Herman v Weisner

[*1] Herman v Weisner 2017 NY Slip Op 51943(U) Decided on November 30, 2017 Supreme Court, Nassau County Marber, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 30, 2017
Supreme Court, Nassau County

Bryan Herman, Plaintiff,

against

Barry Weisner, Defendant.



009954/15



Polermo Tuohy Bruno, PLLC.

Attorneys for the Plaintiff

1300 Veterans memorial Highway

Suite 320

Happague NY 11727

Shearer PC

Attorney for the Defendant

98 Forest Avenue

Locust Valley NY 11560
Randy Sue Marber, J.

Papers Submitted:

Notice of Motion

Amended Notice of Motion

Affirmation in Opposition

Memorandum of Law in Opposition

Reply Affirmation

Upon the foregoing papers, the motion by the Defendant, BARRY WEISNER ("Weisner"), timely seeking an order pursuant to CPLR § 3212 granting him summary judgment and dismissing the Complaint of the Plaintiff, BRYAN HERMAN ("Herman"), [*2]is determined as hereinafter provided.

This case arises out of personal injuries allegedly sustained by the Plaintiff on August 5, 2015, when he was hit in the face by an errant golf ball hit by the Defendant while playing golf at the Golf Club at Middle Bay in Oceanside, New York. At the time of the incident, the Plaintiff and his foursome were playing on the 8th hole while the Defendant and his group were playing on the 15th hole. It is undisputed that the 8th hole runs parallel to, but in the opposite direction of the 15th hole; and that the two holes were separated by a dense line of trees, measuring approximately 125 yards in length and 10 to 15 yards in width. After the Plaintiff's foursome hit their tee shots, the Plaintiff claims that he walked off the 8th fairway and onto the 15th fairway to look for a golf ball of a member in his group when he was struck in his right eye by a golf ball hit by the Defendant from the 15th tee box. It is further undisputed that the Defendant did not yell "fore" prior to hitting his shot.

The Plaintiff, Herman, testified at an Examination Before Trial ("EBT"). Herman is fifty-one-years old and has been playing golf since he was twenty-four [See Plaintiff's EBT Transcript at pp. 37-38, annexed to Defendant's Amended Notice of Motion as Exhibit "D"]. Herman considers himself an "avid golfer" and has traveled internationally to play golf [Id. at p. 40]. He has also played in a "formal match" [Id. at p. 42]. The last "index" or "handicap" Herman could recall having was a "12", and prior to that he was a "5 handicap" [Id. at p. 41].

The Plaintiff, Herman, testified that on the date of the incident, he was voluntarily playing a game of golf at Middle Bay Golf Club with Luke Magliaro ("Luke"); Luke's brother, Mark Magliaro ("Mark"); and Luke's son, Ryan Magliaro ("Ryan") [Id. at pp. 47-48, 54]. At the time of the incident, the Plaintiff, Herman, and his group were playing the 8th hole [Id. at pp. 54, 62-63].

Herman's recollection of the events leading up to the incident and his positioning at the time he was struck by the golf ball is contrary to the testimony of two nonparty witnesses, Luke and Mark, that were playing in the Plaintiff's foursome. Herman testified that his tee shot from the 8th tee box landed in the middle of the 8th fairway; and that Mark's tee shot hooked left past the dense part of the tree line that separated the 8th and 15th fairways and landed in the fairway of the 15th hole. [Id. at pp. 67-70]. Significantly, at that time, Herman did not observe anyone on the 15th tee box [Id. at pp. 72-73].

Herman's group had two golf carts. Herman and Mark were riding in one golf cart, while Luke and Ryan were riding in the other. [Id. at p. 55]. Herman testified that after they hit their tee shots, Mark dropped Herman off in the middle of the 8th fairway where Herman's ball allegedly landed. According to Herman, Mark then proceeded to "circle to look for the ball". [Id. at p. 74]. Shortly thereafter, Herman testified that he walked over to help Mark locate his ball as he was still "circling in the open area of the 15th hole" [Id. at pp. 76, 78]. Herman later testified that he did not recall "the exact spot" where Mark was circling, and that he was "circling around the 15th fairway/rough" [Id. at pp. 79-80].

