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The problems of not shouting "fore"

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 injury lawsuit.

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 danger.

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, James DeMarzo.

"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," DeMarzo said.

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.

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