SHIN V. AHN APPLIES THE PRIMARY
ASSUMPTION OF RISK DOCTRINE TO
INJURIES SUSTAINED BY GOLFERS
IN THE SAME GROUP: NEGLIGENCE
GOES UNPUNISHED
Evan Steele Fensterstock*
Abstract: Mark Twain once said: “Golf is a good walk spoiled.” Twain was
referring to the frustration golfers often feel on the golf course, and the
explicit terms that inevitably erupt from players’ mouths due to that
aggravation. Now, if a normal day of golf spoils a pleasant walk, what would
Twain say about a golf outing resulting in permanent and serious head
injuries? Further, how would he feel if the person who negligently caused
this damage faced zero liability?
This Comment addresses the Supreme Court of California’s decision in
Shin v. Ahn to allow the defendant (“Ahn”) to assert the primary assumption
of risk doctrine as an all-or-nothing defense to his negligent actions. As a
result, the plaintiff (“Shin”) suffered severe and long-lasting damage to his
head, and the Supreme Court of California essentially allowed pure
negligence to go unpunished.
This Comment looks at how the assumption of risk doctrine applies to
sports law, and suggests that the sport of golf deserves its own analysis. In an
effort to prevent a flood of sports related litigation, courts have stipulated
* Candidate for Juris Doctor, New England School of Law (2009). B.A., Government &
Legal Studies, Spanish, Bowdoin College (2006). During the spring semester 2008, Mr.
Fensterstock served as a judicial intern for Judge Charles T. Spurlock at the Suffolk
Superior Court in Massachusetts. Mr. Fensterstock also worked as a judicial intern for the
Honorable Raya S. Dreben of the Massachusetts Appeals Court during the summer 2008.
The author may be contacted at efenster@gmail.com. I would like to thank my dad, Blair C.
Fensterstock for referring me to this case as well as my mom, Joyce N. Fensterstock for her
endless amount of support.
87
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that a plaintiff can only sue a defendant who caused the plaintiff injury if the
defendant acted intentionally or recklessly. This is the standard that the
Supreme Court of California applied in Shin. The Shin court reasoned that
imposing liability on a golfer’s negligent behavior would fundamentally alter
the nature of the sport and would reduce participation. However, the Shin
court analogizes contact sports, such as football, with non-contact sports,
such as golf. They do so by citing to the well-known case of Knight v.
Jewett, where a defendant severely injured the plaintiffs hand by stepping on
it in a touch football game, and precluded the plaintiff from suing for
negligent conduct. The Knight court allowed the defendant to assert the
primary assumption of risk doctrine as a defense and entered judgment in
favor of the defendant. The ultimate result of the holding in Shin is that an
injured golfer cannot recover damages from another golfer whose negligent
conduct caused him injury, despite the fact that both golfers were part of the
same group and the defendant failed to deliver an adequate warning. (For
example, the Rules of Golf require a golfer who hits an errant golf shot to
scream out the warning, “Fore!” This is meant to alert players to take cover.
When a player fails to deliver this promise, he has increased the risk of
injury to his fellow golfers beyond that which is inherent in the sport.)
In contrast with the decision in Shin, many courts determine that the
assumption of risk doctrine does not bar the plaintiff from recovering for
injuries resulting from negligent conduct of members of the same golf group.
Some courts even refuse to apply the assumption of risk doctrine at all in
cases involving negligent conduct. With respect to golfers in the same group,
traditional tort principles should apply and liability should be apportioned in
accordance with comparative fault principles. This Comment concludes that
the California Supreme Court should apply the secondary implied
assumption of risk doctrine, follow comparative fault principles, and
reinforce the cornerstones of fairness and moral responsibility—both of
which prevent future harm and create accountability for unlawful behavior.
INTRODUCTION
Modern commentators describe the “assumption of risk doctrine” as
one of the “three wicked sisters” that prohibited plaintiffs in the early
nineteenth century from recovering for injuries sustained at their
workplaces. 1 Due to the doctrine’s harsh consequences, many jurisdictions,
including the Supreme Court of California, abolished the doctrine as an
absolute defense and established a comparative fault system. 2
1. Ford v. Gouin, 266 Cal. Rptr. 870, 875 (Cal. Ct. App. 1990). The “three wicked
sisters” included the doctrines of contributory negligence, the fellow-servant rule, and
assumption of risk. Id.