When Herman was walking towards the 15th fairway to help Mark look for his ball, [*3]there was nothing obstructing his view of the tee box on the 15th hole. Per Herman, he was able to see it "clearly" [Id. at p. 84]. During that walk, Herman looked up and did not see anyone on the 15th tee box. When he stopped at the spot where he thought Mark's ball had landed, Herman looked up again at the tee box, did not see anyone, and then put his head down to start looking for the ball [Id. at pp. 85, 88-89]. Herman consistently maintained throughout his deposition that he did not observe anyone at the 15th tee box prior to being struck [Id. at pp. 112-113, 155-156]. Herman explained that his purpose in looking up at the 15th tee box was to "make sure there was nobody hitting." [Id. at pp. 108-109]. Herman testified that he was struck by Weisner's ball less than a minute later [Id. at p. 88].

Q: You got to the spot. You looked again. There was no one on the tee box. You started to look. It was under a minute and then you got hit?A: Correct.Q: And during that minute, you did not see the person?A: That's correct.

[Id. at p. 90].

According to Herman, from the vantage point of the 15th tee box, he was struck approximately 80 yards from the tee box and approximately 20 to 25 degrees to the left of the center of the fairway [Id. at p. 108].

Herman was struck in his right orbit [Id. at p. 116]. Immediately after being struck, Herman recalls screaming and stumbling "quite a bit" until he eventually hit the ground [Id. at p. 117]. Herman could not specify the number of yards or feet he stumbled before falling to the ground; and described it was not as much as 100 yards, but more than a few feet [Id. at p. 119].

Herman admitted at his deposition that he would have an obligation to let the Defendant and his group play on the 15th hole had he seen them prior to searching for a ball on the wrong fairway:

Q: If someone comes from a hole, the wrong hole, they are not on the hole that you are playing, is it your understanding as an avid golfer and experienced golfer that the person would have an obligation to make sure that the people who are actually playing the hole let them play?A: I would have had I seen them prior to looking for the ball.Q: So, if there was someone on the tee box, you would agree it would be your obligation to make sure it was okay to hit the ball or look for it?A: If I saw somebody in the tee box.

[Id. at pp. 11-112].

Luke was playing golf with the Plaintiff, Herman, on the date of the incident. Luke testified at his nonparty deposition that he is a skilled golfer who had played at the subject golf course on approximately four (4) prior occasions [See Luke Magliaro Transcript at p. 12, annexed to Defendant's Amended Notice of Motion as Exhibit "H"]. Luke explained that the line of trees separating the 8th from the 15th fairway was [*4]approximately 125 yards in length; and the distance from the end of the line of trees to the 15th tee box was approximately 75 to 100 yards [Id. at pp. 18-19].

Contrary to Herman's testimony that Herman's tee shot landed in the middle of the fairway, Luke testified that Herman's tee shot landed in an area of the rough to the left of the 8th fairway [Id. at pp. 21-23]. Luke's own tee shot landed in the middle of the 8th fairway past the end of the line of trees that separated the two holes [Id. at p. 19]. According to Luke, after the foursome hit their tee shots, Luke and Ryan (who were riding in a golf cart together) drove to Luke's ball located in the center of the 8th fairway. At that point, Luke observed his brother, Mark, sitting in the other golf cart that was stopped in the rough off the fairway, and the Plaintiff, Herman, was standing behind the cart lighting a cigar [Id. at pp. 24, 26, 29, 105-106]. Immediately prior to that, Luke glanced at the 15th hole and observed a threesome at the 15th tee box [Id. at pp. 33-35, 105-106]. Markedly, Luke was able to view the Defendant's threesome at the 15th tee box from his location on the 8th fairway, while the Plaintiff claims he did not see anyone on the 15th tee box while allegedly on the 15th fairway.

Luke testified that he had the Plaintiff under his constant supervision until the time he was struck:

Q: Did you have [Herman] under your constant observation from the time you believed he was lighting a cigar until you saw him lying on the ground?A: I was standing in the fairway looking to see if they were going to be ready to hit soon. So my direction was at them at that time.Q: Right. So what I am asking, you said you saw Mr. Herman, he appeared to be lighting a cigar, then he started screaming.A: Yes.Q: At any point, had you turned away from him or did you watch him the entire time?A: I watched him the entire time.Q: So he appeared to be lighting a cigar. Then all of a sudden did he fall to the ground?A: He started screaming. He held his head and he fell to the ground and was rolling on the ground.Q: Did he roll in a particular direction or did he move a significant distance from the spot where you saw him originally?[Objection]A: He stayed exactly where he was, within inches, feet.

