Ohio Practical Business Lawyer & Attorney : Teri Rasmussen : Lane Alton & Horst Law Firm : Commercial Law, Creditors, Business Formation : Columbus, Central Ohio

With it being April Fools' Day and all - and being far enough removed from the historic near blizzard that dumped 20 inches of snow here in Columbus a few weeks ago that one can actually start to believe Spring is here -  it seems appropriate to honor the approaching golf season in Central Ohio by taking a look at where golf (and golfers) seem to meet the Law.  And the consequences thereof (come on, did you really think I'd resist the temptation to use the legalese). 

Suppose you and your foursome are out in the middle of the back nine.  Playing ready golf, one of your golfing companions has gotten further up the fairway and is now waiting for you to hit.  She's off to the right and certainly nowhere near where you want the ball to go.  Do you ask her to move just to be sure you don't hit her or do you go ahead and hit?  What happens if you do hit her?  Are you legally responsible then?

Assumption of Risk = Recklessness, Not Just Negligence, Required for Liability

In Ohio, the seminal (i.e. case which sets the standard) case regarding golf accidents is Thompson v. McNeill, 53 Ohio St.3d 102, 559 N.E.2d 705 (1990).  A foursome of women reached the twelfth hole at a private country club.  Lucille  McNeill's second shot went to the right, landing in a water hazard and JoAnn Thompson went to look for the ball.  McNeill chose, as she could under the rules of golf, to hit another ball from her same position.  When McNeill hit her third shot, Thompson was still near the water hazard, about 15 yards away, but at angle of nearly 90 degrees  from the intended path of the ball.  McNeill shanked the ball and hit Thompson in the right eye, causing severe injury.  It wasn't clear whether McNeill yelled "Fore" as golf etiquette requires.

The Ohio Supreme Court held that to be liable, McNeill had to have acted recklessly or with the actual intent of hurting Thompson.  Mere negligence was not enough because when golfers enter the course, they have "assumed the risk" that inherent "foreseeable" accidents or injuries might occur.  Because "a golfer accepts the risk of coming into contact with wayward golf shots on the links" and "[s]hanking the ball is a foreseeable and not uncommon occurrence in the game of golf", the Court ruled in favor of McNeill, the defendant.

Rules to Play By 

So against this backdrop, here are some rules to think about next  time you play a round:

1. Because of the "assumption of risk" perspective, if you do get hit by a ball on the golf course, whether by someone in your own foursome, or another group, it will probably be difficult to convince a court that you should be compensated for your injuries by whoever hit you.
2. If at all possible, you really should yell "Fore" and not just because it's customary to do so.  In Thompson, the Ohio Supreme Court commented:
   • "If for example, a golfer knows another is within the line of flight of his shot and fails to offer the customary warning of "fore", liability might accrue.  Such conduct could amount to reckless indiference to the rights of others."  
3. If you are going to hit someone, it's way better to do it with a really bad shot - that way it's clearer that it shouldn't have been forseeable, i.e. reckless.  Maxwell v. Rowe, 1998 Ohio App. LEXIS 4396 (9th App. Dist.) ("the fact that Jeramie was near the green when he was struck is evidence that Todd's ball went where Todd intended it to go.")
4. While most states apply the same sort of recklessness standard as Ohio, a few - Illinois to be specific - only require the injured golfer to prove negligence to impose liability on the golfer responsible for hitting the errant golf ball.  Zurla v. Hydel, 289 Ill. App.3d 215, 681 N.E.2d 148 (1st App. Dist. 1997).  So, if you're playing golf in Chicago, be especially vigilant about not hitting other golfers. 

And now,

A Little About Me and Golf (and Why It Matters)

I've been playing golf for a few years now, mostly just for fun but occasionally to entertain clients and possible referral sources for my business, commercial, and transactional law practice.  I am by no stretch of the imagination REMOTELY  good, but I enjoy it (heck I can admit it, I'm addicted to it) anyway.  How do I know that?  Well, I've managed to rationalize my golf habit as an extremely efficient use of time.  The way I see it, when I golf, particularly with clients or prospective clients, I am simultaneously accomplishing:

• Socializing (which is fun and essential to staying a well rounded normal adult)
• Business development (which is essential to my career happiness as a successful lawyer)
• Exercise (which is essential to basic physical health and well  being as a human)
• Productive release of my natural competiveness and enhancement of my ability to know myself (the cliche is that golf is life and that what happens on the golf course really is indicative of behavior in "real life")  

Socializing.  Through golf, I've met some terrific folks and made some really good friends, especially through my involvement in the Columbus Chapter of the Executive Women's Golf Association.  So I definitely appreciate the socializing aspect of the golf experience.  I've also noticed that it can be a real ice breaker when you're faced with meeting and interacting with folks you haven't met before in a business/professional situation.  Regardless of ability, ALL golfers feel frustration at times and every golfer has a favorite course.  So if I know (or suspect) my counterpart plays golf, suddenly it becomes easy to establish a productive working relationship within which to do business.  And that HAS to be good for all concerned.

