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Roberta Rinaldo et al., Appellants,
v.
Arthur McGovern, Respondent, et al., Defendants.
Court of Appeals of New York
Argued October 16, 1991;
Decided November 21, 1991
CITE TITLE AS: Rinaldo v McGovern
SUMMARY
Appeal from an order of the Appellate Division of the
Supreme Court in the Fourth Judicial Department,
entered November 16, 1990, which, with two Justices
dissenting, affirmed an order of the Supreme Court
(Thomas F. McGowan, J.), entered in Erie County,
inter alia, granting a motion by defendant Arthur
McGovern for summary judgment and dismissing the
causes of action asserted against that defendant.
Rinaldo v McGovern, 167 AD2d 942, affirmed.
HEADNOTES
Negligence--Duty--Mishit Golf Ball--Failure to Warn
(1) In an action to recover for personal injuries sustained when defendant golfer accidentally missed the
fairway and instead sent the ball soaring off the golf
course onto an adjacent roadway where it struck the
windshield of plaintiffs' automobile, plaintiffs' cause
of action predicated upon a failure to warn was
properly dismissed on defendant's motion for summary judgment. Under the circumstances of this case,
a warning would have been all but futile. Even if defendant had shouted “fore”, the traditional golfer's
warning, it is unlikely that plaintiffs would have
heard, much less had the opportunity to act upon, the
shouted warning. Accordingly, the possibility that a
warning would have been effective to prevent the
accident was simply too remote to justify submission
of the case to the jury.
Negligence--Duty--Mishit Golf Ball--Lack of Due
Care
(2) In an action to recover for personal injuries sustained when defendant golfer accidentally missed the
fairway and instead sent the ball soaring off the golf
course onto an adjacent roadway where it struck the
windshield of plaintiffs' automobile, plaintiffs' negligence cause of action based on a purported lack of
due care was properly dismissed on defendant's motion for summary judgment. Ordinarily, a golfer may
not be held liable to individuals located entirely outside of the boundaries of a golf course who happen to
be hit by a stray, mishit ball. To provide an actionable theory of liability, a person injured by a mishit
golf ball must affirmatively show that the golfer
failed to exercise due care by adducing proof, for
example, that the golfer aimed so inaccurately as to
unreasonably increase the risk of harm. However, in
response to defendant's motion for summary judgment, plaintiffs submitted nothing more than the affidavit of a golf pro explaining that “slicing” is a
common problem among inexperienced and experienced golfers alike, and a deposition statement to the
effect that defendant had such a problem. At most,
this evidence, if ultimately proven to be true, would
establish only that if defendant teed off from the
eleventh hole, there was a risk that his golf ball
would travel off to the right in the direction of the
road rather than the direction of the fairway. Plaintiffs' evidence did not, *730 however, show that defendant's actions with respect to this risk were negligent.
TOTAL CLIENT SERVICE LIBRARY REFERENCES
Am Jur 2d, Amusements and Exhibitions, § 87; Negligence, §§ 383- 385.
NY Jur 2d, Negligence, §73.
ANNOTATION REFERENCES
Liability to one struck by golf ball. 53 ALR4th 282.
POINTS OF COUNSEL
John Humann for appellants.
I. Plaintiffs, as travelers on a public highway, are
entitled to be protected against acts on private premises which cause projectiles to come on to the public
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highway. (Gleason v Hillcrest Golf Course, 148 Misc
246;Jenks v McGranaghan, 30 NY2d 475;Nussbaum
v Lacopo, 27 NY2d 311;Noe v Park Country Club,
115 AD2d 230;Tinker v New York, Ontario & W. Ry.
Co., 157 NY 312;Town of Albion v Ryan, 201 App
Div 717;Palsgraf v Long Is. R. R. Co., 248 NY
339;Munsey v Webb, 231 US 150;Condran v Park &
Tilford, 213 NY 341;Robert v United States Shipping
Bd. Emergency Fleet Corp., 240 NY 474.)
II. Summary judgment is a drastic remedy and should
not be granted where there are issues of credibility or
even a color of a triable issue. (Sillman v Twentieth
Century-Fox Film Corp., 30 NY2d 395;Robinson v
Strong Mem. Hosp., 98 AD2d 976;Goldstein v County of Monroe, 77 AD2d 232;Ugarriza v Schmeider,
46 NY2d 471;Callari v Pellitieri, 130 AD2d 935.)
Chris G. Trapp for respondent.