[Id. at pp. 31-32].

Luke estimated the distance between the 15th tee box and the location where Herman was on the ground was approximately 150 yards; and at an angle between 45 and 90 degrees [Id. at p. 45]. Luke did not hear or see the golf ball hit any trees prior to striking the Plaintiff [Id. at p. 111]. He also did not hear anyone call out "fore" or any other warning prior to the incident.

Mark testified consistently with Luke, and contrary to the Plaintiff regarding the positioning of their tee shots. Mark testified at his nonparty deposition that Luke's tee shot landed in the middle of the fairway past the line of trees; and Herman's tee shot landed in middle of the line of trees separating the 8th and 15th fairway, but closer to the 8th fairway side [See Mark Magliario Transcript at pp. 13-15, 19-21, annexed to Defendant's Amended Notice of Motion as Exhibit "I"]. Contrary to Herman's recollection, Mark testified that he was a passenger in the golf cart driven by Herman. According to Mark, they located Herman's ball in the tree line, pulled up past the ball and stopped the golf cart. Mark observed trees on either side of the area where the golf cart was stopped [Id. at 22]. Mark testified consistently with Luke that Herman was standing behind the cart lighting a cigar at the time the incident occurred [Id. at p. 21-22, 24, 27]. In response to questioning by the Plaintiff's counsel in this regard, Mark testified:

Q: Did you actually see Mr. Herman hold a cigar or is your testimony in that regard based on the fact that you saw it lying next to him when he fell?A: He had a plastic bag in the cart with him. He unzipped the bag. He had the cigar. He had a little red lighter with him. He was behind the cart flicking the lighter. I can hear it flicking. I smelled the smoke. Because I don't like cigars. And then it was on the ground.

[Id. at p. 48].

Mark then "heard the scrape off the cart roof, and then [he] heard [Plaintiff] screaming bloody hell" [Id.]. Mark also testified consistently with Luke that Herman did not move any appreciable distance from the time he was struck to the time he fell to the ground:

Q: So the contact occurred in the line of trees separating the two holes, the one that you were playing and the one that was to your left?A: Yes.Q: No doubt about that?[Objection]Q: You can answer.A: No doubt.***Q: You said you were within that tree line [sic] when the accident occurred. Was it on your side of those trees or on the other side of the trees, do you know, where the incident occurred?A: It was right in the middle. And where he was standing was closer to my fairway, because he wasn't at his ball — he didn't address his ball. He was lighting a cigar. He was standing behind the cart. My cart is facing the fairway that the gentlemen were coming down, and he was behind the cart.

[Id. at pp. 27-28, 39].

Mark did not hear anyone yell "fore" prior to the incident [Id. at p. 29]. Nor did he hear the golf ball hit any trees prior to the incident. The only sound he heard was what [*5]appeared to be a golf ball scraping off the top of the cart [Id. at pp. 47-48].

Photographs taken on behalf of the Plaintiff were marked at the depositions of the Plaintiff and nonparty witnesses that purport to explain the location where the Plaintiff was allegedly struck by the Defendant's misdirected shot. On one of the photographs, the Plaintiff marked an "X" where he believes he was struck on the 15th fairway [See Photographs annexed to Defendant's Amended Notice of Motion as Exhibit "K" (Def. Ex. "J3" marked for ID at Pltf. EBT); see also Pltf. EBT at pp. 161-162]. While the Plaintiff's marking reflects an open area on the 15th fairway, several other photographs depict the Plaintiff on the ground in a shaded area under the dense line of trees that separate the two fairways [See Defendant's Exhibit "K" (Def. Ex. "A" through "C" and "I" marked for ID at Pltf. EBT); see also Pltf. EBT at pp. 139-140, 151-152]. The Plaintiff conceded at his deposition that said photographs do not depict him "sitting on the fairway", but rather, reflect the location where he "eventually" fell after being struck and stumbling some unknown distance until he fell to the ground [Id. at pp. 118-121, 135-136, 143].

