Thursday, December 30, 2010

The Foreseeable Zone of Danger

Many of my followers may be familiar with the personal injury case of Drs. Kapoor and Anand. The two doctors were frequent golf partners and were playing on the Dix Hills Park Golf Course, a nine-hole Long Island, New York course. After hitting their second shots on the first hole, a 283-yard par-4, each player went looking for his ball. Dr. Anand's ball was in the fairway and Dr. Kapoor's ball was in the left rough. The fact that neither player was on the green in two strokes on a 283-yard par-4 should tell you something about the quality of play.

It is hard to imagine what happened next. Dr. Kapoor "shanked" his next shot and hit Dr. Anand right in the eye blinding him in one eye. The third player in the group testified that Dr. Anand was about 20 feet away from Dr. Kapoor and about 50 degrees away from the intended line of flight. Dr. Kapoor testified that Dr. Anand was farther away and at an angle of 60 to 80 degrees. The court held that Dr. Anand was not in the "foreseeable zone of danger".

The trial court dismissed Dr. Anand's lawsuit holding that one of the inherent risks of playing golf is that you may be hit with a golf ball and every golfer assumes that risk within reasonable limits. The evidence seemed to indicate that Dr. Kapoor did not provide advance warning that he was about to hit his shot or yell "fore" once he realized the shot was off-line and heading toward Dr. Anand. Some may argue that Dr. Anand assumed the risk of injury simply by proceeding in front of Dr. Kapoor. Professional golfers always stand behind or to the side of the golfer hitting his shot, but it is commonplace and oftentimes "required practice" at most golf course for golfers to play "ready golf" and each to go to his respective golf ball and wait to hit. This speeds up play. Of course, if the forward golfer's ball is in the line of flight of the other golfer the forward golfer waits outside of the line of flight and the "foreseeable zone of danger" and oftentimes behind a tree as protection.

The New York State Court of Appeals upheld the trial court's dismissal of the lawsuit holding that a person participating in a sport consents to certain risks that are inherent in and arise out of the nature of the sport generally and flow from such participation, but that all participants owe a duty of care to their co-participants. In order to determine liability, the court must weigh the duty of care against the assumed risks. In this case, Dr. Kapoor's failure to warn in advance did not amount to intentional or reckless conduct, and the possibility of being struck by a ball reflects a commonly appreciated risk of golf. Implicit in the court's holding is that the plaintiff was not in the "foreseeable zone of danger".

The plaintiff's attorney argued that the "foreseeable zone of danger" differs with the skill of the golfer and there were disputed questions of fact in this case so the case should not be dismissed without a trial. I agree with the plaintiff's attorney. Although it puts a greater burden on the golfer and the court, there is no question that the "foreseeable zone of danger" playing with a professional golfer or even Chad Feldheimer is much small than playing with me. Chad is about a 4 handicap golfer. When he is hitting a 150-yard shot his "foreseeable zone of danger" is practically zero assuming the other player is not standing next to the flag stick. On the other hand, from 150 yards my "foreseeable zone of danger" is probably 10 yards on either side of the green and I have a duty to provide advance warning to any person in my "foreseeable zone of danger" before hitting (I hope this post does not come back to bite me someday!). That does not mean that from time-to-time we will not hit an errant shot outside of our respective "foreseeable zones of danger", but it would be unusual. Based on what little we know about Dr. Kapoor, I would say that his "foreseeable zone of danger" from 150 yards is probably anywhere in front of him. Theoretically, his "foreseeable zone of danger" diminishes as he gets closer to the green so whether Dr. Anand was in Dr. Kapoor's "foreseeable zone of danger" should have gone to trial.

A copy of the Court of Appeals memorandum decision in this case is available at the following link: Anand v. Kapoor, 222, New York State Court of Appeals.

Wednesday, December 29, 2010

What Were We Thinking!

I have been hiking with SO and friends almost weekly and walking the golf course. I talked my friend the Gardener into walking the golf course and he bought a pull cart for his clubs. Chad Feldheimer, the young gun, refuses to walk. But the benefit for me is that I put my clubs on Chad's cart and I walk without having to carry my clubs. It is almost like having a caddy!

A few weeks ago, the Gardener and I walked Papago Golf Course, which is Phoenix's best municipal golf course. We usually play from the blue tees, which are 6,800 yards, but for some reason we started playing from the black tees, which are over 7,300 yards and once we realized what we were doing, it was too late so we stayed the course (no pun intended). From the black tees, Papago is a real man's test of golf. There are six par-4s over 440 yards. The par-5s average about 550 yards and three of the par-3s are over 235 yards! The course rating is 75.0 and the slope rating is 130.