2. See 1 ARTHUR BEST, COMPARATIVE NEGLIGENCE: LAW AND PRACTICE §
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SHIN V. AHN: NEGLIGENCE GOES UNPUNISHED
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Nonetheless, in 2007, the Supreme Court of California surprisingly
applied the assumption of risk doctrine as an absolute defense in the case of
Shin v. Ahn, 3 consequently allowing pure negligence to go unpunished. 4
The ultimate result of this holding is that an injured golfer cannot recover
damages from another golfer whose negligent conduct caused him injury;
despite the fact that both golfers were part of the same group, the defendant
failed to deliver any warning, imposing liability would not fundamentally
alter the nature of the sport or decrease participation, and holding golfers
accountable for pure negligence would not result in an influx of litigation. 5
In contrast with the decision in Shin, many courts determine that the
assumption of risk doctrine does not bar the plaintiff from recovering for
injuries resulting from negligent conduct of members of the same golf
group. 6 Some courts even refuse to apply the assumption of risk doctrine at
all in cases involving negligent conduct. 7 Courts often apply the doctrine in
the context of sports to protect the fundamental nature of the activity and
encourage participation. 8 Nevertheless, the doctrine should not be used as
an all-or-nothing defense. 9 Instead, with respect to golfers in the same
group, traditional tort principles should apply and liability should be
apportioned in accordance with comparative fault principles. 10
Part I of this Comment will explain and differentiate between the
primary assumption of risk doctrine and the secondary assumption of risk
doctrine, as well as discuss how the primary assumption of risk doctrine is
applied to sports. 11 Part II will discuss the facts of Shin v. Ahn and the
Supreme Court of California’s holding that the primary assumption of risk
doctrine applies to golfers playing in the same group. 12 Part III will explore
how other jurisdictions have interpreted the assumption of risk doctrine and
4.30(2)(b)(ii) (LexisNexis 2008) (1984). The states abolishing the implied assumption of
risk doctrine include Arkansas, California, Georgia, Nebraska, Rhode Island, and South
Dakota. See id.; Li v. Yellow Cab Co., 532 P.2d 1226, 1232 & n.6 (Cal. 1975).
3. Shin v. Ahn, 165 P.3d 581, 582 (Cal. 2007).
4. See id. at 583.
5. Id. at 582; see infra Part IV.
6. See infra Part III.A.
7. See BEST, supra note 2, § 4.30(2)(b)(ii); Li, 532 P.2d at 1243 (abolishing the
assumption of the risk doctrine because it is a form of contributory negligence); see also
supra text accompanying note 2 (stating California’s reasoning for abolishing the
assumption of the risk doctrine).
8. See, e.g., Knight v. Jewett, 834 P.2d 696, 708 (Cal. 1992).
9. See id.; Li, 532 P.2d at 1243.
10. See Shin, 165 P.3d at 593 (Kennard, J., concurring and dissenting); Li, 532 P.2d at
1243.
11. See infra Part I.
12. See infra Part II.
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how they have applied it to golf. 13 Part IV will analyze the Supreme Court
of California’s application of the primary assumption of risk doctrine in
Shin and describe its flawed reasoning. 14 Part V will conclude that
secondary assumption of risk should be applied to golf and that an injured
golfer should be able to recover from another member of his group for
acting negligently. 15
I. Assumption of Risk Doctrine: Torts and Sports
A. The Common Law Assumption of Risk Doctrine
Under traditional common law principles, a plaintiff assumes the risk
of certain harm when the plaintiff understands and appreciates the common
risks involved. 16 When a plaintiff openly agrees, either orally or through a
written contract, that he will not hold a defendant legally accountable for
certain harms, a plaintiff “expressly” assumes the risk of those harms. 17 On
the other hand, a plaintiff may “impliedly” assume the risk of specific harm
through his conduct. 18
In addition to express and implied assumption of risk, the doctrine can
be broken down into primary implied assumption of risk and secondary
implied assumption of risk. 19 The term “primary assumption of risk” means
“the defendant was not negligent, either because he owed no duty to the
plaintiff in the first instance, or because he did not breach the duty owed.” 20
The primary assumption of risk defense constitutes a complete bar to
recovery 21 and functions as a limitation on the defendant’s duty.22
Essentially, when a plaintiff implicitly agrees to face a commonly known
and inherently dangerous aspect of an activity, and that aspect harms the
13.
14.
15.
16.
See infra Part III.
See infra Part IV.
See infra Part V.
Prescott v. Ralph’s Grocery Co., 265 P.2d 904, 906 (Cal. 1954); RESTATEMENT
(SECOND) OF TORTS: ASSUMPTION OF RISK § 496A (1965).
17. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 68, at
482-84 (5th ed. 1984).
18. Id. at 481.
19. See Mark W. Milam, Comment, Assumption of Risk in Tennessee Subsequent to the
Adoption of Comparative Fault: Perez v. McConkey, 60 TENN. L. REV. 1007, 101214 (1993) (explaining the difference between primary and secondary implied assumption of
risk).
20. Id.; Blackburn v. Dorta, 348 So. 2d 287, 290 (Fla. 1977).
21. See Scott Giesler, Comment, The Uncertain Future of Assumption of Risk in
California, 28 LOY. L.A. L. REV. 1495, 1495-96 (1995).
22. See Shin v. Ahn, 165 P.3d 581, 590-91 (Cal. 2007).
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SHIN V. AHN: NEGLIGENCE GOES UNPUNISHED
91
plaintiff, then a court cannot find that the defendant has committed a
wrong. 23
In contrast, “secondary assumption of risk” does not relate to the
question of duty, but rather focuses on the distribution of damages. 24 If a
court determines that a defendant owes a duty to a plaintiff and breaches
his duty, then the court must calculate the proper apportionment of liability
to each party. 25 This principle is similar to California’s comparative
negligence approach, which also “assesses liability in proportion to
fault.” 26
B. Primary Assumption of Risk Doctrine and Sports
According to well-established case law, people have a duty to use due
care to avoid causing harm to others and can be held liable for “careless
conduct” causing injuries. 27 In sports, however, conduct that courts might
ordinarily interpret as dangerous may be integral to the sport. 28 For
example, football players assume the risk of being tackled, as it is a
fundamental aspect of the game. 29 However, if one person tackles another
person outside of the context of football, or other sports involving tackling,
a court would likely hold a defendant liable for assault and battery. 30
Although athletes generally have no legal duty to protect their coparticipants from risks that are inherent in a particular sport, they do have a
duty to refrain from increasing the risks to other players above those that
are ordinary in the sport. 31 To expound, if a football player wearing metal
padding tackles another player, the assumption of risk doctrine would not
protect the defendant, as metal padding is not integral to football and
increases the risk of harm to other players. 32
23. See WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS 450, 459 (3d ed. 1964);
Carol A. Mutter, Rethinking Assumption of Risk After the Adoption of Comparative Fault,
