Wade Clark Mulcahy LLP

<p style="text-align: justify;">As the weather gets warmer, it appears that more people are participating in outdoor activities. This leads to the inevitable injury and the, you guessed it, subsequent lawsuit.</p>
<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2019/05/Krych-v.-Bredenberg.pdf">Krych v. Bredenberg</a><a href="https://www.wcmlaw.com/wp-content/uploads/2019/05/Krych-v-Bredenberg.pdf"></a>, </em>the plaintiff was golfing with friends when he was struck by a golf ball hit by the defendant, who was playing in the following group.  The defendant moved for summary judgment, arguing assumption of risk.  The lower court denied the motion.</p>
<p style="text-align: justify;">In affirming the decision, the Fourth Department held that a plaintiff ‘will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks.’ The appellate court noted that the defendant admitted that he teed off prematurely and that the plaintiff was still in the fairway before he yelled ‘fore.’</p>
<p style="text-align: justify;">The Court admitted that “although the object of the game of golf is to drive the ball as cleanly and directly as possible toward its ultimate intended goal (the hole), the possibility that the ball will fly off in another direction is a risk inherent in the game.”  Moreover, the mere fact that a ball does not travel in the intended direction, does not establish a viable negligence claim.  Nevertheless, in the instant action, the Appellate Division found that the defendant failed to exercise due care when he teed off too soon and this action created a triable issue of fact as to whether the defendant unreasonably increased the risk of harm to the plaintiff.</p>
<p style="text-align: justify;">Simply put, the plaintiff could not have assumed the increased risk created by defendant’s reckless conduct.</p>
<p style="text-align: justify;">Thank you to <a href="mailto:pvitale@wcmlaw.com">Paul Vitale</a> for his contribution to this post.</p>