Even devoted readers of the Business Law Column may be unaware that May is golf month in the BLC; but, it’s right there in the BLC bylaws. While little, if any, BLC space has been dedicated over the years to the convergence of law and golf, the two do come together from time to time. And, with Minnesota often ranked among the top states for golf in the country, the state of golf law in Minnesota seems a worthy subject.
Like other recreational activities, golf carries rare but real risks to participants’ physical safety, and when those risks unfortunately come to fruition (typically in the form of an errantly struck ball), legal analysis is sometimes necessary. Consequently, over the years, courts across the country have examined how these risks affect a person’s ability to recover for on-course injuries. In particular, courts have addressed whether golfers or golf spectators assume risks that are so “inherent” in those activities that the golfer or spectator cannot recover for an injury against a golfer whose potential negligence caused the injury.
While the Minnesota Supreme Court has discussed the legal concept “primary assumption of the risk” in the context of many recreational sports, its cases involving golf are limited. But, a recent case involving a different sport could indicate how the court might view primary assumption of the risk in a golf setting.
Primary assumption of the risk provides a defendant a complete defense to a plaintiff’s claim for negligence. But, it applies only where the plaintiff and defendant have voluntarily entered a relationship (sometimes as co-participants in an activity) in which the plaintiff assumes well-known, inherent risks. For example, in Minnesota, a spectator viewing a baseball game from outside the screened-in area directly behind and adjacent to home plate assumes the risk of being injured by a foul ball because foul balls are hazards inherent in the sport.
The Minnesota Supreme Court has addressed primary assumption of the risk in two golf cases. First, in the 1962 case Hollinbeck v. Downey, a caddie was running through the golf-ball-landing-area of a driving range to return practice balls hit by his player when he was struck in the head by a shot from another player hitting on the range. (Evidently, the golf course did not consult its attorney before allowing this practice!) The court refused to apply primary assumption of the risk outright, concluding instead that a jury should decide whether the caddie assumed the risks of running through the driving range. More importantly, the court held that if the golfer who struck the caddie with his shot “knew, or in the exercise of ordinary care should have known, that [the caddie] was in a zone of danger and was unaware of [the golfer’s] intention to hit, [the golfer] should have given him a warning or desisted from striking the ball until [the caddie] was in a place of safety.”
Second, in the 1987 case Grisim v. TapeMark Charity Pro-Am Golf Tournament, a spectator at a golf tournament sat down under a tree near a green after seeing a designated spectator area was very crowded. A golfer then hit a shot that hooked left of the green and struck the spectator. The spectator sued, and the case eventually reached the Minnesota Supreme Court, which held the spectator’s claim against the golfer was prohibited by primary assumption of the risk. Specifically, the court concluded that a golfer’s obligation to wait or warn others before hitting described in Downey did not apply to spectators: “We believe the reasoning in Downey is more appropriate in the context of regular play or practice, where golfers should be obligated to warn their preoccupied fellow golfers, than in the context of a tournament involving spectators who are there to observe play and have assumed the risks of straying too close to the playing area.”
To sum up Downey and Grisim, in Minnesota, primary assumption of the risk does not prevent Golfer A or a caddie from recovering against Golfer B if Golfer B (1) knows or should know Golfer A or the caddie is in a “zone of danger” and is unaware of Golfer B’s intention to hit, and (2) without giving prior warning, hits a shot that injures Golfer A or the caddie. Conversely, primary assumption of the risk does prevent a spectator from recovering against Golfer B in the same scenario.
In a case decided in January 2019, the Minnesota Supreme Court declined to apply primary assumption of the risk in a case in which a snowboarder collided with a skier. The court relied in part on reasoning of the Connecticut Supreme Court in another skiing case that distinguished skiing from other sports in which primary assumption of risk is more readily applied among participants: “If skiers act in accordance with the rules and general practices of the sport, at reasonable speeds, and with a proper lookout on the slopes, the vast majority of contact between participants will be eliminated. The same may not be said of soccer, football, basketball, and hockey.” Minnesota courts would likely extend this reasoning to golf, given the Downey court’s assumption that golfers can recognize when fellow golfers are in a “zone of danger.”
But does the “zone of danger” rule expect too much of participants in such an unpredictable game? In summarizing the travails of both casual and practiced golfers, the Ohio Supreme Court has said, “It is well known that not every shot played by a golfer goes to the point were he [or she] intends it to go. If such were the case, every player would be perfect and the whole pleasure of the sport would be lost. It is common knowledge, at least among players, that many bad shots must result although every stroke is delivered with the best possible intention and without any negligence whatsoever.”
Under this reasoning, some might argue the “zone of danger” should be confined to the small area where a golfer intends to hit a shot. Others might argue the size of the zone should correlate to a golfer’s skill (the response to this being that the best golfers in the world hit fairways and greens only 50-75% of the time). Most likely, however, is that the zone of danger in a given case lies in the foggy legal expanse of “It Depends.” Beyond a golfer’s skill and target, what were the weather conditions? What type of shot was being hit? Did the golfer’s grips lack the appropriate amount of Stick-Um™? Etcetera.
Instead of worrying where the zone of danger might be, golfers would do well to heed the second element the court identified in Downey and, when appropriate, warn fellow golfers before hitting a shot. I recall one of the better golfers I’ve played with doing just this, yelling “FORE!” in a low booming voice toward a slow-playing group ahead long before anyone in our group had even teed up a ball. Although potentially confusing at first—because it’s the opposite of when nearly all golfers actually warn others that a ball is headed their direction—it is likely an effective way (along with waiting, of course) to minimize a legal hazard in a game with more than enough other hazards to go around.
Eric Johnson is an attorney at Fryberger Law Firm, practicing primarily in the area of business litigation. He starts thinking about golf long before the snow is gone each year and can be reached at Fryberger’s Duluth office at (218) 722-0861.