THE LEGAL HAZARDS OF GOLF

©The Rough Notes Company, Inc.

Editor’s Note: We came across this gem of an article in our Rough Notes Magazine Archives. Specifically,
from the May ’39 issue. 70 years later, it still provides insight to considerations that should be pointed out to
your clients who are golfers. We have largely preserved the original style and content, so keep this in mind
as you enjoy (and hopefully use) the article’s insights.
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The game of golf has been played for more than five hundred years. Originating with the Dutch, and
probably by them introduced into Scotland, by the middle of the fifteenth century its popularity had become
so great as to interfere with more important pursuits, making it necessary for the Scottish parliament to
prohibit its practice by imposing certain penalties upon those who persisted in the so-called “unprofitable
sport.” But, despite the objections of those who considered the game unworthy of the time and expense
involved, it gained such favor with the monarchs themselves that it became known as the game of royalty,
and has since become quite wide-spread.
For a custom to exist over a long period of years, whether it take the form of a social affair, an industrial
operation or a game of sport, it must of necessity undergo many changes, and golf has proven no
exception. It was originally played with a ball consisting of feathers covered with leather, and the clubs, few
in number, were crude wooden affairs. Today the clubs are made of iron, steel and wood, and may become
destructive objects if not used with care; the balls no longer are soft and harmless, but are manufactured of
material that enable them, when struck, to assume the nature of dangerous missiles.
During the course of its evolution the game has acquired certain well-established rules and customs, the
purpose of which are to enable the players to derive greater pleasure, and to ensure their better safety,
from its participation. One has a right to rely upon the fact that others will comply with the ethics of the
game and observe the rules and customs that have been adopted. The dictates of good sportsmanship
and, in fact, the law itself, impose upon those engaged in the prosecution of any activity, whether it consists
or work or play, an obligation to use ordinary care to perform it in such a manner as not to endanger other
persons, and it has been said that the failure to observe, for the protection of the interests of such other
persons, that degree of care, precaution and vigilance which the circumstances justly demand, constitutes
negligence and may be made the basis for legal action to recover compensatory damages in the event of
injury.
A player is not always able to control either the direction or destination of a golf ball for the reason that the
slightest imperfection in his stroke may cause it to travel at an angle from its intended line of flight, or a lack
of proper judgment may alter its ultimate halting place. Therefore, a cardinal rule of the game is that, before
addressing the ball, one should, in some manner, warn those persons who are in the direction in which it is
to be driven or in which it might be carried if driven inaccurately.

First Judgment for a Caddy

A New Jersey court holds the distinction of being the first to rule in favor of a caddy that was injured when a
player, as the jury found, failed to give such warning. He had sliced his original drive from the fourth tee and
the course of his second shot was over the edge of the third green where the caddy in question had just
handed his player a driver and was walking toward a bunker on the fourth fairway. Despite the offending
player’s testimony that he shouted “fore” before making his second shot, all the witnesses testified they
heard no warning until the instant the caddy was struck.
The court stated that, with players and caddies out in front of him and with the knowledge that his ball might
deviate from its intended course, the player was under a duty to use reasonable care before making his
shot to observe whether there were any persons in the general direction of his drive and, if so, to see that
they were adequately warned: furthermore, the caddy had a right to expect that the player would not
endanger him by driving in his direction without giving some audible warning in time for him to protect
himself. If no such timely warning was given, or was given in such a manner that the caddy did not hear it
and would not have heard it by the exercise of reasonable care on his part, the player was guilty of a
breach of his duty.
“Fore” When More Than Four
In a New York case, where a caddy lost an eye as a result of being struck by a ball, the rule enunciated by
the court was the same as that in the above case. A member of a seven some dubbed his drive into the
rough a few feet from the tee and his second shot, made with a driver, struck a caddy who was standing in
front of him. The only warning was that shouted by the player’s own caddy at the time the ball was struck.
The court, in making an award of $10,000, stated that, while it is customary to play in foursomes or less, it
is not necessarily negligent to play in larger groups; but the more players engaged in the game, the more
likelihood there is of injury and the greater the degree of care that must be exercised. Inasmuch as the
injured caddy was entitled to that degree of care which requires a person about to play his ball to give a
timely and adequate warning to anyone in the general direction of his drive, the player in this instance,
before he took his second shot, should have given some audible admonition before hitting the ball. The fact
that another person cried out at the time the ball was struck did not condone his dereliction in this respect.

Take Care Of Your Caddy

In another New York case, a caddy and his player were following a threesome who had reached a tee and
were preparing to make their drives. In order that he might follow his own player’s ball when it came his
time to drive from the same tee, the caddy took a position on an adjoining fairway near that being played.
His attention for the moment was fixed elsewhere and he did not observe the last member of the
threesome drive. The ball swerved from its intended course; no warning was given until it was in flight; and
he was struck over the eye. A jury concluded that the player had violated his duty to use the care of a
reasonably prudent person who would have given timely warning to enable those likely to be injured to
protect them.

