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.