Assumption of the Risk

Perhaps the term “dance club” is a misnomer here; we’re really talking about moshing (also called slam dancing) which is an informal term referring to dancing to music in a violent manner by jumping up and down and deliberately colliding with others.

Sounds like a sure-fire way to get hurt and that’s just what happened in two cases that have now made their ways up to the New York appellate courts. Each, though, came to a different result.

In one case, a 36 year old concertgoer, David Schoneboom, was injured at a club in Manhattan listening to his favorite group, “The Crumbsuckers.” Earlier in the evening he had watched from the balcony performances from the first two groups: “Kill Your Idols”  and “Subzero.” Why the balcony? Simple. Schoneboom said that it was too violent on the floorwhere he saw moshing was ongoing.

Nonetheless, when his favorite group came on to play, he admits he went down to the floor near, but not into, the area where the moshing was taking place. And that’s when he got shoved from behind into the side of his knee and ended up with a torn anterior cruciate ligament and a torn meniscuswhich required reconstructive knee surgery.

Schoneboom sued the club claiming that it was the club’s negligence in failing to prevent the violence which caused his injury. Not so, said both the trial judge who dismissed the complaint and the appellate court which upheld the dismissal in Schoneboom v. B.B. King Blues Club & Grill.

As we mentioned, here, the lower court determined that Mr. Schoneboom had assumed the risk of being injured,  because he fully appreciated the risk of colliding with a slam dancer and nonetheless elected to place himself in close proximity to that activity.

In the other recent appellate court case involving injuries related to moshing, a 15 year old boy was injured at Club Warsaw in Brooklyn when attending a concert by the group “Senses Fail.” The boy, Elliot Rishty, claims he placed himself 4-5 rows away from any moshing but that the mosh pit spread and he was then elbowed or struck in the nose by a moshing participant. He sued.

The trial judge found that the alleged occurrence was not foreseeable and therefore dismissed the complaint. The appellate court, though, in Rishty v. DOM, Inc., reversed and ruled that a trial should be held to determine whether the defendant should have been aware of and controlled the conduct of its patrons and, if so, whether the failure to do so was a proximate cause of Elliot’s injury.

In an unavailing argument, the defense urged that even if the spread of the mosh pit violence were foreseeable and controllable, Elliot had assumed the risk of any alleged moshing that may have been involved in causing his injury.

The decisions in these two cases, coming within two weeks of one another by two different appellate panels, appear to be irreconcilable. So, we contacted the attorneys, obtained facts not disclosed in the decisions and reviewed the appellate briefs of the parties.

Here are some of the factors that appear to distinguish the cases from one another

  • Martin Schoneboom was 36 years old at the time, had participated in moshing at over 30 concerts and saw violent moshing escalating throughout the evening before deciding to stand near the mosh pit.
  • Elliot Rishty was only 15 years old at the time, there’s no evidence he’d ever participated in moshing and it appears that moshing may have been ongoing at his concert for only 15 minutes or so before he was struck.

When there are important areas of law on which different appellate department panels rule opposite one another, then New York’s highest court, the Court of Appeals, may decide to accept an appeal in one of them so as to resolve the issues for the entire state and bind all appellate divisions (there are four of them).

In the two  cases discussed here, it’s unlikely the Court of Appeals would accept such an appeal. The issues as presented in these two cases do not appear to be that far-reaching and the different factual scenarios may explain the contrary holdings.

Rishty v. DOM, Inc. is now headed for trial. We will report on future developments – either a settlement or a trial verdict – and we will continue to explore related assumption of risk case decisions as they are issued.

I know I was a bit steamed last week when I took sides against a plaintiff and her lawyers for suing seven different parties after she was hit by a foul ball at a Hudson Valley Renegades minor league baseball game while seated in a left field picnic area in the stadium. Here, I suggested that Judith Rosenfeld’s lawsuit should never have been brought – she shouldn’t have been allowed in the batters box.