We teed off on Sunday afternoon at about noon and finished in less than 4 hours walking. One single playing in a golf cart played through and otherwise we did not run into anyone else on the course or have anyone coming up from behind. The weather was absolutely perfect -- about 75 degrees with sunny skies and no wind. Papago used to be the busiest municipal golf course in Phoenix -- about 100,000 rounds per year! Golfers would park in the parking lot at 4 a.m. in the morning on the weekends in order to get a weekend tee time. The course got so much play that it fell into disrepair. In the mid-2000s the City of Phoenix and the Arizona Golf Foundation (an affiliate of the Arizona Golf Association) jointly undertook renovation of the golf course to restore it to its original luster. The Foundation did a great job on the golf course renovations but ran out of money before it could complete the new clubhouse (after razing the old clubhouse). A double-wide trailer stands as the clubhouse until there is enough money in the City budget to build the new clubhouse. However, in order to pay for the renovations, the City and the operator raised the in-season daily fee rate to $50 plus a cart fee, which out-priced a lot of the muni-golfers. Although Papago is a good as, if not better than, most of the semi-private and resort courses, golfers that are paying $65+ per round are generally not willing to pay that amount for a municipal course unless it is Bethpage Black or Torrey Pines.

Papago is a really well-designed walking course. You walk off of the green and the next tee box is usually within 20 to 30 yards -- unless you are playing from the black tees. We dropped our golf bags at the blue or white tee boxes and then started looking for the black tees. In some cases we needed binoculars to find the black tees. We then trudged back 50 to 90 yards from the front tees to our tee box. Sometimes the beginning of the fairway looked so far away I thought there was no way to reach the fairway, let alone reach the green in regulation. By the time that we got to the 18th hole, which is 464 yards long and about 50 yards back from the white tees, we were dragging and just trying to get to the clubhouse (or double-wide trailer) without too much damage. The Gardener shot an 87 and I shot an 88. With a 75.0 course rating and a 130 slope rating, my differential was 11.3, which is one of my best rounds of the year.

Tuesday, December 28, 2010

Heresy! A 12-Hole Round of Golf

I kind of lost interest in my blog for the last month or so. I have been playing a lot of golf and the "World Of" trip to St. Andrews is coming together so there is a lot to talk about, but it is hard to find an hour or more to write a good post. But since my son Tyler and the Joker are pining for more posts here goes.

As the days get shorter and the weather gets colder (yes, it does get cold in Arizona; we are in the Sonoran Desert!), the daily window for playing 18 holes of golf dwindles. I played four times in a row in a three week period recently and did not once finish 18 holes! One time playing at Aguila Golf Course the weather was so nasty (cold, windy and drizzling) that the Gardener and I quit after 14 holes. Another time playing at Phoenix Country Club with Fred Flintstone we started after 2 p.m. and simply ran out of daylight. At Stonecreek Golf Club, Chad Feldheimer and I were supposed to tee off at 11:30 and we were delayed for an hour because of early-morning frost on the greens and then simply bad course management and after 4 hours and 30 minutes we quit on the 14th hole. Finally, playing with Digger at Moon Valley Country Club, we simply miscalculated how quickly we could play 18 holes and did not finish before darkness.

These rounds got me thinking about why golf is 18 holes instead of 12, 14 or 20 holes. As usual, everything in golf revolves around St. Andrews. Around 1764, St. Andrews converted from 22 holes to 18 holes (actually St. Andrews had 11 holes and the golfer played each hole twice). In 1858, the Royal & Ancient Golf Club of St. Andrews issued new rules for its members; Rule 1 stated "one round of the Links or 18 holes is reckoned a match unless otherwise stipulated". However, I like the legend that 18 holes aligns perfectly with the number of shots in a fifth of scotch -- one shot per hole.

I know it is heresy to talk about playing less than 18 holes of golf, but the idea of playing 12 holes in 2 1/2 hours is intriguing. While spending 5 to 6 hours at the golf course (including warm-up time and a round at the 19th hole) sounds fine to me, there are a lot of people with busy lives that do not want to spend the entire day at the golf course. For a while it would be cool to shoot in the high 50s or low 60s and even break the fabled 59! Existing golf courses may have to be reconfigured a bit, but the courses could either rotate out one 6 for maintenance or players could play two of the three 6 hole layouts. New courses could be built on smaller parcels of land to accommodate 12 holes instead of 18 and would require less water and maintenance. Assuming a course reduced its daily fee, it could make up the difference with lower operating costs and more rounds.