. In this sense, a golfer continues to have the duty to refrain from conduct that creates a higher degree of the risk of injury than created by simple negligence.

In order to prevail, Johnny would have to prove to the jury that Jack acted either intentionally or recklessly. The record was too sparse to support a finding, as a matter of law, that Jack had acted intentionally or recklessly. On remand, the jury would have to consider the totality of circumstances surrounding the shot. Jack should not have hit his shot without checking to see whether Johnny was likely to be struck. Once having addressed the ball, however, Jack is not required to break his concentration by checking for Johnny's whereabouts.

A cause of action for negligence is based on the idea of preventing an unreasonable risk of harm to another. Under the primary assumption of the risk doctrine, a golfer assumes the ordinary risks inherent to the game by choosing to participate. This necessarily requires a court to determine the nature of the risk that a golfer willingly assumes. Although a golfer may assume some risks associated with playing golf, such as being inadvertently struck by a golf ball, other risks may not be inherent to the game. When a risk is not inherent to the game, the negligence standard continues to apply.
Minan is a Professor of Law at the University of San Diego School of Law. His e-mail is jminan@sandiego.edu.

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