While I sympathize with the serious eye injury sustained by Ms. Rosenfeld, her lawsuit had no basis being brought in view of prior court rulings, some from the highest court in New York (the Court of Appeals) and one against the same defendants on very similar facts.

Like it or not, the law in New York is clear: a baseball game spectator who chooses to sit in an area of the stadium that’s not protected with a net or fence (when the area behind home plate is) will have no viable lawsuit when struck and injured by a foul ball. And those were the facts in Rosenfeld v. Hudson Valley Stadium Corp.

On that basis, the trial judge threw out her lawsuit, then the appeals court upheld the dismissal. That surely should have been the end of this saga. It wasn’t.

This week, Rosenfeld’s lawyers filed a motion for reargument or leave to appeal to the Court of Appeals. No new argument is set forth. As with her other attempts, Rosenfeld will strike out again.

This time, though, she should be sanctioned by the court and forced to pay the legal fees incurred by the defendants. Rarely used, such a remedy for frivolous litigation is specifically provided for under Section 130-1.1 of the Rules and Regulations of the Judiciary Law of New York. And recently, an appellate court  invoked this rule to order a plaintiff and its attorney to pay the legal fees of their opponent in a case in which they were held to have pursued a frivolous appeal (Yenom Corp. v. 155 Wooster Street, Inc.).

This is not about punishing a losing plaintiff; rather, it’s about fairness to all concerned. Justice for everybody. Suing seven parties to begin with (the engineers and architects who designed the stadium were even included) was bad enough but forcing all those parties through appeal after appeal, incurring many thousands of dollars in legal fees and related costs is unfair. They have repeatedly asserted that there was no basis for the suit in view of the substantial precedent. And they have been right time and again. So what about fairness to them? The defendants should be made whole insofar as their legal fees are concerned. That’s justice. That’s fair.



It’s got to stop at some point. Some "fans" are trying to ruin our national pastime – the game of baseball. Spectator lawsuits have  been going on for quite some time, as we discussed just last week, here. Now, there’s a brand new case and I’ll tell you all about it.

Look, I’m a trial lawyer and the only cases I handle are those in which someone caused serious traumatic injuries. And in this new case, Judith Rosenfeld suffered an orbital fracture requiring surgery and some permanent vision loss when she was hit by a foul ball while a spectator at a baseball game. I can get a jury to award hundreds of thousands of dollars (if not more) for pain and suffering for those types of injuries. There’s a catch, though. Someone other than my client has to be at fault! That’s why I’d have declined Rosenfeld’s case had she come to me for representation. There was no one at fault.

Here’s what happened. Ms. Rosenfeld went to Dutchess County Stadium in Wappingers Falls, New York on August 5, 2006 to watch the home team Hudson Valley Renegades (Major League Baseball’s minor league affiliate of the Tampa Bay Rays) take on the Vermont Lake Monsters. The Renegades won, 3-2.

It’s a beautiful ballpark and here’s its exterior on opening day this year:

Plaintiff was struck by a foul ball while seated in a picnic area in the Rookies Retreat section:

As you can see, Rosenfeld’s seat was in the area furthest away from home plate down the left field line. It must have been quite a hard hit ball to cause a facial fracture.

The real story here began a year later in 2007 when Rosenfeld lawyered up and sued. Her case was tossed out on July 15, 2008 when a judge dismissed all of her claims without a trial. The judge stated that there was sufficient protective netting behind home plate which extended up the foul lines to the dugouts and also there were public announcements made advising fans that they could be reseated behind the nets if they wished. Rosenfeld did not wish.

After the dismissal, Rosenfeld appealed and this week in Rosenfeld v. Hudson Valley Stadium Corp. the appeals court agreed that the case had no merit and was properly dismissed (lower court’s decision here). The four judge panel stated that the proprietor of a ball park need only provide reasonable screening for the area of the field behind home plate and, therefore, fans injured by foul balls in other areas do not have viable claims.