I. No duty existed to appellant. (Gleason v Hillcrest
Golf Course, 148 Misc 246;Nussbaum v Lacopo, 27
NY2d 311;Jenks v McGranaghan, 30 NY2d 475;Noe
v Park Country Club, 115 AD2d 230;Traumann v
City of New York, 208 Misc 252.)
II. Solely a question of law was presented.
III. Summary judgment shall be granted where there
is no issue of fact sufficient to require a trial.
(Friends of Animals v Associated Fur Mfrs., 46
NY2d 1065;Zuckerman v City of New York, 49 NY2d
557;Fried v Bower & Gardner, 46 NY2d 765;Alvord
& Swift v Muller Constr. Co., 46 NY2d 276;Platzman
v American Totalisator Co., 45 NY2d 910;Andre v
Pomeroy, 35 NY2d 361.)*731
OPINION OF THE COURT
Titone, J.
(1, 2) The issue in this appeal is whether a golfer who
accidentally misses the fairway and instead sends the
ball soaring off the golf course onto an adjacent
roadway can be held liable in negligence for the resulting injury. Under the circumstances of this case,
we hold that the defendant golfer incurred no tort
liability for what amounted to nothing more than his
poorly hit tee shot.
The present action arises out of an accident in which
a golf ball driven by one of the two individual defendants soared off the golf course on which they
were playing, traveled through (or over) a screen of
trees and landed on an adjacent public road, where
plaintiffs happened to be driving their automobile.
The ball struck and shattered plaintiffs' windshield,
with the result that plaintiff Roberta Rinaldo was
injured. It is undisputed that both defendants, who
were teeing off at the eleventh hole of the golf
course, intended to drive their balls straight down the
fairway and not in the direction of the trees. However, each defendant “sliced” his ball, causing it to veer
off to the right. There is no evidence that either defendant was careless or guilty of anything other than
making an inept tee shot.
Plaintiffs commenced the present action charging the
individual defendants with negligence and failure to
warn. On defendants' motion for summary judgment,
the Supreme Court, Erie County, dismissed both
causes of action, holding that defendants had no duty
to warn plaintiffs of their impending tee shots and
that defendants' conduct in mishitting their golf balls
did not, without more, constitute actionable negligence. The Appellate Division affirmed, with two
Justices dissenting. This appeal ensued (see,CPLR
5601 [a]). Plaintiffs also sued the operator of the golf
course, Springville Country Club, Inc. By consent
order dated May 6, 1991, plaintiffs' appeal with respect to this defendant, as well as to the individual
defendant Donald Vogel, was discontinued. Accordingly, the only question before us now is the liability
of the other individual defendant, Arthur McGovern.
In general, a golfer preparing to drive a ball has no
duty to warn persons “not in the intended line of
flight on another tee or fairway” (Jenks v McGranaghan, 30 NY2d 475, 479;see generally, Annotation,
Liability to One Struck by Golf Ball, 53 ALR4th
282). Even more to the point, whatever the extent of
*732 a golfer's duty to other players in the immediate
vicinity on the golf course (see, Johnston v
Blanchard, 301 NY 599), a golfer ordinarily may not
be held liable to individuals located entirely outside
of the boundaries of the golf course who happen to be
hit by a stray, mishit ball (see, Nussbaum v Lacopo,
27 NY2d 311, 318).
In Nussbaum v Lacopo (supra), we considered the
liability of a golfer for failing to warn the occupant of
a nearby residence before driving his golf ball. In
rejecting the injured resident's claim, we noted that
the duty to warn “is imposed to prevent accidents”
and that no such duty should be imposed where “the
relationship between the failure to warn and [the]
plaintiff's injuries is tenuous” (id., at 318). We concluded that imposing a duty to warn would be futile
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under the circumstances presented in Nussbaum because “[l]iving so close to a golf course, plaintiff
would necessarily hear numerous warning shouts
each day ... [and, consequently,] could be expected to
ignore them” (id., at 318).
