Hackers Rejoice – Court of Appeals rules against injured golfer

                               By Scott Petersen Mediocre golfers across the State let out a collective sigh of relief recently, when the Court of Appeals issued a decision affirming a lower court award of summary judgment to a golfer whose errant shot struck his playing partner in the eye. The case originated in Suffolk County when two physicians, Anoop Kapoor and Azad Anand, were trying to enjoy a round of golf. Kapoor "shanked" his second shot on the first hole into the rough. Anand, without waiting, started up the fairway to look for his earlier-hit ball, at which point Kapoor approached his ball and hit his next shot. Kapoor's shot was again errant, but he did not yell "fore" and his ball struck Anand in the eye, causing retinal detachment and permanent loss of vision. Anand brought a claim against Kapoor for negligence, claiming his failure to warn of the errant shot caused the injury. The Supreme Court dismissed Anand's case, and the Appellate Division affirmed, with one justice dissenting, finding that Anand was not within a foreseeable zone of danger, and also on grounds of assumption of risk. The Court of Appeals affirmed the dismissal, noting that generally the assumption of risk doctrine bars claims for injuries that "are inherent in and arise out of the nature of the sport generally and flow from such participation." While a plaintiff will not be deemed to have assumed the risk of "reckless or intentional conduct or concealed or unreasonably increased risks," the court found that here none of the exceptions applied. Being hit with a golf ball, in the manner in which Anand was struck, the court found, "reflects a commonly appreciated risk of golf." A reminder to always stand behind your playing companion.

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Scott M. Peterson is a personal injury and civil litigation partner with the Albany-based law firm Tully Rinckey PLLC, where he handles cases involving these issues. He can be reached at 518-218-7100 or speterson@tullylegal.com.