We all have that one golfing buddy who can’t seem to hit a single straight shot and always requires a baker’s dozen worth of mulligans. But thanks to a recent ruling by a New Jersey Superior Court judge, only the golfer hitting the ball is responsible for yelling “fore!” for errant shots.
Last week Judge Thomas Vena of the Essex County Superior Court dismissed claims against two members of a threesome who kept quiet while the third took a mulligan that struck and injured another player.
In Corino v. Duffy, Judge Vena held in his summary judgment ruling that even if the bystanders agreed to allow the mulligan, “it is the state of mind and conduct of the actor that is essential to a finding of recklessness. . . the co-defendants’ respective mental states is irrelevant.”
Judge Vena’s ruling is significant in that it has now clearly defined that the duty to notify bystanders of wild shots does not extend beyond the golfer swinging the club. But just how did Judge Vena arrive at his conclusion?
This bizarre case arose from an incident at the Skyview Golf Club in Sparta in August of 2011. According to the Court’s summary of the facts, Defendants Bryan Chovanec, Thomas Schweizer, and Kyle Duffy were teeing off on the 16th hole. At the same time, Plaintiff James Corino and his brother, Carl were preparing to take their third shots from the middle of the 15th fairway. At Skyview, the 15th and 16th fairways are parallel to one another, but run in opposite directions. Thus, after a player completes the 15th hole hitting his ball northward, he must essentially reverse directions and tee off southward to begin the 16th. The layout of the 15th and 16th fairways at Skyview makes players standing on the 15th fairway susceptible to errant shots “sliced” from the 16th tee.
According to Mr. Corino, he and his brother allowed Defendants to hit their tee shots from the 16th tee before they resumed their own play on the 15th fairway. Mr. Corino and other witnesses stated that Mr. Duffy and each of his partners already hit one tee shot and Mr. Duffy was the last of the threesome to hit. After seeing Defendants’ threesome complete three shots, Mr. Corino prepared to hit his own ball on the 15th fairway. Unbeknownst to Mr. Corino, however, Mr. Duffy took a mulligan from the 16th tee. Mr. Duffy sliced his ball over the sparse tree barrier separating the 15th and 16th fairways, and the golf ball struck Mr. Corino in his right eye. Mr. Corino claims that he did not hear anyone yell “fore” or provide any other warning prior to the ball striking him. The errant shot broke the Plaintiff’s sunglasses, and the broken shards of glass severely lacerated his eye.
Plaintiff then sued the entire threesome under the theory that they were all negligent and reckless in both allowing Mr. Duffy to take a mulligan and for not warning bystanders of the errant tee shot.
However, New Jersey Supreme Court has long held that the duty of care applicable to participants in any form of recreational sports is to avoid the infliction of an injury caused by reckless or intentional conduct. Crawn v. Campo, 136 N.J. 494, 498-99 (1994). The majority of jurisdictions that have considered the issue of a person’s duty to exercise care to avoid injury when engaged in a sports activity have concluded that to constitute a tort, conduct must exceed the level of ordinary negligence. Most courts have determined that the appropriate duty players owe to one another is not to engage in conduct that is reckless or intentional. Id. at 499.
Therefore, a plaintiff is unable to recover on a cause of action based on ordinary negligence. The policy rationale for the heightened standard is to promote vigorous participation in athletic activities without undue concern for litigation stemming from such participation. Id. at 501.
The New Jersey Supreme Court specifically applied this heightened recklessness standard to golf in Schick v. Ferolito, 167 N.J. 7 (2001). In Schick, a golfer failed to announce a mulligan tee shot and hit another player in the eye. The Court, in overruling the Appellate Division determined that mere negligence is not enough as the plaintiff must prove reckless or intentional conduct. The court went on to explain that tort liability in golf arises when a player “intentionally commits an act of unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences.” Id. at 19. The Schick Court ultimately determined that a reasonable jury could find that the defendant’s decision to take an unannounced provisional shot “while perceiving plaintiff to be in the ‘line of fire’” constituted reckless conduct. Id. at 21.
Although Judge Vena would not rule on whether or not Mr. Duffy was reckless in hitting his wild mulligan without warning, Judge Vena noted that the plaintiff failed to cite any legal authority to support the contention that the reckless conduct of one player is attributable to all members of his party. Judge Vena explained that “Even if Mr. Chovanec and Mr. Schweizer agreed to allow Mr. Duffy to take a second tee shot, it is the state of mind and conduct of the actor that is essential to a finding of recklessness.”
Therefore, whether a player’s failure to warn his fellow golfers of an approaching errant shot constitutes recklessness is not a matter that New Jersey courts will have to address in the future as it is clear that only the actor is potentially liable for injuries caused by errant shots.
More importantly, based on the play of my golfing buddies, I better start making tee times in New Jersey to avoid tort liability.