23 MEMPHIS ST. U. L. REV. 85, 86 (1992).
24. See Shin, 165 P.3d at 591.
25. See id.
26. See id.; Li v. Yellow Cab Co., 532 P.2d 1226, 1230 (Cal. 1975).
27. Knight v. Jewett, 834 P.2d 696, 708 (Cal. 1992).
28. See id.
29. See Timothy B. Fitzgerald, Comment, The “Inherent Risk” Doctrine, Amateur
Coaching Negligence, and the Goal of Loss Avoidance, 99 NW. U. L. REV. 889, 892 (2005)
(describing some of the “open and obvious” dangers in competitive sports).
30. See Ray Yasser, In the Heat of Competition: Tort Liability of One Participant to
Another; Why Can’t Participants Be Required to Be Reasonable?, 5 SETON HALL J. SPORT
L. 253, 256 (1995) (explaining how an intentional act causing injury is assault and battery
“for which recovery may be had”).
31. See Knight, 834 P.2d at 708.
32. See id.; see also Paul J. Criscuolo, Torts – Primary Assumption of Risk – Risks
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II. Shin v. Ahn
A. Facts and Procedural History
Plaintiff Shin, Defendant Ahn, and Jeffrey Frost were playing golf at
the Rancho Park Golf Course in Los Angeles. 33 Ahn putted out first on the
twelfth hole and began walking toward the thirteenth tee box. 34 Shin and
Frost finished putting on the twelfth green 35 and followed Ahn to the next
hole. 36 Frost got into his golf cart and drove along the cart path to the
thirteenth tee box, and Shin walked through the trees and up a hill toward
the same tee box. 37 Ahn had already reached the tee box, while Shin
stopped in front and to the left of Ahn to have a drink of water and check
his phone messages. 38
Standing on the tee box, Ahn looked up at the thirteenth hole, then
back down at his ball to focus before he took his shot. 39 Ahn took his swing
and “pulled” his shot to the left, hitting Shin in the temple. 40 At the time of
the accident, Shin stood approximately twenty-five to thirty-five feet away
from Ahn, and forty to forty-five degrees to the left of the ball’s desired
path. 41 Shin suffered “disabling, serious, and permanent” injuries. 42
Shin subsequently filed a lawsuit against Ahn under traditional
negligence principles. 43 One of the primary factual issues in dispute at the
Resulting From Conduct, the Prohibition of Which Would Neither Deter Vigorous Sport
Participation Nor Otherwise Fundamentally Alter the Nature of That Sport, Are Not
Considered Inherent Within a Sport, 5 SETON HALL J. SPORT L. 679, 684 (1995) (explaining
how the “consumption of alcoholic beverages” while participating in skiing increases the
“risk of collision beyond” that which is inherent in skiing).
33. Shin v. Ahn, 165 P.3d 581, 583 (Cal. 2007).
34. Id. at 583. A tee box, or “teeing ground,” is the starting place from which a hole is
played. UNITED STATES GOLF ASSOCIATION, THE RULES OF GOLF § 2, 16-17 (2007),
available at http://www.worldgolf.com/wglibrary/reference/dictionary/tpage.html (defining
golf terms). Hitting a shot from the tee box is called “teeing off.” See id.
35. See UNITED STATES GOLF ASSOCIATION, supra note 34, § 2, at 15, available at
http://www.worldgolf.com/wglibrary/reference/dictionary/gpage.html. The “putting green”
refers to the putting surface of each hole. Id.
36. Shin, 165 P.3d at 583.
37. Id.
38. Id.
39. See id. “Generally, in final preparation for hitting a stroke a golfer focuses his or her
attention on the ball and does so until he or she has hit the shot.” Id. at 583 n.3.
40. Id.; see Brent Kelley, Pull, ABOUT.COM: GOLF, Aug. 29, 2008, http://golf.about.
com/cs/golfterms/g/bldef_ pull.htm.