Luke also marked an "X" on certain photographs to show the location where the Plaintiff was struck which differed from the area marked by the Plaintiff [Id. at p. 151]. Contrary to the Plaintiff's contention that he was struck in an open area of the 15th fairway, Luke's marking blatantly reflects that the Plaintiff was struck in a shaded area located under the dense swath of trees on the side closer to the 8th fairway [Id. at pp. 53-54, 56-57; see also Photographs annexed to Defendant's Amended Notice of Motion as Exhibit "M" (marked as L. Magliaro "B1" through "B5" for ID)]. Luke's testimony as to the photographs depicting the Plaintiff on the ground after being struck is noteworthy:

Q: Let's start with based on your observations of him from the moment he got hit until the police officer and EMS crew came.Did he move from his general position?A: No.Q: So would you agree that Mr. Herman, wherever he is located, whatever the orientation is in Defendant's Exhibit A for identification, he is on the 8th hole?A: Yes.

[Id. at p. 49]. ***

Q: That marking, behind that marking would be where the accident occurred? A: Yes.Q: So that area would be —- if you're looking from the orientation of this picture, B1, it would be to the left of the trees, on the 8th hole side of those trees?A: Correct.

[Id. at pp. 56-57, 61-64].

Luke testified consistently throughout his deposition that the Plaintiff was struck on the 8th hole side of the tree line [Id. at pp. 49, 53-57, 61-64, 108, 112].

In a sworn Affidavit by the Plaintiff's expert engineer, the distance between where [*6]the Plaintiff alleges he was struck by the golf ball and the 15th tee box was measured to be 75 yards, give or take 5 yards [See Expert Affidavit of Harold Krongelb, P.E., sworn to on August 3, 2017 at ¶12]. Mr. Krongelb also measured the angle from the center of the 15th fairway to where the Plaintiff claims he was struck to be approximately 8 degrees [Id. at ¶17]. Further, Mr. Krongelb measured the distance between where the Plaintiff marked an "X" purportedly depicting where he was struck and where he ultimately fell to the ground. The distance between these two points was measured to be approximately 20 yards [Id. at ¶25]. Notably, Mr. Krongelb did not measure the distance between the 15th tee box and where the Plaintiff was found lying on the ground or where Mark and Luke testified the incident occurred closer to the 8th hole side of the line of trees.

The Defendant, Weisner, testified at a deposition, the pertinent portions of which were summarized in a sworn Affidavit submitted in support of his motion [FN1] . Weisner is an eighty-one-year old retired court reporter. [See Def. Aff. at ¶1, annexed to Defendant's Amended Notice of Motion]. He has been playing golf for approximately twenty years since his retirement. Weisner considers himself a "high-handicap, recreational golfer." [Id. at ¶3]. He typically shoots 25-35 shots over par. Weisner is a right-handed golfer. This means that when "[Weisner slices] a ball it goes to the right of where [he] is aiming and when [he hooks] the ball it goes to the left." [Id.].

On the date of the incident, the Defendant, Weisner, was playing golf with two friends, Sheldon Silverstein and Arthur Smith [See Weisner Aff. at ¶4]. At the time of the incident, the Defendant, Weisner, and his group were playing the 15th hole which is a long, straight fairway with the green directly ahead of the tee box more than 350 yards away [Id. at ¶3]. There was a group ahead of Weisner's group on the 15th hole. Weisner's group had to wait several minutes for the group ahead to move out of range of the 15th hole before hitting their tee shots [Id. at ¶¶ 5-6; see also Smith Aff. at ¶5]. Once the hole was clear for them to hit, Smith shot first, Silverstein shot second and Weisner was the last to tee off in his group [See Smith Aff. at ¶6].

Weisner attests that he observed the hole was clear and safe to hit during Silverstein and Smith's tee shots. He did not see anyone straight in front of them, other than the group that was playing ahead of their group who were well out of range. Prior to hitting his tee shot, Weisner "looked out over the hole both to aim [his] shot and to make sure it was safe to hit away." [Weisner Aff. at ¶8]. As he prepared to hit, Weisner did not see anyone in the area where he intended to hit the ball. Nor did he see anyone in the tree line to the left (separating their hole from the 8th hole) or hear anything to suggest someone was there. Weisner attests that it was clear for him to hit the ball [Id.].