Many lawsuits have been asserted over the years for foul ball injuries and the issues were long ago resolved by the highest court in New York – the Court of Appeals  – when it ruled in Atkins v. Glens Falls City School District (1981) that a lawsuit for a spectator’s foul ball injuries will not stand when there’s a reasonable backstop or netting behind home plate and the fan is injured elsewhere in the park.

In 1984, the Court of Appeals reiterated the rule in Davidoff v. Metropolitan Baseball Club, Inc. and stated that it applied to the dismissal of a lawsuit by a 14 year old girl who lost vision in an eye when hit by a foul ball while seated in a box seat near first base behind a three foot fence.

In yet another case, a season ticket holder, Pianka Ray, M.D., was struck by a foul ball while in his box seat near first base beyond the home plate nets. His case, like all the others before him, was dismissed by the trial judge. He appealed, though, claiming that his case was different from all of the others in that he was distracted by the ball club’s team mascot. Here’s the kicker: this was a case involving the very same stadium as in the Rosenfeld case. Dismissal of Dr. Ray’s case was affirmed in 2003 in Ray v. Hudson Valley Stadium Corp. with the appeals judges stating plainly that the provision of home plate area netting fulfills a ballpark’s obligations and a fan injured in seats beyond the netting assumes the risk of an injury and has no viable lawsuit.

In light of the Atkins, Davidoff and Ray cases, how is it that Judith Rosenfeld could sue for her injuries? Simple. One can always sue – start a lawsuit – and there are few if any real penalties for bringing on a frivolous lawsuit.

Rosenfeld’s suit was – as it should have been – thrown out, but what of all the costs, time and aggravation suffered by the defendants? There were seven different parties sued, including the stadium owner, the team, the engineers and architects who designed the stadium and even the local chamber of commerce. Each had to hire lawyers and investigators and devote substantial unprofitable time to defending the case. Some of those lawyers are very experienced, successful and probably charged pretty hefty fees. Who reimburses the defendants after they win? No one.

This is the kind of case that will cry out for a loser pays rule to be enacted and one of these days, if cases like this and Nutley v. SkyDive the Ranch (the notorious skydiver’s broken fingers case discussed here ) continue to be brought and dismissed, then we may well see legislative action. Many have been discussing for it for years, for example, Walter Olson at Overlawyered.

I hope I have not given the impression that I don’t sympathize with Ms. Rosenfeld. I do – insofar as she was injured, I have a great deal of sympathy for her; however, when Roseneld (and her lawyers) claimed that seven different parties were at fault and sued each of them, she was wrong. And that’s a fact. Actually, that’s the law too.

New York courts have long held that people taking part in a sport or recreational activity are deemed to consent to those commonly appreciated risks or injuries that are inherent in and arise out of the nature of the sport generally. In other words, most sports injury cases will be dismissed because of the doctrine known as assumption of risk.

Previously, here, we discussed the difficulty of winning sports injury lawsuits in New York brought by schoolboys in a wrestling match and a floor hockey game as well as a spectator at a soccer game. Now, we look at lawsuits by players and fans injured during baseball games and practices. These plaintiffs fare just as poorly as those in other sports.

The most recent decision in a baseball case dealt with the claim by a spectator at a professional game at Keyspan Park, the minor league field of the New York Mets. On July 22, 2005, Gerard Elie, a season ticket holder with seats 15 feet off the third base line, was watching the visiting New Jersey Cardinals warm up – they were swinging bats and hitting baseballs to other players. Somehow, one of the players’ bats flew into the seats and struck Elie in the nose. He sued. He lost. In Elie v. City of New York, the judge granted the summary judgment motion by the defendants (the city as owner of the park, both ball clubs and the player himself). He stated that Mr. Elie was a seasoned spectator of baseball and that he assumed the risk of many dangers, including the danger of being struck by a loose bat. Case dismissed.