Plaintiffs contend that the analysis in Nussbaum is
inapplicable to this case because the Nussbaum Court
specifically stated that “one who chooses to reside on
property abutting a golf course is not entitled to the
same protection as the traveler on the public highway” (id., at 316 [emphasis supplied]), thereby suggesting that individuals in the latter class are entitled
to special protection. Although plaintiffs, who were
innocent travelers, hope to benefit from this distinction, their argument on this point is meritless. The
dictum on which plaintiffs rely appears in the section
of the Court's opinion dealing with the liability of the
golf course for nuisance and negligent design.Whatever its legal significance in that category
of cases, this dictum has no bearing on the viability
of a claim such as this one, which was brought
against an individual golfer on the basis of an alleged
failure to warn.
(1) Instead, the pertinent question here, as in Nussbaum, is whether a warning, if given, would have
been effective in preventing the accident. We conclude that, under the circumstances of this case, a
warning would have been all but futile, albeit for a
somewhat different reason than in Nussbaum.Even if
defendant had shouted “fore”, the traditional golfer's
warning, it is unlikely that plaintiffs, who were driving in a vehicle on a nearby roadway, would have
heard, much less had the opportunity to act upon, the
shouted warning. Accordingly, *733 just as was true
in Nussbaum, the possibility that a warning would
have been effective here to prevent the accident was
simply too “remote” to justify submission of the case
to the jury (id., at 318).
Plaintiffs' cause of action based on the claimed negligence of the defendant golfer is similarly untenable.
Although the object of the game of golf is to drive the
ball as cleanly and directly as possible toward its
ultimate intended goal (the hole), the possibility that
the ball will fly off in another direction is a risk inherent in the game. Contrary to the view of the dissenters below, the presence of such a risk does not,
by itself, import tort liability (see,167 AD2d 942, 944
[Callahan, J. P., and Balio, J., dissenting]). The es-
sence of tort liability is the failure to take reasonable
steps, where possible, to minimize the chance of
harm. Thus, to establish liability in tort, there must be
both the existence of a recognizable risk and some
basis for concluding that the harm flowing from the
consummation of that risk was reasonably preventable.
Since “ 'even the best professional golfers cannot
avoid an occasional ”hook “ or ”slice“ ' ” (Jenks v
McGranaghan, supra, at 479, quoting Nussbaum v
Lacopo, supra, at 319), it cannot be said that the risk
of a mishit golf ball is a fully preventable occurrence.
To the contrary, even with the utmost concentration
and the “tedious preparation” that often accompanies
a golfer's shot (see, Nussbaum v Lacopo, supra, at
319), there is no guarantee that the ball will be lofted
onto the correct path. For that reason, we have held
that the mere fact that a golf ball did not travel in the
intended direction does not establish a viable negligence claim (Jenks v McGranaghan, supra, at 479).
To provide an actionable theory of liability, a person
injured by a mishit golf ball must affirmatively show
that the golfer failed to exercise due care by adducing
proof, for example, that the golfer “aimed so inaccurately as to unreasonably increase the risk of harm”
(Nussbaum v Lacopo, supra, at 319).
(2) No such proof was adduced here. In response to
defendants' motion for summary judgment, plaintiffs
submitted nothing more than the affidavit of a golf
pro explaining that “slicing” is a common problem
among inexperienced and experienced golfers alike
and a deposition statement by defendant Vogel to the
effect that his codefendant, McGovern, had such a
problem. At most, this evidence, if ultimately proven
to be true, would establish only what is obvious--that
if one or *734 both defendants teed off from the
eleventh hole, there was a risk that one or both of
their golf balls would travel off to the right in the
direction of the road rather than the direction of the
fairway. Plaintiffs' evidence did not, however, support the other element of the cause of action essential
to plaintiffs' recovery, i.e., that defendant's actions
with respect to this risk were negligent. Hence, plaintiffs' cause of action based on defendant's purported
lack of due care was properly dismissed.
Accordingly, the order of the Appellate Division
should be affirmed, with costs.
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587 N.E.2d 264
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Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur.
Order affirmed, with costs. *735
Copr. (c) 2009, Secretary of State, State of New York
N.Y. 1991.
RINALDO v McGOVERN
78 N.Y.2d 729
END OF DOCUMENT
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