41. Shin, 165 P.3d at 583.
42. Id.
43. See id.
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SHIN V. AHN: NEGLIGENCE GOES UNPUNISHED
93
trial was “whether defendant knew where plaintiff was standing when he
teed off.” 44 In his deposition, Shin says he made eye contact with Ahn
when Shin took the shortcut up the hill toward the thirteenth tee box. 45 In a
different account, Shin contends that he did not make eye contact with Ahn
until he reached the place where he was eventually hit with the golf ball. 46
Shin specifically states: “[p]rior to anyone teeing off on the [thirteenth]
hole, I made eye contact with [d]efendant [Jack] Ahn as he saw me
standing in front of him in close proximity to his left.” 47
Ahn states that he took a practice swing before he stepped up to his
ball to take his shot, and then looked toward the target to make sure that no
one was in front of him. 48 Ahn says he stepped up to the ball, focused for
fifteen to twenty seconds while adjusting his grip and settling into his
stance, and then took his swing. 49 In his deposition, Ahn states that he was
unaware of Shin’s whereabouts during Ahn’s practice swing as well as
during the time when Ahn actually teed off. 50
Shin called an expert witness at trial to testify on Shin’s behalf. 51 The
expert stated that, according to the rules of golf, proper etiquette requires a
player to make sure that no other person is in danger of being hit with the
ball when he or she takes his or her shot. 52 In order to prevent injury, Ahn
should have shouted a warning prior to teeing off if he knew or should have
known that Shin was in the direct zone of danger and that Ahn could have
hit Shin with Ahn’s shot. 53
Relying on the primary assumption of risk doctrine, Ahn moved for
summary judgment. 54 At first, the trial court agreed that the doctrine
applied, that there were no material facts in dispute, and granted Ahn
summary judgment. 55 However, after reviewing the case, the trial court
reversed itself, finding that disputed material facts existed regarding the
actual distance between the parties and Ahn’s knowledge of Shin’s
44.
45.
46.
47.
48.
49.
50.
51.
52.
Id.
Id.
Id.
Shin, 165 P.3d at 583.
See id.
See id.
Id.
See id.
See id.; UNITED STATES GOLF ASSOCIATION, supra note 34, § 1, at 1 (explaining
proper golf etiquette).
53. See Shin, 165 P.3d at 583.
54. Id.
55. Id.
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whereabouts prior to teeing off. 56
Ahn appealed to the California Court of Appeal. 57 In a conflicting
disposition, the court of appeal affirmed the trial court’s decision and held
that the primary assumption of risk doctrine was not applicable in this case
because it involved two golfers who were members of the same group. 58
B. Court of Appeal Distinguishes Shin from Dilger v. Moyles
In Shin, the court of appeal discussed Dilger v. Moyles, a case from a
different California Court of Appeal. 59 The court in Dilger held that the
primary assumption of risk doctrine applied because the defendant, a
member of a different group, hit the plaintiff with a wild shot. 60
The court of appeal in Shin properly distinguishes the case at bar from
Dilger. 61 In Dilger, the parties were not members of the same golf group
and the Dilger court held that errant golf shots entering other holes is a
likely and well-known part of golf. 62 In Shin, however, the parties were
members of the same golf group; thus, the likelihood of striking a coparticipant greatly diminishes. 63 Accordingly, the court of appeal in Shin
applied general negligence principles, concluding that Ahn breached his
duty of care owed to Shin by failing to account for Shin’s location prior to
teeing off. 64 The court of appeal also considered Shin’s degree of
comparative fault in standing in front of Ahn during Ahn’s tee shot. 65 The
court remanded this issue down to the trial court where each party’s degree
of fault could be calculated consistent with secondary assumption of risk
principles. 66
C. Supreme Court of California Overturns the Court of Appeal
and Applies the Primary Assumption of Risk Doctrine
Despite the court of appeal’s well-reasoned decision to disregard the
primary assumption of risk doctrine in Shin, the Supreme Court of
California concluded that the primary assumption of risk doctrine should
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
See id. at 584.
See id.
Id.
Shin, 165 P.3d at 584.
See Dilger v. Moyles, 63 Cal. Rptr. 2d 591, 594 (Cal. Ct. App. 1997).
See Shin, 165 P.3d at 584.
Dilger, 63 Cal. Rptr. 2d at 592, 594.
See Shin, 165 P.3d at 584.
Id.
See id.
See id.
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SHIN V. AHN: NEGLIGENCE GOES UNPUNISHED
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extend to golfers playing in different groups as well as those playing in the
same group. 67 Rejecting a comparative fault analysis, the Supreme Court of
California implemented an all-or-nothing approach, recognizing liability
only where a “participant intentionally injures another player or engages in
conduct that is so reckless as to be totally outside the range of the ordinary
activity involved in the sport.“ 68
III. Secondary Assumption of Risk, Comparative Liability, and Its
Relationship to Golf
Some jurisdictions allow plaintiffs to recover for their injuries,
specifically from golfers who are members of the same group. 69 Other
jurisdictions bar recovery entirely. 70 However, those jurisdictions
prohibiting liability make their conclusions on a case-by-case basis, and
thus analyze the specific facts of each case to assess whether a plaintiff
does, in fact, assume the risk of injury resulting from a defendant’s
conduct. 71 Moreover, when a plaintiff does not assume the risk, then the
courts consider secondary assumption of risk principles in calculating their
comparative negligence appropriations. 72
In such a case, a key aspect of inquiry involves the likelihood of risk
arising out of the defendant’s particular conduct, and whether a warning
could have avoided the injury. 73 As a general rule in the sport of golf, one
who is going to strike a ball must, in the exercise of ordinary care, give
sufficient and timely warning to those players who are not aware of the
striker’s intention to play and who may also be in harm’s way. 74
A. Establishing Liability: Golfers Injured Within the Same Group
Many jurisdictions hold that golfers do not assume the risk of injuries
caused by members of the same group, unless the defendant gives adequate
67. See id. at 582, 584 (“This case represents the next generation of our Knight
jurisprudence.”).