By the way, if you wonder why at major league ballparks the coaches and ball boys often hand a used played ball to fans clamoring for them instead of tossing the ball, it’s because of people like Giacinto Pira, a 35 year old fan in the third row at a New York Mets game back in 1999. He wasn’t paying attention when a Mets pitcher tossed a ball to some fans, one of whom tipped the ball causing it to hit Pira in the nose. The ballplayer apologized and gave Pira an autographed ball. Pira then sued the Mets! And after having his case dismissed by the trial judge on assumption of risk grounds, Pira took it a step further and appealed. He lost again, in Pira v. Sterling Equities, Inc., d/b/a The New York Metropolitans, and now you know why at most stadiums the fans have balls handed to them – so the teams don’t have lawsuits thrown at them.

This lucky fan got a souvenir, wasn’t hurt and didn’t sue anyone:

In another recent case, a New York appeals court upheld the trial judge’s dismissal of a case brought by a 15 year old boy for injuries he sustained during a Little League practice. Thomas Goodwin placed himself between two ongoing games of catch when he was struck on the forehead by a ball thrown by one of his teammates. In Godwin v. Russi, the court noted that Thomas, an experienced baseball player, a member of his high school team, arrived late to practice and walked, without putting his glove on, into the area other players were already warming up and tossing the ball around.

In a case that aroused a great deal of interest this summer, a Staten Island boy’s mother sued on his behalf for knee injuries the boy sustained sliding into second base during a Little League game. The case, Gonzalez v. New Springsville Little League (Supreme Court, Richmond County; Index # 101879/07), was settled for $125,000 and has generated a great deal of notoriety for example from Rick Reilly of ESPN The Magazine, Walter Olson at Overlawyered and Justin Rebello at Lawyers USA. It appears that then 12 year old Martin Gonzalez’s suit was based on negligent coaching (i.e., allegations that Martin hadn’t been taught the proper sliding mechanics) and improper equipment (i.e., allegations that the base itself was stationery and not detachable or moveable).

The injuries in the Gonzalez case – torn ligament and meniscus requiring two surgeries – are serious enough to warrant a settlement or verdict in the low to mid six figure range; however, it’s the liability concept that has aroused so many and angered some. Only Eric Turkewitz at New York Personal Injury Law Blog appears sympathetic, suggesting that there may have been a valid failure to use break-away bases claim that led the league to settle.

We will continue to follow assumption of risk cases in general and sports injury cases in particular. Some of the types of cases that are being or will be litigated include those brought by professional athletes for dangerous playing field conditions, amateur baseball players claiming metal bats are inherently dangerous and kids injured at public batting cages. And, no doubt, we will revisit the Little League case settlement and the issues underlying it.




"School’s Open" say the signs all over the roadways every September. "Drive Carefully," they say.

Perhaps they should also say "Play Carefully."

Every year, students at schools get injured in sporting events and every year their parents start lawsuits for them. More and more, though, these cases are dismissed by trial judges without even proceeding to trial. We’ve discussed assumption of risk defenses in New York injury cases before, here in the context of fights at school and skydiving and here and here in the context of golf-related accidents. We’ve also surveyed some unusual sports-related cases here.

The most recent New York injury cases involving these issues are discussed below, along with another case that, while not on school grounds, involves a soccer injury that is apropos.

Floor Hockey: A high school boy was injured in a floor hockey game in physical education class when he fell over his opponent’s hockey stick as they were both trying to take control of the puck.

The trial judge dismissed the case and the appeals court upheld the dismissal in Mayer v. Gulmi. Plaintiff was found to have assumed the risk of falling, an incident everyone knows happens all the time in floor hockey. His claim that his opponent intentionally threw his stick at him would, if proven, have allowed the case to be presented to a jury but there was not enough reliable evidence to support that claim and avoid having the case tossed.

Wrestling: A high school wrestler contracted herpes while participating in a match against another school. The trial judge denied the motion by the two school districts to have the case dismissed without a trial but the appeals court reversed. In Farrell v. Hochhauser, it was held that the plaintiff knowingly engaged in a close contact activity (wrestling) and he therefore assumed the risk of a disease being transmitted through skin to skin contact.