When Weisner struck his tee shot, instead of going straight as he intended, the golf ball went high and to the left into the line of trees separating the two holes. [Id. at ¶11]. [*7]He lost sight of the golf ball when it disappeared into the "thick leaves of the line of trees on the left side of the hole approximately 150-170 yards out from [the] tee box but at a sharp angle to the left of the straight line [he] had hoped for." [Id.]. He then heard someone cry out. He never saw the Plaintiff or anyone in the line of trees before he hit his ball or while it was in the air. The scream led him to believe someone was struck by the ball, although he did not see the contact. Weisner and the other members of his group then immediately got into their golf carts and drove to the area where the ball disappeared. Weisner then observed the Plaintiff lying on the ground in the shade of the trees, which was the first time he or anyone in his group saw the Plaintiff [Id. at ¶14]. Weisner attests that he does "not know if the ball [he] hit struck the plaintiff directly, if it ricocheted off a branch or something else, or that it hit him at all." [Id. at ¶12].

Weisner explains that the distance between where he intended to hit his drive and where it went was at least 45 degrees left of the center line of the 15th fairway. Weisner did not intend to hit the ball into the line of trees [Id. at ¶¶13-14]. In response to questioning at Weisner's deposition regarding his intent, he testified:

Q: Why did you hit the ball to the left?A: Why did I hit the ball to the left?Q: Yes.A: I didn't hit to the left. I hit it in the middle tee, went to the left.Q: Why did it go left?A: Why did it go left? Because I'm a lousy golfer.

[Weisner EBT at p. 94, annexed to Defendant's Amended Notice of Motion as Exhibit "E"]

Silverstein submits in his sworn Affidavit that he was looking out over the hole to watch Weisner's tee shot and never saw anyone before he hit the golf ball. Silverstein avers that there was no one on the hole they were playing, nor did he see anyone on the hole next to them. He further asserts that the Defendant, Weisner, hit a poor shot in terms of direction because it was far to the left of where a golfer would need to hit the ball to score well on that hole. Silverstein also estimated that Weisner's shot was at least 45 degrees to the left of the middle of the 15th fairway. [See Silverstein Aff. at ¶9].

Smith testified consistently with Weisner and Silverstein. Smith attests that he saw no one else on the 15th hole or in the general vicinity before hitting his tee shot, with the exception of the group ahead of them. Smith avers that the hole was clear to hit during all three of their tee shots, including Weisner's shot. [See Smith Aff. at ¶7]. He further submits that Weisner's "shot travelled at least 150 yards, but was so far to the left of where a golfer wants to be on the hole they were playing, that it disappeared into the thick, overhead canopy of leaves in the line of trees separating the hole [they] were playing from the one to the left of it." [Id.] Smith estimated that Weisner's shot was 30 to 50 degrees left of the center of the 15th fairway. Smith first saw the Plaintiff when he was lying on the ground in the line of trees after Weisner hit his golf ball [Id. at ¶¶8-9].

In his Bill of Particulars, the Plaintiff attests that the Defendant, Weisner, was [*8]negligent and reckless in hitting the golf ball while the Plaintiff was allegedly in range and in the line of play, in failing to follow the rules of golf, and in failing to provide a warning for the shot which created an unreasonable increased risk of harm to the Plaintiff [See Plaintiff's Bill of Particulars dated April 25, 2016, annexed to Defendant's Amended Notice of Motion as Exhibit "C"]. The Plaintiff alleges that he suffered severe injuries, including multiple fractures in the area around his right eye, loss of visual acuity, loss of depth perception, and loss of peripheral vision [Id.].

Relying primarily on the seminal case of Anand v. Kapoor, 15 NY3d 946 (2010), the Defendant submits that he is entitled to summary judgment based on the assumption of risk doctrine. The Defendant argues that the Plaintiff assumed the risk of being hit by an errant golf shot by voluntarily participating in the game of golf. The Defendant further argues that no duty is owed to the Plaintiff to give a warning by yelling "fore" before hitting the ball because the Plaintiff was not within the intended line of flight of the golf ball.