Negligence Rather Than Lack of Skill

It must not be assumed that, because a ball is struck in such a manner as to cause it to travel in an
unexpected direction, one is guilty of negligence for not striking it properly. Even the best players are not
always able to control the course it may take and the law does not require the impossible. Liability is
predicated upon the doing of something that should not have been done, or the failure to do something that
could and should have been done.
For instance, in a recent Missouri case, a player on his second shot hooked his ball and stuck another
player’s caddy that was twelve to fifteen feet to his left and about forty-vive yards in front of him. There was
conflicting testimony regarding a warning, although the caddy’s attention was distracted and he heard no
warning until the instant he was struck. The court pointed out that the player’s negligence did not consist of
his striking the ball in such manner as to cause it to hook, but in his failure to give a timely and adequate
warning to one who was in the direction in which the ball was intended to be driven or in which it might be
carried if struck inaccurately.

Negligence of Host a Factor

Although, in a New Jersey case where a person visiting a golf course was struck by an unidentified player’s
ball and the host was absolved of responsibility for the injury suffered by his guest, it is interesting to
observe that, under certain circumstances, he may become liable for damages resulting from his guest’s
shortcomings. A member was playing in a foursome on a course in Missouri when his guest’s ball struck
and injured the caddy of another player. Suit was instituted against the host based upon his alleged
negligence in failing to give warning to the caddy of the danger to which he was exposed.
A recovery was allowed and the appellate court, in affirming the judgment, stated that, where a member of
a club knew that his guest had been shooting very poorly and that any player was apt to hook the ball when
it was struck, and where he knew that his guest was about to make a shot while a person was in a position
that would make him liable to danger if the ball were driven inaccurately, it became the member’s duty to
warn such person of the danger, and the more so when, as in this case, his youth was taken into
consideration.

Was There A Breach of Duty?

That a friendly game may terminate in a bitter legal contest is shown by a Virginia case. A member of a
twosome topped his drive from the third tee and his second shot was not much better since it landed in the
rough near the beginning of a dog leg, a few feet beyond his companion’s drive and slightly to his right. He
proceeded to the place where the ball was last seen and, unaware of his companion’s intention to make his
second shot, he arose from a stooping position in the rough and was struck in the eye. There was a verdict
for $5,000 and, in seeking to have it set aside, it was contended that there was no breach of a duty to the
injured player; that the latter was guilty of contributory negligence; and that the injury was the result of an
assumed risk.
The court ruled, however, that a warning should have been given and a failure to do so constituted
negligence; that the question of contributory negligence was for the jury to answer, which, by their verdict,
they did adversely to the appellant; and that one does not legally assume the risk of being hit by a fellow
player’s ball.

Injury Inflicted by Club

Not all accidents, however, result from driven balls. There is on record a case where a player was
demonstrating a stroke to her companion and on her “follow through” she allowed her club to strike a
nearby spectator. She was held responsible for the injury that was suffered because she admitted she did
not look when she made the stroke, and a jury, having determined that her conduct did not measure up to
that of a reasonable person in the same circumstances, the court was not at liberty to set the verdict aside.
Accidents can occur without the elements of actionable negligence being present. All that a player is
required to do is exercise that precaution which the prevailing circumstances demand, and he is not
responsible where injury results from an unanticipated occurrence if he has been reasonably prudent in
ascertaining that he can act with safety. There would be no liability, for instance, if a driven ball were to
strike a tree, or other object, and on its rebound injure a person standing back of the player. Ordinarily there
is no duty to warn those not in the intended line of play.

Distance Makes A Difference

In an early Scottish case a player was standing near the edge of the fairway watching his opponent’s
approach shot to the third green. On another part of the course was a second group and, while driving
down a clear and open fairway, a member’s ball was sliced to the right and struck the first mentioned
player. In denying a recover, the court stated that a full shot down an open course, when the nearest
person in front was within forty yards away and well out of the direction, did not constitute negligence. The
stroke might not have been correctly played, as was indeed evidenced; by the slice on the ball, but that
could not create legal liability or of itself give a right to damages to a person struck.

So Does Distance and Direction

This decision was used as a basis for determining that no liability existed in a Pennsylvania case where a
player was holing out on the sixth green, which was 100 feet back of the seventh tee and to its left 120 feet.
In making his drive from the tee, another player hit his ball at a sharp angle to the left and caused it to strike
the first player in the mouth. No warning was given until someone saw that the ball was traveling in the
wrong direction. It was held that, inasmuch as the injured person was not where anyone could reasonably
believe that he was in danger of being struck by a ball driven from the seventh tee, there was no duty to
warn him of the intended drive. No rule or custom of the game was disregarded and therefore it could not
be said that anyone was at fault.