Additionally, plaintiff’s coach submitted an affidavit stating that before the season he:

  1. gave all of his wrestlers and their parents written information about how common it is to contract herpes from wrestling (almost 30%) and
  2. discussed all of this with his team and the boys’ parents

While plaintiff and his father said they did not recall this information being given to them, they could not be sure it wasn’t. That, the appeals judges said, was not enough to avoid dismissal of this case.

Soccer: A spectator at a soccer game was standing in the field’s sideline area when she was kicked by a player who was trying to kick a ball that had rolled off the field.

The plaintiff suffered a broken ankle requiring surgery and in her lawsuit she claimed that the defendant (the athletic complex owner) should have created a buffer zone to protect sideline spectators. No, said the judge in Andrade v. Nassau County. The plaintiff assumed the risk of this injury by standing where she did when she could have watched from seats available in the stands. Case dismissed.

We will continue our review of sports injury cases and how assumption of the risk bears upon their outcome in court with our next installment that will deal with our national pastime – baseball.



You can’t make this stuff up. On July 12, 2003, Lisa Nutley sought to celebrate her birthday with the thrill of her life – a recreational parachute jump. So, she drove to SkyDive the Ranch (web site here), a skydiving facility in Gardiner, New York that’s been in business for over 30 years.

As this was Lisa’s first ever jump, it was to be a tandem jump – an instructor would be tethered to her.

Here are some happy tandem jumpers (this is not Ms. Nutley):


Lisa met with the instructor at SkyDive’s facility and was shown a half-hour instructional video. And, before the jump, she signed waivers and releases agreeing that SkyDive would incur no liability for any injuries she might sustain during the course of her jump.

Off she went to celebrate her 33rd birthday. Lisa jumped out of the plane with Robin Rohemo, her tandem partner, and that’s when it got really thrilling – the main parachute failed to deploy and Lisa hurtled toward the ground, somersaulting in the air, terrified of imminent and certain death when she’d smash into the round at 100 miles per hour.

Here’s what it looks like when a chute gets tangled:

Luckily for Lisa, Mr. Rohemo knew exactly what to do during this mid-air free fall. First, he tried to cut the failed main chute off. Failing that, he told Lisa he needed her to stand on his knees and hold on. Lisa’s words: "So I am holding as tight as I possibly could standing on his knees as we are falling to our death and I just felt this tremendous pressure pull on my hand … and I figured we were going to die …." Rohemo was able to free up the back-up chute, he and Lisa floated down to safety and no one died that day.

Whew, what a thrill. Maybe Lisa should’ve paid extra for the additional thrill. Instead, because her third and fourth fingers were fractured during the fall, she lawyered up and sued SkyDive claiming that Rohemo – her savior – had wrongfully told her to hold tight to a dangerous area of the parachute he was trying to cut away and then never told her to let go at an appropriate time. This, she and her lawyer claimed, presented Lisa with an enhanced risk not assumed or inherent in a tandem jump.

Baloney, said the defense. In moving for summary judgment (seeking to have the lawsuit thrown out before trial), SkyDive argued that Lisa was fully aware of all of the risks associated with skydiving and thus all her claims were barred. Under New York law, a person who voluntarily participates in recreational activity is deemed to consent to the apparent or reasonably foreseeable consequences of that activity. What’s more obvious than the risk of the chute not opening? That’s any novice’s first (and worst) fear when contemplating a skydive.

And then there are three waivers that Lisa signed specifically acknowledging that she understood the risks of injury or death and agreeing that she would not sue. Here is the waiver right on SkyDive’s web site.

It’s beyond me how in the world anyone would, under these circumstances, have the gumption to sue for two fractured fingers (one of which required surgery to repair). After three years of litigation, an appellate court this week finally tossed this case out, granting the defendant summary judgment dismissing the complaint (overruling a lower court judge’s decision earlier this year allowing the case to proceed to trial).