68. Knight v. Jewett, 834 P.2d 696, 711 (Cal. 1992); see Shin, 165 P.3d at 584.
69. David M. Holliday, Annotation, Liability to One Struck By Golf Ball, 53 A.L.R. 4th
282, § 3[a] (1987).
70. See id. § 3[b].
71. See id.
72. See David Horton, Extreme Sports and Assumption of Risk: A Blueprint, 38 U.S.F.
L. REV. 599, 615-16 (2004).
73. See Cook v. Johnston, 688 P.2d 215, 216-17 (Ariz. Ct. App. 1984).
74. See Stober v. Embry, 47 S.W.2d 921, 922 (Ky. Ct. App. 1932); see also Toohey v.
Webster, 117 A. 838, 839 (N.J. 1922); Povanda v. Powers, 272 N.Y.S. 619, 623 (N.Y. Gen.
Term 1934); Everett v. Goodwin, 161 S.E. 316, 318 (N.C. 1931).
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warning and waits for the plaintiff to move out of harm’s way. 75 For
example, in Allen v. Pinewood Country Club, Inc., the Louisiana Court of
Appeal concluded that a golfer could recover for injuries from a member of
the same group when the defendant’s golf ball struck the plaintiff in the
face. 76 The plaintiff was in plain view of the defendant and clearly within
the defendant’s range when the defendant took his shot. 77 The court found
that the defendant noticed the plaintiff before teeing off, was aware that the
plaintiff’s back was turned, and called the warning “fore” out loud, but did
not ascertain that the plaintiff heeded the defendant’s warning. 78
In its analysis, the Allen court applied negligence principles to
determine whether the defendant acted negligently in his failure to
recognize whether the plaintiff heard the warning, and whether the plaintiff
had enough time to move out of harm’s way. 79 The plaintiff heard the
defendant’s warning, but due to the fact that the defendant did not give the
plaintiff enough time to react, the court held that it was as if the defendant
delivered no warning at all. 80
The court stressed practical views that the plaintiff would not assume
that a golfer in his group would drive his ball while the plaintiff was
standing in front of the defendant with his back turned. 81 A player only
assumes those risks inherent in the game, but does not assume the risk of a
defendant’s un-forewarned negligence. 82 Accordingly, the court found that
the plaintiff did not assume the risk of the defendant’s inadequate warning
and therefore did not bar recovery. 83 Thus, the court apportioned liability in
accordance with secondary assumption of risk principles. 84
B. Failing to Establish Liability: Golfers in the Same Group Did
Not Act Negligently
Several jurisdictions find that a defendant is not liable where the
defendant caused injury to the plaintiff who was playing in the same
75. See generally Johnston v. Blanchard, 93 N.E.2d 494, 494 (N.Y. 1950); Getz v.
Freed, 105 A.2d 102, 104-05 (Pa. 1954); Alexander v. Wrenn, 164 S.E. 715, 715-18 (Va.
1932).
76. See Allen v. Pinewood Country Club, Inc., 292 So. 2d 786, 787 (La. Ct. App. 1974).
77. See id. at 788-89.
78. See id. at 788.
79. See id. at 789.
80. See id. at 789-90.
81. See id. at 790.
82. See Wood v. Postelthwaite, 496 P.2d 988, 995 (Wash. Ct. App. 1972), aff’d, 510
P.2d 1109 (Wash. 1973).
83. See Allen, 292 So. 2d at 790.
84. See id. at 790-91.
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group. 85 In most of these cases, however, comparative fault principles take
priority over the application of the primary assumption of risk doctrine. 86
Comparative fault principles ultimately promote justice in the legal system
and allow the courts to apportion fault fairly. 87 For example, in Walsh v.
Machlin, the Supreme Court of Connecticut held that a defendant golfer
was not negligent for causing injury to the plaintiff. 88 Under normal
circumstances, the plaintiff was standing in a position where he should
have been safe, the defendant could not have known of the potential for
injury, and the plaintiff knew that the defendant was about to hit the ball. 89
Accordingly, the Walsh court held that because of the very unusual nature
of the defendant golfer’s shot, the defendant did not act unreasonably,
recklessly, or negligently, and the resulting injury was not due to
negligence. 90 Rather, it was the unfortunate result of an accident. 91
Similarly, in Turel v. Milberg, the New York Supreme Court found
that, despite the defendant’s failure to yell “fore” prior to teeing off, the
plaintiff was well aware that the defendant was about to take his shot, and
therefore could not recover for his injuries. 92 The court applied a
negligence standard and found that the defendant did not act negligently. 93
Accordingly, a case-by-case analysis employing the secondary assumption
of risk approach is conducive to promoting justice, fairness, and in properly
apportioning liability. 94
IV. ANALYSIS
In contrast to the majority of sports, golfers play without the
supervision of an umpire or referee. 95 The game relies on individual
integrity, and those that play should abide by the rules and show
85. See, e.g., Walsh v. Machlin, 23 A.2d 156, 156-57 (Conn. 1941); Rindley v.
Goldberg, 297 So. 2d 140, 141 (Fla. Dist. Ct. App. 1974); Kelly v. Forester, 311 S.W.2d
547, 549-50 (Ky. 1958); Turel v. Milberg, 169 N.Y.S.2d 955, 956 (N.Y. App. Term 1957).
