Forewarned: sports, torts, and New York's dangerous assumption.

• Author: Pomerance, Benjamin P.

On the morning of October 19, 2002, three friends set out to play a round of golf at a nine-hole course on Long Island. (1) At least two of the men--Dr. Azad Anand and Dr. Anoop Kapoor--were experienced golfers. (2) In fact, they often played together. (3) Yet this day would prove to be the final round of their playing partnership. It would also open the door to yet another round of a battle that has been fought in the New York State court system for decades--a battle that has consistently ended with courts barring recovery for injured plaintiffs under the assumption of risk doctrine rather than taking a more equitable approach under the principles of comparative negligence. (4)

The damage occurred on the first hole. (5) Each man played his first two shots. (6) Then the three players separated and walked to the differing spots where their respective golf balls had landed. (7) Dr. Anand's ball had landed further down the fairway from where Dr. Kapoor's ball had landed. (8) Exactly how much further would later become an object of dispute. (9) Balram Verma, the third member of the threesome that day, would eventually testify that Dr. Anand's ball was approximately twenty feet ahead of Dr. Kapoor's ball. (10) Dr. Kapoor would disagree, testifying that Dr. Anand was standing "at a considerably greater distance in front of him" and claiming that Dr. Anand was positioned at an angle "approximately 60 to 80 degrees" away from the area where Dr. Kapoor planned to hit his shot. (11)

Where Dr. Kapoor intended to hit the ball and where the shot actually ended up, however, proved to be two extraordinarily different locations. (12) When he struck the ball, Dr. Kapoor was aiming toward the green, perhaps even hoping to pick up some lucky spin that would send the ball careening into the hole. (13) He missed miserably. (14) Yet his shot did reach a target, albeit an unintended one. Had Dr. Anand's left eye been the objective of the shot, Dr. Kapoor would have recorded a hole-in-one. (15)

A golf ball weighs no more than 1.620 ounces and has a diameter of not less than 1.680 inches. (16) Plummeting out of the sky at an alarming rate of speed, the compact spheroid carried with it the ability to cause some significant damage. (17) When it struck Dr. Anand in his left eye, it penetrated the outer membranes of the eye, causing a severe injury known as a "ruptured globe." (18) The ball also dislodged Dr. Anand's retina, tearing it away from its underlayer of support tissue. (19) Medical assistance proved to be of no avail. (20) The ultimate verdict was severe: as a consequence of this accident, Dr. Anand will forever be blind in his left eye. (21)

In an act that likely damaged their friendship as rapidly as the golf ball damaged Dr. Anand's eye, Dr. Anand subsequently brought a lawsuit against Dr. Kapoor, claiming that Dr. Kapoor had been negligent in his actions on the golf course that day, and that his negligence had caused Dr. Anand's injuries. (22) At trial, Dr. Anand claimed that he never heard Dr. Kapoor shout any warning when he noticed that his shot was making a beeline for his playing partner's head, (23) a violation of a well-established rule of golf requiring that a player shout a "word of warning" (traditionally the word "Fore!") (24) if he "plays a ball in a direction where there is a danger of hitting someone." (25) Balram Verma, the third member of the playing party, agreed that he also heard no word of warning from Dr. Kapoor. (26) However, Dr. Kapoor disagreed, arguing that he "shouted out a warning" to Dr. Anand as soon as he "realized that the ball was headed in [Anand's] direction." (27)

In addition, Dr. Kapoor testified that he saw nobody standing between his ball and the hole that was the intended target of his shot. (28) However, Dr. Kapoor also acknowledged that he did not know where either Dr. Anand or Balram Verma were standing at the time he hit the shot. (29) His failure to determine the positions of his playing partners--or anyone else on the course--prior to hitting the shot violated provisions in The Rules of Golf, the United States Golf Association's official publication detailing the rules of the game, that directs golfers not to play a shot until they are certain that players in front of them are "out of range." (30) Thomas W. Tatnall, a golf professional furnished as an expert witness by Dr. Anand, noted in his affidavit that "[h]ad Dr. Kapoor taken the time to ascertain where the other players were and warned them, the accident would not have happened." (31) Mr. Tatnall continued on to state that Dr. Anand's injury was due to an unnecessary risk created on the golf course by the failure of Dr. Kapoor, an experienced golfer, to follow the fundamental rules and safety protocols of the sport. (32)