The appeals court found that SkyDive should win because Nutley had assumed the risk of injury in that she:

  • knew she was engaged in an inherently dangerous recreational activity and
  • knew of the obvious risk that the main chute could fail to open

So that’s the end of this case, right? Wrong. The waivers that Nutley signed included language that, in a lawsuit such as the one Nutley started here, she’d have to pay SkyDive’s attorneys fees and litigation costs. While this type of contractual provision is generally disfavored in New York, Nutley failed to defend against it (her lawyer neglected to serve a so called reply to defendant’s counterclaim asserting its right to legal fees and costs) so this issue is still alive.

Inside Information:

  • SkyDive offered $5,000 to settle several times
  • SkyDive intends to pursue its claim for legal fees and costs which by my estimate could exceed $50,000

This is a lawsuit that never should have been started. Lisa Nutley knew there was a risk that her chute might not open. When her worst fear happened, she was saved by her tandem diver. Suing for her two fractured fingers was not only ungracious but also it was contrary to settled legal principles. It was a lawsuit destined to be dismissed. Lisa should now pay SkyDive’s legal fees and costs. And it appears that she will.


Parents are always telling their kids before they go off to school: study hard, obey the teachers and behave. Good advice, of course. But what happens when the little darlings do misbehave? When they fight with other schoolkids? And serious injuries result? Why, the parents "lawyer up" and sue the school district, naturally! But these cases are losers and the schools are wining dismissals repeatedly.

In the latest of these cases, MacNiven v. East Hampton Union Free School District, a fight broke out among high school track team members. Standing 20 feet away was another team member, soon to be plaintiff Cory MacNiven. Instead of going for help or just staying out of it, young Cory "jumped in" to the fight and kicked a teammate in the head. Then, surprise, Cory was punched in the face and injured.

Would you run towards a fight, or away from it?

In his ensuing lawsuit (technically, the parents’ lawsuit because under New York’s CPLR Article 12, when an injured party is under the age of 18 years, it’s the parents who sue for him), plaintiff claimed that the school district was negligent in failing to properly supervise the team during practice. The appeals court disagreed and dismissed the case this week repeating the oft cited rule that

liability for injuries resulting from a fight between two students cannot be predicated on negligent supervision if the plaintiff was a voluntary participant in the fight.

The same voluntary participation in a fight on school grounds bars a lawsuit against the school district rule has been applied for many years:

  • Williams v. City (2007) – inadequate supervision claim dismissed in a fight between elementary school students in an auditorium because of voluntary participation in the fight by plaintiff
  • Danna v. Sewanhaka Central High School District (1997) – school could not have anticipated fight in music class between 12 year olds, especially where plaintiff voluntarily entered the fight and struck the first blow (a kick in the shin)
  • Ruggiero v. Board of Education of the City of Jamestown (1969) – suit by 17 year old high school senior for injuries from a fight over unassigned locker dismissed because plaintiff voluntarily squared off with another student and chose to expose himself to the dangers of a fistfight.

If you square up, you lose your case against the school.

 You’d think that parents of kids who start fights at school (or voluntarily jump into them) would be reluctant to start a lawsuit. Maybe it’s bad advice from lawyers who don’t know the state of the law, who haven’t read up on these types of cases. Now, I know that facts unknown at the beginning can develop, change or surface that may account for why some of these dumb cases were started. But when it’s perfectly clear that a student started a fight at school, or on his own decided to join one, then the New York courts will routinely dismiss the lawsuit.

Many argue that there are too many lawsuits like the ones discussed above, they are frivolous and there should as a result be a loser pays system. That’s the type of system in effect in England and other countries where the loser of these types of lawsuits is required to pay the legal fees of the wining party.

The push for a loser pays system has been ongoing for some time now. An important study in favor was released recently by The Manhattan Institute’s Marie Gryphon, supported by many including, of course, her think tank colleague  Walter Olson of Overlawyered fame.   Standing opposed to the loser pays system are trial lawyers representing plaintiffs, for example Atlanta attorney Ken Shigley here and Boston attorney Robert Feinberg here. Trial lawyer organizations such as American Association for Justice (formerly known as American Trial Lawyers Association) and New York State Trial Lawyers Association argue that there is no need for such a system as do blogs such as Tort Deform.