Negligence of Injured Person

In none of the reported cases has a recovery been denied because of contributory negligence on the part
of the injured person, despite the rule that his failure to use reasonable care for his own safety usually is a
good defense. Verdicts of no liability are generally justified on the ground that no breach of duty has been
proven. Thus, in a Kentucky case, a caddy was stuck by a hooked ball while standing in the rough to the
left of the third fairway waiting for the players to make their drives. The players and caddies at the time of
the accident were in plain view and were observing each other’s movements. It was held that there was no
duty in this instance to warn the caddy of what he already knew; namely, that a player was about to drive,
inasmuch as warning is never required to be given to persons aware of potentially dangerous movements
about to be made.
The same view has been expressed by a New York court, which observed that a caddy is charged with the
duty to watch his player drive, to watch the flight of his ball, and to mark it when it comes to rest. A player is
justified in acting upon the assumption that caddy is doing that for which he is being paid and, therefore,
there is no occasion to warn him.
Liability of Golf Club
Clubs, as well as individual players, may be held responsible for injuries resulting from alleged acts of
negligence. Here are several instances where legal action was taken against course owners rather than
individual golfers:
Situation One - On an English course the thirteenth fairway was parallel with a public highway over
which there was considerable traffic. A player sliced a ball, which struck a cab driven on the highway.
Both the club and the player were held responsible, the former on the theory that the proximity of the
course to the highway and the consequent frequency with which driven balls fell therein rendered that
particular part of the course a legal nuisance; and the player on the theory he was negligent in driving
while there was someone in the highway who might be injured by a misdirected drive.
Situation Two - There was an almost identical case in New York where a course was contiguous to a
public highway over which a girl and a boy were traveling in an automobile. A player, in making his
second shot from the fairway, sliced his ball and it veered to the right, cleared a six-foot fence and
struck the windshield of the automobile. Liability for the resulting injuries was determined against both
the player and the club – the player for negligence in failing to use the degree of care required in the
particular circumstances, he being accountable for the natural and probable consequences of his act in
driving the ball; the club fro creating and permitting the dangerous conditions to exist, as well as for
failure to use reasonable care to prevent injury to a person lawfully upon the highway.
Situation Three – A club’s liability is not limited to those who are upon adjacent highways. In a North
Carolina case involving a person who was playing at the time he was injured. A threesome back of him
persisted in driving off at each tee before he and his partner were able to get more than a few yards
away and such was the case when he was stuck. He had proceeded about fifteen feet after making his
drive from the sixteenth tee and, seeing a member of the threesome about to drive and appreciating
his position of danger, he immediately walked to the edge of the rough. There was conflicting
testimony regarding a warning but, aside from this feature of the case, it was proven that the club had
promulgated certain rules to the effect that players first using the course were entitled to make their
second shots before the succeeding players were permitted to drive.
Employees, whose duty it was to insist upon a compliance with there precautionary measures, were
not present at the time of the injury and, of course, there was a failure to enforce the rules of safety
which had been prescribed. The court stated that, manifestly, it was the duty of the club to exercise
ordinary care in promulgating reasonable rules for the protection of persons rightfully using the course
and, furthermore, to exercise ordinary care in seeing that they were enforced. Since they were openly
violated and the club, through its agents, made no effort to caution offending players, or otherwise to
discharge the duties imposed upon it, the verdict in favor of the injured person was justified.

Negligence of Starter
A similar case involved the owner of a public course in Tennessee. To facilitate the progress of play, he
engaged a starter to inform the players when and under what circumstances they were to drive off the
first tee. One player was directed to drive at a time when a member of the preceding foursome was on
the fairway a short distance away, within full view and in a position where he was likely to be reached
by a driven ball. As a result of the premature drive he was struck in the eye and suffered serious injury.
It was held that, inasmuch as the starter was the agent of the owner, the latter was responsible for his
act of directing the untimely drive; that the injured person had a right to rely upon the enforcement of
rules prescribed; by the owner, therefore, he did not assume the risk of such an accident; and he was
warranted in proceeding against the owner rather than the player who drove the ball.
It is interesting to note that, in those jurisdictions where it has been necessary to pass upon the
employment status of caddies, the courts have held them to be employees not of the players for whom
they actually work, but of the club itself. The decisions are based upon the principle that the employer
is the person who has the power to select, supervise and discharge. Thus a caddy who is selected by
a caddy master and assigned by him to the various players, even if payment for his services is made
by the latter, is an employee of the club within the meaning of the Workmen’s Compensation Act, and if
his injury arises out of and during the course of his employment, he is entitled to receive
compensation.
The significance of this rule of law lies chiefly in the fact that a golfer, with respect to injuries to a caddy,
stands a double chance of being called upon to pay for the damages resulting from his alleged
 negligence. Not only does the injured person or his parents, if he is a minor, have a right of action
against him but also, if the right is not exercised, the laws of many states grant to the club or its
insurance carrier the privilege of instituting subrogation proceedings in the event compensation or
medical payments have been made. While there may be some compunction on the part of a caddy to
sue the player for whom he works, or on the part of the club to proceed against one of its members or
guests, the compensation carrier is usually not so circumscribed and may be depended upon to
secure reimbursement wherever it is possible to do so.

©The Rough Notes Company, Inc.

For more information on this topic, please contact:

Timothy P. O’Brien, Director of Private Client Services
COOK, HALL & HYDE, INC.
Offices in East Hampton and Melville NY and Fair Lawn, NJ
Phone: 631-329-7246 or e mail: tobrien@chhins.com