86. See Walsh, 23 A.2d at 157; Rindley, 297 So. 2d at 140-41; Kelly, 311 S.W.2d at 54750; Turel, 169 N.Y.S.2d at 956.
87. See Walsh, 23 A.2d at 156-57; Rindley, 297 So. 2d at 141; Kelly, 311 S.W.2d at 54950.
88. Walsh, 23 A.2d at 157.
89. Id. at 156-57.
90. Id.
91. See id. at 157.
92. See Turel v. Milberg, 169 N.Y.S.2d 955, 956 (N.Y. App. Term 1957).
93. See id.
94. See Answer Brief on the Merits at 19, Shin v. Ahn, 165 P.3d 581 (Cal. 2007) (No.
S146114), 2007 WL 526101.
95. See UNITED STATES GOLF ASSOCIATION, supra note 34, § 1 (explaining the spirit of
golf).
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consideration for one another. 96 The spirit of the game promotes
sportsmanship, courtesy, and discipline. 97 Players enjoy the sport to its
fullest when they follow all of the rules and display respect for others at all
times. 98
In Shin, Ahn broke the rules and caused Shin serious injuries. 99 The
California courts firmly establish that, in the context of sports, a participant
will not be held liable for injuries to another participant when the injury is a
result of an inherent risk associated with the sport. 100 However,
misinterpretation of what is “inherent” in a particular sport poses
problems. 101
The California Supreme Court in Shin mistakenly concludes that Shin
assumed the risk that a member of his own golf group could cause him
injury. 102 The Shin court applied the primary assumption of risk doctrine
and allowed negligent conduct to go unpunished. 103 Hence, the Supreme
Court of California’s reasoning in Shin displays serious gaps in logic. 104
Instead, the Supreme Court of California should have concluded that
the plaintiff did not assume the risk that a member of his same group could
cause him injury. 105 The defendant owed a duty to refrain from increasing
96.
97.
98.
99.
100.
Id.
See id.
See id.
See Shin v. Ahn, 165 P.3d 581, 583 (Cal. 2007).
See Knight v. Jewett, 834 P.2d 696, 708 (Cal. 1992); Am. Golf Corp. v. Superior
Court, 93 Cal. Rptr. 2d 683, 689 (Cal. Ct. App. 2000).
101. Compare Am. Golf Corp., 93 Cal. Rptr. 2d at 689 (discussing what risks are inherent
in golf), and Dilger v. Moyles, 63 Cal. Rptr. 2d 591, 593 (Cal. Ct. App. 1997) (concluding
that golfers assume the risk of errant golf shots causing injury), with Allen v. Pinewood
Country Club, Inc., 292 So. 2d 786, 789-90 (La. Ct. App. 1974) (holding that golfers do not
assume the risk that a member of their own group will hit them with the ball when the
plaintiff is unaware of the defendant’s intention to hit and where the defendant does not wait
for the plaintiff to move out of harm’s way before taking his shot) and Johnston v.
Blanchard, 93 N.E.2d 494, 494 (N.Y. 1950) (finding that a plaintiff golfer does not assume
the risk of injury where a defendant fails to give any warning at all).
102. Cf. Johnston v. Blanchard, 93 N.E.2d 494, 494 (N.Y. 1950) (affirming judgment for
the plaintiff as defendant was aware the plaintiff had left his place of safety); Getz v. Freed,
105 A.2d 102, 104-05 (Pa. 1954) (holding that a jury could not find that the plaintiff
assumed the risk); Alexander v. Wrenn, 164 S.E. 715, 715, 718 (Va. 1932) (affirming
judgment for the plaintiff for damages caused by a golf ball that the defendant struck);
Wood v. Postelthwaite, 496 P.2d 988, 995 (Wash. Ct. App. 1972), aff’d, 510 P.2d 1109,
1109 (Wash. 1973) (explaining that if a defendant has a duty to warn the plaintiff before
hitting the golf ball, the plaintiff does not assume the risk of injury).
103. See Shin, 165 P.3d at 590.
104. See id. at 593 (Kennard, J., dissenting).
105. Johnston, 93 N.E.2d at 494 (holding the defendant responsible for the plaintiff’s
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the risk to his co-participant. 106 Where such a duty exists, the primary
assumption of risk doctrine is not applicable. 107 The courts must apply the
secondary assumption of risk doctrine and apportion liability fairly. 108
Finding participants liable for their actions reaffirms justice in the
legal system 109 and will not decrease participation in the sport of golf. 110
Furthermore, holding defendants legally accountable for their negligent
conduct on the golf course upholds golf’s gentlemanly spirit. 111 Therefore,
the primary assumption of risk doctrine should not apply where a golfer
injures another member of the same golf group. 112
A. Golfers Do Not Assume the Risk that a Member of Their
Same Golf Group Will Hit Them with the Ball
In Shin, the California Supreme Court determines that golfers assume
the risk of careless shots because golf balls do not always go in their
intended directions. 113 If golfers hit every shot perfectly, there would be no
sport. 114 The Shin court’s analysis functions appropriately when dealing
with golfers playing in different groups, as golfers do not have a duty to
warn where another player is not near the ball’s intended line of flight. 115 A
golfer assumes the risk that a wild golf shot from a different hole may
injuries as a result of the defendant’s errant golf shot); Getz, 105 A.2d at 104 (holding that a
jury could not find that the plaintiff assumed the risk); Alexander, 164 S.E. at 715, 718
(affirming judgment for the plaintiff for damages resulting from the defendant’s golf ball).
