A Defendant Denied Summary Judgment for Hitting A Golf Ball Too Well (NY)
In New York, it is well-settled an individual who chooses to participate in a sport consents to certain risks which are inherent in the nature of the sport, a principle generally referred to as the Assumption of Risk doctrine. In golf, specifically, courts have explained that mishit golf balls flying in unintended directions fall within the scope of this doctrine, as such errors are a part of the game.
However, in Krych v Bredenberg, the Fourth Department of the Appellate Division unanimously affirmed the denial of the defendant’s summary judgment motion in a case where he struck plaintiff with a golf ball on a golf course. Bredenberg claimed his playing partners had teed off before him and plaintiff’s group was playing on the fairway 100 or 150 yards beyond where his partners’ drives had landed, and that his drive happened to be a particularly prodigious one and struck plaintiff.
The Court found a question of fact and affirmed denial of summary judgment, as plaintiff’s testimony conflicted with defendant’s as to the distance of the shot at issue. Moreover, the Court observed Mr. Bredenberg was a very skilled golfer, the ball was struck straight and true, and plaintiff was visible to him, potentially within his range.
The deposition testimony was key here, and while Assumption of Risk is a powerful defense tool, one must make sure discovery supports it if you are to plan for a successful summary judgment motion.
And, ironically, Bredenberg would likely have been better off if he were a worse golfer and had simply shanked his drive.
Thank you to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions.