Clubhouse to Courthouse: Law on the Golf Course

Compared to many sports, golf would seem to be a model of civility, a game of calm contemplation played in pastoral surroundings. In reality, it is the second-most litigated sport (baseball is first), says John H. Minan, JD '72, an avid golfer and professor of law at the University of San Diego. In The Little Book of Golf Law (American Bar Association, 2013), Minan presents 39 golf-related legal cases that address areas of law from torts and contracts to sovereign immunity and antitrust. In the adaptation below, Minan describes a case that represents perhaps the most common legal question a golfer might have: "What is my liability for hitting another player with a golf ball?"

Ben Hogan remarked that "golf is a game of misses." A lawyer might add that missing another player with a golf shot is a good way to avoid being sued for negligence.

In most cases, successfully suing another player for negligence is difficult. Courts frequently reason that golfers assume the risks inherent in the game, including being hit by an errant shot. But all is not lost for the injured player. Other legal theories, such as recklessness or intentional conduct by the defendant, may be available under the right circumstances.

In the popular movie Sideways, Miles Raymond and Jack Cole decide to play a round of golf during a California wine-tasting road trip. The banter between Jack and Miles slows down the pace of play. This prompts a frustrated golfer playing behind them to "hit into them" to encourage them to pick up the pace. It doesn't. Miles hits the offending ball back at the group. The return volley rattles off the offender's golf cart, and things escalate from there. Ultimately, Jack charges the group, wildly swinging a club and yelling, "This is going to be fun!" On the one hand, the offending salvo, the return volley, and the wild charge are certainly not risks inherent in the game of golf. On the other hand, being "hit into" is common and often causes heated exchanges.

Shin v. Ahn

The setting was the par-four, 13th hole at the Rancho Park Golf Course in Los Angeles. This popular public course, which was built in the late 1940s, is owned and operated by the city of Los Angeles. The fairways are lined with mature trees, and the terrain is generally hilly. By all accounts, it is a pleasant place to play golf.

On the ill-fated day, Johnny Shin, Jeffrey Frost, and Jack Ahn were playing together as a threesome. After putting out on the 12th hole, Ahn headed for the 13th tee box. Shin and Frost finished putting and followed. Shin took a shortcut up the hill toward the tee box, which placed him in front of Ahn and to his left.

Shin stopped to check his cell phone for messages and to get a bottle of water from his golf bag. He was then about 25 to 35 feet in front of Ahn, who was getting ready to tee off.

With Shin in front of Ahn, the stage was set for disaster. But some facts were disputed. Shin claimed that Ahn saw him standing in front of him, which Ahn denied. Ahn claimed that he did not see Shin, either when he took a practice swing or when he actually teed off.

His tee ball didn't go as planned. Ahn, who is right-handed, pulled his tee shot to the left, whacking Shin in the head. It is not certain how much distance he lost by Shin getting in the way. In any event, Shin sued Ahn in negligence for his "disabling, serious, and permanent" injuries.

The Law

As a general matter, two types of implied assumption of the risk exist: primary and secondary. Primary assumption exists when a golfer is considered to have accepted the risks inherent in the game. In such a case, the courts will reason that the defendant owes the plaintiff no duty to protect the plaintiff from conduct that is a foreseeable and customary part of the game. Without the existence of a duty, a plaintiff's claim of negligence fails. Some jurisdictions have adopted statutes that provide that a person who takes part in a sport accepts, as a matter of law, the inherent risks that are obvious and a necessary part of the game. You might think of it in the following terms: If you are a boxer, you should not complain if you get hit while boxing.

In the secondary form of implied assumption of the risk, the plaintiff knows about a particular risk and acts unreasonably in voluntarily encountering that risk. It may or may not bar recovery. In some jurisdictions, for example, this form of assumption of risk doctrine does not bar recovery, but results in the application of principles of comparative negligence, in which liability is apportioned between the plaintiff and the defendant.

In Shin, the trial court initially granted the defendant's motion for summary judgment. The court then changed its mind and ordered a new trial to determine if Ahn's actions increased the risk beyond those assumed by Shin. The defendant disagreed with the court's change of heart and appealed, arguing that he should prevail as a matter of law.

The court of appeal affirmed. It found that Ahn had breached the duty to ascertain Shin's whereabouts before hitting, and ordered a new trial to apportion the fault between the parties. It saw the matter as fitting with the category of secondary assumption of the risk. The appellate court reasoned that the no-duty rule of primary assumption applied only when the injured golfer was playing with a different group of golfers. Therefore, because Shin and Ahn were playing in the same threesome, the primary assumption of the risk (no-duty rule) was inapplicable.

The California Supreme Court stepped into the fray, framing the decision as the "next generation" of jurisprudence following the landmark case of Knight v. Jewett, which was based on avoiding legal rules that impose liability in "contact sports" for "ordinary careless conduct."

The court applied the Knight primary assumption of the risk doctrine to golf even though it is not considered a contact sport. It also rejected the appellate court's reasoning that assumption of the risk was limited to situations where the plaintiff and defendant are playing together in the same group. The duty of a golfer turns on the nature of the game, and not on whether the defendant is playing with the plaintiff in the same group.

The court cautioned that being hit by a poorly struck golf ball is an inherent risk of the game. In short, a mishit ball that strikes another is simply a risk that any golfer assumes. As a matter of policy, holding a golfer liable for a mishit shot would have the undesirable effect of encouraging lawsuits and preventing golfers from playing the game.

The Shin decision reflects the general reluctance to apply principles of simple negligence to mishit shots that cause injury. It was based on the concern of turning a pleasant day on the golf course into a visit to the courthouse.

Adapted with permission from The Little Book of Golf Law, Second Edition, ©2013 by the American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.