Yelling "fore" while playing golf is
not only a courtesy, it may be a legal necessity if you are taking a second shot,
known as a "mulligan," and your golf partners are not aware of it.
Otherwise, you run the risk of a personal
So said a New Jersey appeals court on
Wednesday, departing from standard sports liability law to conclude that hitting
a golf ball without warning is a recklessly dangerous act.
The case was brought by a Livingston
man, Jeffrey Schick, who was struck in the face by a golf ball while playing
at East Orange Golf Course in 1994.
Schick filed a lawsuit against John
Ferolito of Short Hills claiming Ferolito's mulligan shot was made without proper
warning and that Schick could not have been reasonably expected to foresee the
This point about foreseeing the danger
lies at the heart of court rulings regarding sports injuries. Generally, if the
risk of an injury is foreseeable, the courts have dismissed lawsuits.
Ferolito is one of the founders of the
AriZona Ice Tea beverage company of Lake Success, N.Y. Both he and Schick were
new to the game of golf when the accident occurred, according to Ferolito's lawyer,
"He felt terrible. There is no dispute
that his ball hit the guy," DeMarzo said. "But it is a different story when someone
tries to sue."
The primary sports injury case in New
Jersey came in 1994 when the state Supreme Court ruled that a catcher in a softball
game who was hurt during a home-plate collision had no basis to sue because such
collisions were a foreseeable part of the game.
DeMarzo, who argued the 1994 case, said
the key consideration is reckless behavior, an act which is not only risky but
is also entirely outside the context of the game.
A clear example is in boxing, where
the boxer must expect to be punched by his opponent but cannot be reasonably
expected to foresee a kick. Thus, there is no basis to sue for any punching injury,
but a kick injury might create liability.
In his lawsuit, Schick claims he and
the others in his foursome, including Ferolito, had all taken their tee shots
on the 16th hole when Schick moved toward his golf cart to drive up toward the
fairway. Schick claims Ferolito then took a second shot -- a mulligan -- without
telling anybody. The ball veered off line and struck Schick in the face, breaking
bones that required surgery to repair.
These facts are in dispute. DeMarzo
said Ferolito was not taking a mulligan at all, and was hitting his first shot.
He also said Schick could not have been surprised. "Obviously he was looking
at him. The ball could not hit you in the face if you were not looking at him,"
Schick's lawyer, Richard Chisolm, did
not return a phone message left at his office.
But Wednesday's ruling concerned not
the facts of the case, which a jury must decide, but only a preliminary motion
on whether the case should have been accepted in the first place. A trial judge
two years ago threw the case out. Wednesday's ruling by a three-judge appellate
panel reversed that decision and said the case should proceed to trial.
"We conclude that hitting an unannounced
and unexpected mulligan from the tee after all members of the foursome have teed
off creates such an unanticipated risk to the other members of the foursome,
from which they cannot protect themselves, that it cannot be considered an inherent
or integral part of the game," Judge Leonard Arnold said.