Counsel for the Defendant further asserts that the Plaintiff's testimony concerning his location at the time of the incident should be found incredible as a matter of law as it contradicts the testimony of all party and nonparty witnesses, as well as photographs taken at the scene. Counsel avers that, accepting the Plaintiff's version of the incident as true, the sequence of events that would have to occur in under a minute is implausible. In this regard, the Plaintiff testified that (i) he did not observe anyone at the 15th tee box less than a minute before he was struck by the Defendant's ball; (ii) he was within the intended line of flight of the Defendant's ball; and (iii) he was standing within the line of play of the 15th fairway. Thus, the three golfers in the Defendant's group would have to pull up to the 15th tee box, exit their golf carts, select their clubs, wait for the group ahead to move out of range, go through their standard pre-shot routines, and hit their tee shots — all in under sixty (60) seconds.

In opposition, counsel for the Plaintiff argues that the Defendant failed to meet his initial burden because the primary assumption of risk doctrine does not apply to the facts of this case. The Plaintiff's counsel relies upon a line of cases which stand for the proposition that a "golfer has a duty to give a timely warning to other persons within a foreseeable ambit of danger, and that duty extends to those in or near the intended line of flight" [McDonald v. Huntington Crescent Club, Inc., 152 AD2d 543, 544 (2d Dept. 1989) [emphasis added], citing Jenks v. McGranaghan, 30 NY2d 475 (1972)]. In support of the position that the Plaintiff was within the "foreseeable ambit of danger", counsel relies upon the testimony of Luke and Mark that there was a clear line of sight between the incident location and the 15th tee box.

Counsel for the Plaintiff further asserts that the defense's theory is predicated upon the Defendant's claim that the golf ball hit the trees and came down hitting the Plaintiff from a vertical angle. The Plaintiff proffers expert testimony and medical records in opposition to the Defendant's motion to demonstrate that the Plaintiff was struck by a golf ball travelling in a horizontal direction. Moreover, counsel submits that neither Luke, [*9]Mark nor the Plaintiff heard the golf ball hit any trees or branches immediately prior to striking the Plaintiff. Lastly, the Plaintiff's expert engineer opined that the angle made by the path of the ball with the center of the fairway of the 15th hole was only 8 degrees. Based on the foregoing, the Plaintiff avers that he was within the intended line of flight of the Defendant's golf shot warranting denial of the motion.

Legal Analysis

The doctrine of the "assumption of risk" provides that by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of a sport, generally, and flow from such participation [Demelio v. Playmakers, Inc., 63 AD3d 777 (2d Dept. 2009); Morgan v. State of New York, 90 NY2d 471 (1997)]. As such, a defendant may be relieved from liability for injuries to a voluntary participant of a sport or recreational activity arising from such risks when the consenting participant has an appreciation of the nature of the risks and continuously assumes the risks [Morgan v. State of New York, supra].

In Anand, the plaintiff was injured by an errant golf shot hit by a member of his own group. At the time the defendant struck the golf ball, he was approximately 15 to 20 feet behind the plaintiff and at an angle just under 90 degrees. The defendant did not know where the plaintiff was when he hit his shot. The ball did not go in the direction intended by the defendant, and instead went sharply to the right at a low trajectory. Defendant did not yell "fore" prior to the stroke.

The trial court granted summary judgment in favor of the defendant golfer. In affirming the trial court, the Appellate Division, Second Department, held that the defendant golfer did not owe plaintiff golfer a duty to give warning of his intent to hit the golf ball; the plaintiff assumed the risk of being struck by a poorly executed golf shot; and the defendant golfer's failure to yell "fore" did not constitute an unreasonably increased risk which the plaintiff golfer did not assume by participating in the sport [Anand v. Kapoor, 61 AD3d 787 (2d Dept. 2009)]. While acknowledging the line of cases that predate Anand which stand for the proposition that "a golfer has a duty to give a timely warning to other persons within the foreseeable ambit of danger", the Appellate Division held in favor of the defendant golfer finding that the evidence was sufficient to establish that the 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". [Id. at 789]. Citing to Jenks, the Appellate Division also acknowledged that "there is no fixed rule regarding the distance and angle which are considered within the ambit of foreseeable danger," but "if the distance and angle are great enough they are not within the danger zone as defined by previous cases."