Still, this was not enough for Dr. Anand to win a victory in the trial court. (33) In fact, it was not even enough for this case to reach a jury. (34) Instead, the trial judge granted Dr. Kapoor's motion for summary judgment, ruling that although the injury was the result of a "terrible accident," it was an injury that arose from a risk that is inherent to the game of golf: namely, being struck by a wayward shot. (35) By merely stepping onto the golf course, according to the trial court's ruling, Dr. Anand had assumed the risk of this injury occurring, and thus was barred from recovering even a penny in damages. (36)

On appeal, the Second Department of the New York State Appellate Division affirmed the trial court's order, with the majority determining that Dr. Kapoor did not owe a duty to warn Dr. Anand of the shot and Dr. Anand had assumed the risk of such an injury by voluntarily taking part in the sports And on December 21, 2010, the New York State Court of Appeals issued an opinion affirming the Second Department's decision, holding--in a scant sixteen-sentence memorandum--that Dr. Anand's injury reflected "a commonly appreciated risk of golf' naturally assumed by all participants in the sport. (38)

To Dr. Anand, the decision may have come as a bitter shock. To anyone who has followed the opinions of New York's judiciary in personal injury cases involving sports over the past century, however, the outcome in Anand v. Kapoor was simply par for the course. (39) In the vast majority of negligence suits arising out of injuries not only from the game of golf, but also from a pantheon of other sports ranging from skiing to horse racing to donkey basketball, New York courts have cast aside crucial questions of fact with alarming frequency, instead preferring to grant summary judgment under the often-criticized assumption of risk doctrine, preventing the matter from ever reaching the hands of a jury. (40) The attitude of the state's courts towards plaintiffs in these matters over the past several decades--including cases which, like Anand v. Kapoor, leave plenty of opportunity for reasonable minds to differ about where the true fault of the injury lies--has been extremely negative. (41)

This article contends that New York State courts have failed to properly address the true issues in these cases, and have instead taken a dangerous escape route by applying the assumption of risk doctrine in almost blanket fashion. More specifically, this article investigates a more reasonable alternative for courts to apply in the majority of sports

negligence cases, and puts forth a new rationale that courts can use in deciding these matters.

Part I of this article examines some of the many golf-based cases over the past century where New York State courts have dismissed complaints on assumption of risk grounds, despite the presence of bona fide questions of fact. Part II employs a similar analysis and discussion regarding New York State cases in a wide variety of other sports. Part III outlines some of the most common critiques of the assumption of risk doctrine and looks at how these critiques apply in the context of a sports negligence case. Part IV proposes that these cases could be more equitably resolved by employing a different doctrine: that of comparative negligence, in which a jury is permitted to apportion fault among the parties based on their findings of fact, and looks at the ways in which assumption of risk has already been all but eliminated as a separate doctrine by New York State lawmakers.

Lastly, Part V presents a possible balancing test that courts could employ in evaluating sports participation personal injury cases under a comparative negligence framework. By considering six factors--what risks did the plaintiff take beyond mere participation in the sport, what risks are customarily understood to exist in the sport, what rule violations (if any) were committed by either party in contribution to the injury, what character of conduct is typically owed by one participant to another in this sport, what experience level did the plaintiff and defendant have in playing the sport, and what measures could the defendant have taken to avoid this injury to the plaintiff--courts will be able to determine whether the case should be discarded or whether it should be given over to the jury to apportion damages based on relative degrees of fault. Proper application of this test will enable courts to guard against the feared "chilling effect" on vigorous participation in sporting activities while still enabling plaintiffs to recover something when defendants unreasonably place them in a position of harm.

1. LOOKING DOWN THE FAIRWAY: AN EXAMINATION OF HOW NEW YORK STATE COURTS HAVE RESOLVED PARTICIPANT PERSONAL INJURY CASES IN THE GAME OF GOLF

   Long before Dr. Anand and Dr. Kapoor ever set foot on a golf course, the courts of New York State were faced with questions about how to resolve issues of injuries on the links. (42) In fact, the state's judiciary has faced a minor deluge of cases on the subject over the past eight decades. As the examples in this section will show, these cases have almost exclusively...