Legal Research

Fore II

By Mark Lewis

Here in deepest, darkest January when most of Canada is seized by ice and snow those of us who choose to spoil a good walk have relegated our clubs to a corner for what seems like far too long. It is somewhat heartening to have a court decision which allows us to cast our minds to fairways and greens. A case from the New York Court of Appeals in late December 2010 gives us pause to consider the unspoken risks that we assume on the fairways. In Anand v. Kapoor it was determined that “…being hit without warning by a ‘shanked’ shot while one searches for one’s own ball — reflects a commonly appreciated risk of golf.”

In this instance Anand had hit his ball ahead of Kapoor and had reached his ball while Kapoor, having hit his ball shorter and in the rough, found his ball and proceeded to hit it. When he did so he shanked it (a dirty word in the golfer’s lexicon) and the ball hit Anand in the eye causing permanent damage and loss. The crux of the case was in determining the degree of liability that Kapoor had for his shot. The case detailed how Kapoor failed to yell “fore” (although here it seems that the court might not fully appreciate that “fore” comes after a shot has been shanked, not before)

While golf is one of the quieter pursuits and a decidedly non-contact activity legal proceedings deriving from activity on a golf course are fairly common. To review, we have a definition of a Happy Gilmour Shot and the NYCA established that being hit with a “…shanked shot…reflects a commonly appreciated risk of golf” which seems to echo previous Canadian caselaw that established ?an unexpected hook of a shot by a player who usually sliced the ball was not a basis for liability for hitting another player, as it was not foreseeable that his ball would go where it did.? Despite the assumption of risk implied in walking onto a golf course, I predict that this will not impede a single golfer from hitting the course once our icy temperatures recede but perhaps it should cause one to pause to consider the proclivity of one’s playing partner to hook or slice.

Full post as published by Slaw.ca on January 24, 2011 (boomark / email).