In affirming the Appellate Division, the Court of Appeals held that "[a] person who chooses to participate in a sport or recreational activity consents to certain risks that 'are inherent in and arise out of the nature of the sport generally and flow from such participation'" [Anand, 15 NY3d at 947-948, quoting Morgan v. State of New York, 90 NY2d 471, 484 (1997)]. The Court continued:

However, a plaintiff 'will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks' [defendant's] failure to warn of his intent to strike the ball did not amount to intentional or reckless conduct, and did not unreasonably increase the risks inherent in golf to which [plaintiff] consented. Rather, the manner in which [plaintiff] was injured — being hit without warning by a "shanked" shot while one searches for one's own ball — reflects a commonly appreciated risk of golf.

[Anand, 15 NY3d at 948 (internal citations omitted)].

Applying well-settled law from the Jenks line of cases together with Anand and its progeny, this Court must determine whether the Plaintiff was within the intended line of flight of the Defendant's tee shot and thus within the foreseeable ambit of danger.

In Jenks, plaintiff was not considered within the zone of danger when he was standing on another tee about 25 yards away from the intended line of flight. Judgment has favored the defendant golfer as early as 1950 in Johnston v. Blanchard, 301 NY 599, in which the Court of Appeals affirmed the Appellate Division where the plaintiff was struck while helping defendant find his ball in the rough. In Johnston, the Court found that "the jury was free to find that plaintiff had left a place of safety, with defendant's knowledge, in order to help defendant find his ball, and after it was found, was struck without warning when defendant played the recovered ball." In Trauman v. City of New York, 208 Misc. 252 (Bronx County, 1955), the trial court held that defendant golfer was under no duty to give advance warning to persons on a contiguous fairway where the danger was not reasonably anticipated and the plaintiff golfer must know that many bad shots carry the ball to the right or left of the intended line of play and that players could be endangered by such shots [Trauman, 208 Misc. at 256]. Similar to the instant matter, the location of the plaintiff in Trauman was in sharp conflict. In Rose v. Morris, 97 Ga.App. 764, 768 (1958), a Georgia case cited by the Court of Appeals in Jenks, the court found no duty to warn where the angle between the plaintiff and the defendant's intended line of flight for his shot was only 17 degrees.

As the foregoing cases demonstrate, the law in this jurisdiction favors the defendant in cases where the plaintiff was a victim of an errant golf ball struck by another player, even where both participants are on the same fairway.

Here, it is undisputed that at the time of the incident, the Plaintiff was playing on the 8th hole while the Defendant was on the 15th hole; and that the two fairways ran parallel, but in opposite directions and were separated by a dense line of trees. The Defendant testified that he did not see anyone on the 15th hole or in the vicinity of the tree line prior to hitting his tee shot. Significantly, the Plaintiff does not dispute this fact. In fact, the Plaintiff concedes he did not see anyone on the 15th tee box at any point prior to being struck. As such, it is undisputed that neither party saw the other prior to the incident.

However, a stark conflict exists as to the Plaintiff's exact location at the time he was struck. The Plaintiff claims he was at a distance of 80 yards from the 15th tee box, [*10]and at an angle of approximately 20 to 25 degrees from the center of the 15th fairway. However, nonparty witness, Luke, who played in the Plaintiff's own group, placed the Plaintiff under the line of trees separating the two holes closer to the 8th fairway at a distance of approximately 150 yards and an angle between 45 to 90 degrees. Mark similarly placed the Plaintiff in a shaded area under the dense line of trees closer to the 8th hole.

In light of the Anand line of decisions, the Court finds that summary judgment is warranted in favor of the Defendant, Weisner, under either factual scenario.

Accepting the Plaintiff's account of the events as true, he walked off the 8th fairway where he and his group were playing, and onto the 15th fairway where the Defendant and his group were playing, to look for a golf ball. The Plaintiff firmly maintained at his deposition that he looked at the 15th tee box on more than one occasion prior to being struck and did not see anyone before he put his head down to look for the ball and was struck less than a minute later. The flaw in the Plaintiff's position is the expectation to be seen when he admittedly did not see the Defendant or anyone else in his group just prior to being struck. Indeed, the Plaintiff concedes that he would have been obligated to allow the Defendant to play if he would have seen someone at the 15th tee box, since it was the Plaintiff that was on the wrong hole. Thus, the Court finds the Plaintiff's own testimony insufficient to raise a material issue of fact as to whether he was within the intended flight of the Defendant's ball and in plain view.