The battle lines are being drawn and there’s a great deal of money being spent pro and con. The loser pays system may become the law in the U.S.

  • Would a loser pays system be beneficial for all concerned?
  •  What form would it take?
  • Could it be successfully challenged as unconstitutional?

These issues will continue to be discussed and even fought over as the push for loser pays intensifies.

Will New York become a haven for lousy golfers? That’s a possibility given an appeals court ruling last week in the case of two (theretofore) friends and golfing buddies who took to the course on October 19, 2002. One of their threesome got hit in the eye by an errant golf shot from another in the threesome, sustained a traumatic retinal detachment, lost sight in his eye, sued his buddy and has now had his case dismissed as a matter of law.

Golf course injuries can be quite severe and lawsuits concerning them seem to be on the rise. The courts, think tanks and commentators have repeatedly addressed the situations under which there will be liability for misdirected golf shots. When one must one yell "fore," and when should an injured golfer’s case be dismissed because he was out of position? These are just some of the issues being discussed in the cases and by others such as  Walter Olson who chronicles the high cost of our legal system at Overlawyered (where today he mentions the case here discussed).

In Anand v. Kapoor, plaintiff and defendant, both physicians, had each hit two shots on the first hole of Dix Hills Park Golf Course. Dr. Anand was 20 feet or so ahead of Dr. Kapoor and at an angle 50 degrees away from the hole. Without seeing Dr. Anand or even knowing where he was, Dr. Kapoor hit what must have been one of the poorest wedge shots in history – it shanked 50-80 degrees and went towards the green no more than 20 feet – it went smack into Dr. Anand’s left eye!

Nobody is ahead of the golfer and all are safe here:

Dr. Anand claimed that Dr. Kapoor should have yelled "fore" before hitting or at least when he realized his shot was, shall we say, off-line. Way off line. Dr. Kapoor, for his part, claimed that the plaintiff knew that golfers should wait behind those hitting precisely to avoid injuries from errant shots.

Also, the defendant correctly noted that the obligation to yell fore arises only when another person person is:

  1. in the intended line of flight, or
  2. in a position such that danger to him is reasonably anticipated.

Dr. Anand was neither in the intended line of flight nor even in an area that it might be expected would be dangerous.

The court noted that it’s long been the law in New York  (see Jenks v. McGranaghan) that a golfer has a duty to give a timely warning to other persons within the foreseeable ambit of danger (i.e., to yell "fore"); however, on the facts in this case the court then held that plaintiff was at so great an angle away from the defendant and the intended line of flight that he was not in the foreseeable danger zone.

It’s not like the plaintiff was aiming for the defendant, like in this illustration:

So what exactly does "foreseeable danger zone" mean? Well, as we lawyers say, its meaning is fact specific.

  • In the case of Richardson v. Muscato, it meant that a golfer on the tee who was hit on the head by a ball from another golfer on a different hole was in the zone when the defendant admitted he saw the plaintiff ahead about 40 feet before taking his shot.
  • In the case of Rinaldo v. McGovern, it meant that a person driving his car on a road adjacent to a golf course was not in the zone when a ball came crashing into his windshield.

Clearly, Dr. Anand bore responsibility for his own actions in the new case – he went ahead of the pack and placed himself outside the line of sight of his playing partner. It’s not that the court is blaming the victim (and we all surely must sympathize with the plaintiff who suffered a devastating injury here); rather, the court is declaring that the doctrine of assumption of the risk applies. Under that doctrine, as we have noted before (coincidentally, in another golf injury case), a plaintiff may be barred from recovering for his injuries when it is shown that he voluntarily engaged in dangerous activity and he knew or should have known of the risk of harm.

So, yes, a golfer should still yell "fore" when he hits an errant shot and if he does not he may be found liable in court if his shot injures another golfer when the plaintiff:

  1. is not in the line of sight,
  2. has gone ahead of the area where the golfer’s ball lies who is furthest from the hole, or
  3. otherwise acts without regard for his own safety.