106. See Shin, 165 P.3d at 590; Avila v. Citrus Cmty. Coll. Dist., 131 P.3d 383, 392 (Cal.
2006).
107. See Avila, 131 P.3d at 394; Knight v. Jewett, 834 P.2d 696, 712 (Cal. 1992).
108. See Shin, 165 P.3d at 591; see also Getz, 105 A.2d at 105; Alexander, 164 S.E. at
718.
109. See Li v. Yellow Cab Co., 532 P.2d 1226, 1231-32 & n.5 (Cal. 1975) (quoting
Robert E. Keeton, Comment on Maki v. Frelk—Comparative v. Contributory Negligence:
Should the Court or Legislature Decide?, 21 VAND. L. REV. 906, 916 (1968)).
110. See Criscuolo, supra note 32, at 684.
111. See Edward Charkow, Golf is Called a Gentleman’s Game for Good Reason, EZINE
@RTICLES, http://ezinearticles.com/?Golf-is-called-a-Gentlemans-Game-for-Good-Reason&
id=229176 (last visited Dec. 4, 2008); Noel G. Binayas, Golf, The Gentleman’s Game,
http://www.iloilogolfclub.com/gentlemans_game.html (last visited Dec. 4, 2008).
112. See Johnston v. Blanchard, 93 N.E.2d 494, 494 (N.Y. 1950); Getz v. Freed, 105
A.2d 102, 104-05 (Pa. 1954); Alexander v. Wrenn, 164 S.E. 715, 715, 718 (Va. 1932);
Wood v. Postelthwaite, 496 P.2d 988, 990, 998 (Wash. Ct. App. 1972), aff’d, 510 P.2d
1109, 1110 (Wash. 1973).
113. See Shin, 165 P.3d at 586-87.
114. Id.
115. Wood, 496 P.2d at 991.
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[Vol. 43:87
cause him injury. 116 In that situation, a warning is superfluous as the golfer
may not hear the warning and is not standing directly in the zone of
danger. 117
However, golf participants ought to pay close consideration to all
members of their own group at all times. 118 A golf ball moves at a high rate
of speed and can cause serious injury. 119 When a golfer strikes his ball
without ascertaining the whereabouts of the rest of his group, he increases
the risk beyond that which is inherent in the sport. 120 Golfers do not
consider the course to be a dangerous place, and rule-abiding players
ensure the safety of their co-participants. 121
B. The Primary Assumption of Risk Doctrine Does Not Apply to
Golfers in the Same Golf Group – Secondary Assumption of
Risk Applies
A plaintiff golfer does not assume the risk that a member of the same
group will hit the plaintiff with a golf ball causing injury. 122 Where, by
virtue of the sport, the plaintiff does not assume the risk, a legal duty arises
on behalf of the defendant. 123 In California, golfers have a legal duty to
refrain from conduct that increases the potential for harm. 124 As a direct
implication of that duty, the courts should not apply the primary
assumption of risk doctrine. 125 Instead, the secondary assumption of risk
doctrine applies. 126
In a judicial system where liability is based on fault, the extent of
liability should correlate positively with the degree of fault. 127 This theory
is in accordance with the secondary assumption of risk doctrine, as well as
116. Shin, 165 P.3d at 584 (citing Dilger v. Moyles, 63 Cal. Rptr. 2d 591 (Cal. Ct. App.
1997)).
117. See Wood, 496 P.2d at 990-91.
118. See UNITED STATES GOLF ASSOCIATION, supra note 34, § 1 (explaining the spirit of
golf).
119. See Shin, 165 P.3d at 586-87.
120. See id.; Yancey v. Superior Court, 33 Cal. Rptr. 2d 777, 780 (Cal. Ct. App. 1994).
121. See Everett v. Goodwin, 161 S.E. 316, 318 (N.C. 1931) (quoting Schlenger v.
Weinberg, 150 A. 434, 435 (N.J. 1930)).
122. See Johnston v. Blanchard, 93 N.E.2d 494, 494 (N.Y. 1950); Getz v. Freed, 105
A.2d 102, 103-04 (Pa. 1954); Alexander v. Wrenn, 164 S.E. 715, 718 (Va. 1932); cf. Wood,
496 P.2d at 995-96.
123. See Knight v. Jewett, 834 P.2d 696, 708 (Cal. 1992).
124. See Am. Golf Corp. v. Superior Court, 93 Cal. Rptr. 2d 683, 689 (Cal. Ct. App.
2000); Yancey, 33 Cal. Rptr. 2d at 779-80.
