Hawai`i Supreme Court Says No "Fore" is No Breach

In an interesting case picked up by the Journal's Law Blog, the Hawai`i Supreme Court held that a golfer who hits another golfer with a ball is only liable if s/he acts recklessly or intentionally (the original AP story is here and the court's opinion is here). Mere negligence on the links is not actionable. This is of course consonant with the vast majority rule in American law -- that co-participants in sports (at whatever level) may not recover from each other for injuries caused by negligence or resulting from conduct that is "part of the game." See this post by Greg.

Here are the facts of the case: "Tom was about 175 yards away from the hole when he hit his approach shot to the fifth hole green. The ball, however, took flight in an unintended direction. The ball hit the left side of the fairway, bounced into the rough, bounced again on the dirt area, then bounced onto the cart path, sending the ball towards the golf cart in which Yoneda was seated. Yoneda was struck in the left eye as his golf cart emerged from behind the restroom building."

The puzzling thing is the court's analysis of the failure of a player to yell "fore" when hitting a golf ball headed towards another player. The plaintiff in the case was struck in the eye and defendant admitted that he had not called out any warning. The court evidently took judicial notice that "It appears to be common knowledge among golfers that golf etiquette requires that a player shout 'fore' as a warning when his or her shot may endanger another player." However, the defendant's "failure to yell 'fore' when he hit the errant shot cannot be said to have been intentional or reckless conduct that falls outside the range of the ordinary activities involved in golfing. See Dilger, 63 Cal. Rptr. 2d at 594 (holding that golf etiquette, i.e., yelling 'fore' to warn others of errant shots, 'does not necessarily rise to the level of a duty')."

Why isn't a failure to yell "fore" reckless? Why isn't it so far outside the boundaries of what one expects about golf so as to be actionable? In the Hawai`i case, the plaintiff emerged from behind the bathroom building and defendant realized "too late" to shout a warning that plaintiff was likely to be hit. To me, if I hit a ball that's headed towards a restroom building, there is a fairly high likelihood someone will be hit by that ball and seriously injured. Even though I may not know of a specific person likely to be injured, it would seem imperative to call out a generic warning. There are several skiing cases where skiers who went off jumps, unaware that other skiers were in the “landing path”, were nevertheless held to have acted recklessly. Why isn’t that law applicable here?

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