Career and Business Development.  One of the nice things about golf and being a woman in the business world is I don't actually have to play all that well to have golf work for me (which in my case is DEFINITELY a good thing) in a business context.  As I mentioned, even just talking about it helps me establish common ground with people with whom I might otherwise have difficulty establishing a connection.  And there are an awful lot of men who really aren't that good who feel very comfortable playing with me.  In addition, as any avid golfer will tell you, golf is really about being competitive with yourself which allows golfers of different abilities to still have a good time playing together. 

Perhaps the greatest utility of golf in the business development department is that you get 2-5 hours of uninterrupted time one-on-one time with the client, referral source, or prospect in a relatively relaxed environment to become acquainted on the personal level that really matters most.  How many lunches would you have to do to get to the same place? 

Finally, did I mention it's FUN! - which makes everyone feel more postive towards a continued relationship with one another.

Exercise.  Ahhh..... EXERCISE - I know I need to do more of it, but I can never seem to establish a "gym" routine.  When I play nine holes, I frequently walk.  And even when I ride when playing a full eighteen holes, I do get some exercise...... painlessly.

Introspection.  That stuff about Golf = Life -  well, it's true and I learn a great deal about my personal strengths and weaknesses almost every time I play. 

Now, if only it would get warm, or at least warmer....

• Email This
• Print
• Comments
• Trackbacks

To me, one sure sign that Spring has finally arrived at long last is baseball's Spring training.  And nothing says Spring more than major league baseball's Opening Day!  Which happens next MONDAY!!!!!!!  So in honor of the return of professional baseball, it seems appropriate to remind everyone that if you're going for the seats close to the field to impress that customer or client, make sure you keep an eye out for errant balls and broken bats. 

Once you enter the ball park, for the most part, you have "assumed the risk" of getting hit by a foul ball or flying broken bat - just like it says in that tiny print on the back of your ticket.  (Ohio cases actually think having that warning in microscopic type on the backside of your ticket is important.)  As the Ohio Supreme Court said way back in 1925 in Cincinnati Base Ball Club Co. v. Eno, 112 Ohio St. 175, 180-81: 

it is common knowledge that in baseball games hard balls are thrown and batted with great swiftness, that they are liable to be thrown or batted putside the lines of the diamond, and that spectators in positions which may be reached by such balls assume the risk thereof.

More recently (just last season, in fact), the Ohio Court of Appeals was asked to consider whether the presence/performance of The Famous San Diego Chicken (view video of Chicken at work) during a Dayton Dragons (Reds AA farm team) game was sufficiently distracting to negate this "assumption of risk" principle.  The injured spector, who was hit by a foul ball, sued both the baseball club and The  Famous San Diego Chicken (who interestingly is not further identified in the case).  In holding that "assumption of risk" still applied, the Court of Appeals opined in Harting v. Dayton Dragons Professional Baseball Club, LLC, 171 Ohio App.3d 310, 870 N.E.2d 766, 2007 Ohio 2100 (2nd App. Dist. (2007):

This argument ignores the fact that team mascots and their antics are a common phenomena, and mascots are normally present during the entire course of the game.  In many cases, the team mascots are more popular than the team itself.  Simply because the Chicken appeared while the game was being played does not absolve Harting from the duty to protect herself from the ordinary risks inherent in the sport....

Given the prevalence of costumed team mascots at sporting events such as baseball, football, or basketball games, it is perfectly reasonable for a spector at one of those games to expect to observe said mascots during the normal course of the game.  The fact that Harting was allegedly distracted by the Chicken during the bottom of the sixth inning when she was struck by the foul ball did not negate her duty to pay attention to the action taking place on the field.

I don't know about you, but it wouldn't matter how very attentive I was to action on the field - when that foul ball or broken bat fragment comes zipping my way, my reflexes just aren't that fast.  I think what's really happening is that courts look at the situation and essentially say, "Hey, it was an ACCIDENT.  S*** happens."

In at least one part of the world - specifically Jersey - this "baseball rule" may be slowly crumbling.  In Masionave v. Newark Bears Professional Baseball Club, Inc., 185 N.J. 70 (2005), the New Jersey Supreme Court drew a distinction between "the stands" and other parts of the stadium such as concourses.  For commentary on this case reprinted by Law.com, click here. According to the article, in Japanese baseball stadiums, the entire lower deck of seats is screened.  

Earlier this year, Ryan McKeen of A Connecticut Law Blog (which describes itself as "Thoughts on Connecticut Law with a Side of Baseball") posted on a similar case relating to "Foul Ball Liability in Connecticut (He's Out Part 2)".  Ryan's take on all this? It may mean netting coming to a ball park picnic area near you soon.  Big SIGH!!!!!!

In the old days, the Cincinnati Reds (less than 2 hours south of Columbus) had the honor of leading off every season by playing the very first game in the majors -  always at home.  Even if other games were scheduled for the same day, NO ONE started play before the Reds' game.  Why?  Because the Cincinnati Reds are the oldest team in MLB. 

As a result, Opening Day in Cincinnati is a HUGE holiday - there's  entertainment and even the great Findlay Market Parade (see video of the 2007 Opening Day Parade).  In recent years, other teams have started play earlier in the day than the Reds, but Opening Day is still special in Cincinnati.  Here's the info about 2008 activities.  

So as Spring turns to Summer and you decide to go out to the old ball park, heads up!  Unless of course you're on the concourse in Connecticut or Jersey.

• Email This
• Print
• Comments (1)
• Trackbacks (1)