As the U.S. Open tees off Thursday, consider the funny thing about golf. It’s the only sport where the spectators have a greater risk of sustaining a serious injury than the players. Golfers risk back injuries. Some spectators, on the other hand, stand unprotected, just slightly to the side of someone who will be hitting a rock hard sphere at lightning speed. If you are going to the Open played at Shinnecock Hills Golf Club in Southampton, N.Y., and meet Phil Mickelson because he comes up to apologize and check on your well-being, will you be able to recover for your injuries? The obvious starting place to answer this question is the huge body of case law that addresses liability for spectators injured by a foul ball at a baseball game. In general, courts across the board have made it very difficult for those injured in this way to recover from the owner or operator of the stadium. Many have adopted the "baseball rule," which generally provides that a baseball stadium owner or operator is not liable for a foul ball injury as long as it screens the most dangerous part of the stadium and provides screened seats to as many spectators as may reasonably be expected to request them. Will a spectator injured at the U.S. Open suffer the same fate as an unlucky baseball fan? At least one case says no. I consider myself a golf fan. Despite that, I’ve never heard of a professional golfer named Dow Finsterwald. Shame on me. While he played long before my time, he was no here-today, gone-tomorrow pro. Finsterwald won 11 tournaments between 1955 and 1963, including the 1958 PGA Championship. He played on four Ryder Cup teams and served as nonplaying captain for the 1977 U.S. Ryder Cup team. In 1958 he was honored as PGA Player of the Year. He is fifth on the list for consecutive cuts made (72). And he’s probably a whiz at getting a golf ball through the moving blades of a windmill. On June 29, 1973, Finsterwald was playing in the Western Open at Midlothian Country Club not far from Chicago. On that date, Alice Duffy and a companion were in attendance as spectators. Shortly after arriving, they watched Arnold Palmer tee off at the first hole. The women then walked toward the first green, stopping at a concession stand set up between the first and 18th fairways. While watching play on the first hole, Duffy was hit by Finsterwald’s tee shot on 18. Duffy lost all sight in her right eye and was forced to wear a prosthetic shell over her eye for cosmetic purposes. (I did some checking. Here is how the 1973 Western Open turned out. Billy Casper won (-12). Arnie finished 7th (-8). Finsterwald made the cut, but it wasn’t his tournament any more than it was Alice Duffy’s. He came in 76th place at +11.) Litigation was filed against the club, the Professional Golfers Association of America, Western Golfers Association and Finsterwald. The litigation was protracted. The accident took place in 1973. There is a second Appellate Court of Illinois decision from 1985. And who knows if that was really the end? Those who think that golf moves slowly now see that something moves even slower. The trial court in Duffy v. Midlothian Country Club granted summary judgment for the defendants. But in a 1980 opinion, the Appellate Court of Illinois reversed, holding among other things that a material question of fact existed as to whether the defendants fulfilled their duty to the plaintiff as a business invitee. The case went to trial, and a jury awarded Duffy $498,200, which was reduced by 10 percent for her own negligence. [The PGA had been dismissed by plaintiff, and the jury found for Finsterwald and against the plaintiff.] In a 1985 opinion in the case, the Appellate Court of Illinois upheld the award. The decision is heavy on the legal. The court concluded that the doctrine of secondary implied assumption of the risk (the plaintiff implicitly assumes the risks created by the defendant’s negligence) is abolished by the introduction of comparative negligence. Thus, the plaintiff’s assumption of the risk will not operate as an absolute bar to recovery in a negligence action, but, rather, merely aid in the apportionment of damages. It appears that an important part of the plaintiff’s case was the affidavit of Tim Mahoney as an expert witness. Mahoney was a member of Midlothian, had played there for 35 years, won the 1973 Western Open Pro-Am Tournament and attended the 1973 Western Open. Mahoney was aware of the club’s preparations for the tournament. The court described his affidavit: “He stated that concession stands were placed in areas in which balls had regularly landed in the past, and that the fairways were so close together that the spectators located between the fairways are within range of balls likely to be hit by golfers. He further stated that the spectators would not be able to see the player hitting the ball as the shrubbery and hills interfered with visibility.” The take-away from Duffy v. Midlothian Country Club is that, while many courts have adopted the "baseball rule," here the court applied no such special “golf rule” to determine the standard of care owed to a business invitee. It is customary for a professional golfer that hits a spectator with a ball to give the spectator an autographed glove. That’s a nice gesture. If you’re that unlucky person, accept it. But make clear that it is not a release of any other claims. Randy Maniloff is an insurance coverage attorney at White and Williams in Philadelphia and an adjunct professor at Temple University Law School.
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