Summary judgment is also warranted under the second factual scenario, that the Plaintiff was struck under the thick canopy of leaves in the line of trees separating the 8th and 15th holes, but closer to the 8th fairway. This version of the events is supported by the testimony of Luke and Mark, and corroborated by the photographic evidence which plainly depicts the Plaintiff lying on the ground in the shaded area under the dense line of trees. Luke placed the Plaintiff at a distance of approximately 150 yards from the 15th tee box and at an angle between 45 and 90 degrees from the center of the 15th fairway. Mark similarly placed the Plaintiff in the middle of the tree line closer to the 8th fairway.

In Anand, summary judgment was granted to the defendant golfer where neither golfer saw the other despite being 20 feet apart and playing on the same fairway. Here, as in Anand, summary judgment is warranted where it is undisputed that neither party saw the other from a distance of 80 yards and an angle of 20 to 25 degrees. Indeed, the same holds true if the Plaintiff was located at a distance of 150 yards from the Defendant at an angle of approximately 45 degrees, and under a shaded area of the dense tree line separating the two holes.

While not the basis for granting summary judgment, the Court finds the Plaintiff's explanation as to the discrepancy in his location in the photographs depicting him on the ground under the swath of trees and the location where he marked an "X" on the open part of the 15th fairway is unsupported by the record. The Plaintiff could not recall how far he stumbled after being struck, while Mark and Luke unequivocally testified that the Plaintiff fell in the area he was struck. The only other evidence of the distance he [*11]purportedly stumbled is the Plaintiff's expert engineer who measured the distance between the two points to be 20 yards. While the Plaintiff does not address this issue in opposition to the Defendant's motion, the only explanation for the discrepancy would be that he stumbled 20 yards after being struck. Based on the entirety of the record before the Court, we decline to find a material issue of fact exists in this regard.

In any event, the Plaintiff's own testimony that he was at an angle of about 20 to 25 degrees from the center of the 15th fairway and a distance of approximately 80 yards is sufficient to conclude as a matter of law that he was not within the foreseeable ambit of danger. The Court further reiterates that the facts presented here warranting summary judgment are far more compelling than the facts in Anand where the claimed distance was approximately 20 feet and the plaintiff was struck while playing on the same fairway as the defendant golfer. In light of the similarity of the Plaintiff's version of the incident, which the Court accepts as true, and the facts considered by the Court of Appeals in Anand, this Court is constrained to find that the Plaintiff, Herman, was not within the foreseeable ambit of danger in this case.

Lastly, the Court notes that the Defendant's failure to give warning before hitting the ball does not require denial of his motion. As recognized by the Appellate Division in Anand, "a rule recognizing that liability can be predicated upon a golfer's negligent failure to give warning before hitting the ball is inconsistent with the doctrine of primary assumption of the risk " The Court continued, "[m]odern developments in the doctrine of primary assumption of the risk set limits on the duty of care owed to participants in sporting and recreational activities by requiring that the existence of a duty be evaluated against a consideration of the risks the plaintiff assumed when he or she elected to participate in the event, and 'how those assumed risks qualified defendants' duty to him [or her]'" [Anand, 61 AD3d at 790].

In this matter, the Plaintiff, an experienced golfer, knew or should have known that walking off his fairway and onto another golfer's fairway may not be safe. Simply put, the Defendant cannot be liable for hitting an errant golf shot where he could not anticipate that someone from an adjacent fairway would be looking for a ball in or around the line of trees separating the two holes, out of the Defendant's line of sight and intended line of play. The accident, while tragic, resulted from a known risk in voluntarily participating in the game of golf.

Accordingly, the Court is constrained to find that the Defendant's motion for summary judgment must be GRANTED, and the Complaint is DISMISSED.

This decision constitutes the decision and order of the court.

DATED: November 30, 2017

Mineola, New York

Hon. Randy Sue Marber, J.S.C. Footnotes

Footnote 1:For ease of reference, the Court shall refer to the sworn Affidavits submitted by the Defendant, Weisner, and nonparty witnesses, Sheldon Silverstein and Arthur Smith, all of which contain a summary of the pertinent portions of their deposition transcripts.