125. See Knight, 834 P.2d at 708.
126. See id. at 707-08.
127. See Li v. Yellow Cab Co., 532 P.2d 1226, 1230 (Cal. 1975).
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the comparative negligence approach. 128 A system allocating blame
proportionally better protects the rights of all parties through
evenhandedness, predictability, and uniformity. 129 In its quest for justice in
the legal system, the court always balances the responsibility of each party
resulting in injury. 130 Accordingly, the courts should, in the interest of
justice and promotion of fairness, apply the secondary assumption of risk
doctrine to cases involving injuries arising out of the negligent conduct of a
defendant who is a member of the same golf group as the plaintiff. 131
C. Imposing Liability Will Not Fundamentally Alter the Sport of
Golf
The California Supreme Court applies the primary assumption of risk
doctrine to protect participants from liability. 132 The policy driving its
approach contends that imposing liability would fundamentally alter the
nature of a sport and inhibit people from participating. 133 This logic applies
to active sports like touch football or skiing, where accidents or injuries
occur. 134 Football is a rough, fast-paced, 135 full-contact sport that involves
players hitting each other as hard as they can. 136 If a court imposes liability
on a football player for tackling an opponent too vigorously, it would lead
football players to tackle with caution. 137 This may cause players to miss
tackles for fear of liability and would clearly alter the fundamental nature
of the sport. 138
On the other hand, golf is a slow-paced sport that offers many healthy
advantages to players and to the community. 139 Physical exercise outdoors
combined with the smell of nature refreshes the mind and uplifts the
spirit. 140 Golf offers the opportunity to meet new people with similar
128.
129.
130.
131.
132.
133.
134.
135.
See id. at 1241; Knight, 834 P.2d at 708.
See Li, 532 P.2d at 1231-32 n.5, 1241-43.
See Answer Brief on the Merits, supra note 94, at 19.
See Li, 532 P.2d at 1232-33; Knight, 834 P.2d at 708.
See Knight, 834 P.2d at 707-08.
See id. at 710; Criscuolo, supra note 32, at 682.
See Shin v. Ahn, 165 P.3d 581, 585 (Cal. 2007).
Bradley C. Nielsen, Controlling Sports Violence: Too Late for the Carrots—Bring
on the Big Stick, 74 IOWA L. REV. 681, 700 (1989).
136. See Sanjay Jose Mullick, Browns to Baltimore: Franchise Free Agency and the New
Economics of the NFL, 7 MARQ. SPORTS L.J. 1, 33 (1996).
137. See Knight, 834 P.2d at 710.
138. See id.; Shin, 165 P.3d at 585.
139. Dilger v. Moyles, 63 Cal. Rptr. 2d 591, 593 (Cal. Ct. App. 1997).
140. Id.
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interests and enjoy a day outdoors with friends. 141 Regardless of how
peaceful the golf surroundings are and how congenial co-participants are
with one another, golfers will strike the ball to the best of their ability. 142
Relying on pure physics, the golf ball will move at a high velocity. 143 The
intent to hit the ball to one’s best ability, causing the ball to travel at high
speeds, will not change even if courts impose liability to golfers, as players
do not consciously think about the mechanics of their golf swing while
taking their shot. 144 Courts should impose liability to reaffirm a player’s
safety. 145 If a participant’s neglect for the rules of golf goes unpunished,
resulting in injury to a member of his golf group, this negligence will
inevitably ruin a day on the golf course, and, as evidenced by Ahn’s
negligence in Shin, can ruin an individual’s life. 146 Accordingly, imposing
liability on negligent participants will not fundamentally alter the sport of
golf. 147
V. CONCLUSION
The doctrine of assumption of risk has challenged the courts for
centuries. 148 In Shin, the Supreme Court of California incorrectly allowed
the defendant to use the primary assumption of risk doctrine as an absolute
defense, and thus prohibited the plaintiff golfer from recovering for serious
and permanent injuries that a member in his same group caused. 149 The
court used faulty reasoning that displayed weak analysis. 150
Under the circumstances in Shin, the pure negligent conduct arising
out of a golfer failing to ascertain the position of only two other members
of his group, not yelling out “fore” before striking his ball, and not making
sure that the other members knew he was hitting, resulted in serious and
permanent head injury. 151 The innocent victim should have a cause of
action in court. 152 In fact, the victim should be permitted to sue for
141.
142.
143.
144.
Id.
See Benjamin v. Nernberg, 157 A. 10, 11 (Pa. Super. Ct. 1931).
See Dilger, 63 Cal. Rptr. 2d at 593.
See Paul J. Heald, Mindlessness and Nondurable Precautions, 27 GA. L. REV. 673,
677-78 (1993).
145. See Criscuolo, supra note 32, at 685 (discussing how co-participants are liable for
increasing the risk of harm to others).
146. See Shin v. Ahn, 165 P.3d 581, 583 (Cal. 2007).
147. See Criscuolo, supra note 32, at 684.
148. See Li v. Yellow Cab Co., 532 P.2d 1226, 1230 (Cal. 1975).
149. See Shin, 165 P.3d at 584.
150. See id. at 592-93 (Kennard, J., concurring and dissenting).
151. See id. at 583 (majority opinion).
152. See Answer Brief on the Merits, supra note 94, at 19.
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negligent conduct, and the defendant ought to be prohibited from using the
primary implied assumption of risk doctrine as a defense. 153 The
fundamental nature of golf will not be altered if the courts impose
liability. 154 Thus, courts should apply the secondary implied assumption of
risk doctrine, follow comparative fault principles, and reinforce the
cornerstones of fairness and moral responsibility that prevent future harm
and create accountability for unlawful behavior. 155
153. See id.
154. See Criscuolo, supra note 32, at 684.
155. See Li v. Yellow Cab Co., 532 P.2d 1226, 1230 (Cal. 1975).