New York is not, as I suggested tongue in cheek above, likely to become a haven for lousy golfers because of the new court decision. High courts in magnificent golf spots like Hawaii have ruled the same way. Golf, anyone?

UPDATE: On December 21, 2010, New York’s Court of Appeals affirmed the intermediate appellate court ruling dismissing the complaint in Anand v. Kapoor (2010) concluding that being hit without warning by a "shanked" shot while one searches for one’s own ball reflects a commonly appreciated risk of golf.





In several unusual sports related cases around the country recently, injured plaintiffs have failed to win any damages. If we count "slam dancing" as a sport then the score is no wins, two losses and two ties (to be broken by trials down the road).

Loss #1: In Fry v. Jolly Roger Rides, Inc. a Maryland jury returned a verdict for the defense finding that an amusement park was not negligent when an errant basketball struck a woman in the head. Chrisitne Fry had been walking at an amusement park pier when a basketball used in a long range basketball shot game deflected off the game’s apparatus and struck her. She claimed that a year and a half later she underwent neck surgery because the force of the ball aggravated a pre-existing cervical spine injury.

The defendant had sought a dismissal before trial claiming that there was no way it could foresee such an accident. The motion was denied. No matter. The jury heard testimony that there had been no one injured from the game in five years and that the incident was so unexpected the defendant should not be liable for having failed to foresee it. And so the jury dismissed the case.

  • As our friends at Torts Prof Blog suggested, Ms. Fry’s husband probably helped the defense with his testimony that he thought the odds of this accident were "one in a million."

Loss #2: In Schoneboom v. B.B. King Blues Club, a New York judge dismissed without a trial the case of a Manhattan concert goer who sustained a torn anterior cruciate ligament in his knee requiring surgery.

David Schoneboom admitted that he knew there was wild, violent "slam dancing" (also known as moshing) all around the heavy metal band concert.

He still went right up to the front near the stage, next to some of the wildest activity. Low and behold, he got bumped by an unknown person and then he sued the club. The judge found that he had assumed the risk of such an occurrence and injury because he knew that the aggressive moshing was taking place and still deliberately placed himself in proximity to it.

Tie #1: In Sweeney v. Bettendorf, an eight year old girl in the stands at a professional minor league baseball game in Iowa was injured when a player lost control of his bat which traveled 120 feet and struck her in the head.

Tara Sweeney was on a field trip organized by her city parks department. Her injury case against the city was initially tossed out by the trial judge but an appeals court has now ruled (5-2) that the case may proceed to trial because the city had a duty to protect the child’s safety at the ballpark and that a jury could find that parks employees put her in an unreasonably hazardous location to watch the game.

Tie #2: In Allred v. Capital Area Soccer League, Inc., the North Carolina Court of Appels overturned a lower court’s pre-trial dismissal of an injury case brought against a soccer league by a spectator at a game who was struck in the head by a soccer ball before the game even started. Teresa Alford had been in the stands behind one of the goals while the teams were warming up and many balls were being shot by the players towards the goal.

One shot sailed over the goal and hit Teresa casuing severe head injuries.

In discussing the assumption of the risk doctrine, the court noted that the case is at an early stage and the defense has not shown that Ms. Allred’s knowledge of soccer was such that she should have known of the inherent risks of being hit by an errant ball. So the judges ruled that this case may proceed. For now.

  • My prediction: defense verdict at trial.

These assumption of the risk cases will continue to be brought and they will always be controversial.

There appear to be three schools of thought on these cases:

  1. Many who would like to see all of the plaintiffs in cases like the ones discussed here completely barred from the courthouse or, if allowed to trial and they lose, forced to pay the winner’s legal fees.
  2. Others would would like to see a remedy for every person injured, no matter the fault, no matter the social and economic consequences.
  3. Judges who will continue to play a large part in the outcome of each individual case as well as on the impact their rulings have on society at large.

And we will continue to report on these cases and engage in discussions about them.