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HomeMy WebLinkAbout00-8133 CivilJAMES A. TOMKINS, PLAINTIFF V. GEORGE LONG, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-8133 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND HESS, J. OPINION AND ORDER OF COURT Bayley, J., January 6, 2003:-- On November 17, 2000, plaintiff, James A. Tomkins, filed a complaint against defendant, George Long, seeking damages as a result of injuries incurred during a round of golf on May 2, 1999, at the Cumberland Golf Club in Cumberland County. Plaintiff avers in his complaint, inter alia, that: 4. On May 2, 1999, between approximately 11:00 a.m. and 12:00 noon, Plaintiff was standing on the fairway of the 14th hole when he was struck in the right eye by a golf ball driven by the Defendant off the 15th tee, which resulted in injuries and damages to the Plaintiff. 5. This accident occurred as a result of the negligence of the Defendant and was due in no manner to any act, or failure to act, on the part of the Plaintiff. 7. The negligence of the Defendant consisted of the following: a) Failing to give the Plaintiff any warning, verbal or otherwise, of Defendant's errant golf shot; b) Failing to exercise reasonable care while hitting a golf ball; c) Creating the risk of foreseeable harm to the Plaintiff when Defendant knew, or should have known, that the Plaintiff and other golfers might be within the orbit of danger from Defendant's golf shot; d) Failing to comply with the customary and ordinary rules of the game of golf; and 00-8133 CIVIL TERM e) Failing to yell "fore" after Defendant knew, or should have known, that his tee shot off the 15th tee was errant and might pose an unreasonable risk of harm to other golfers, and the Plaintiff in particular. (Emphasis added.) 8. As a result of the negligence of the Defendant, the Plaintiff suffered serious and permanent injuries including, but not limited to, comminuted displaced frontal sinus fracture, comminuted displaced superior orbital rim fracture, displaced orbital roof fracture, closed head injury, sleep disruption, severe head and face pain, headaches, and a severe shock to his nerves and nervous system. The record shows that the 14th and 15th holes at the Cumberland Golf Club are essentially parallel to each other, with the 14th being a slight dogleg to the right, and the 15th being a slight dogleg to the left. In his deposition, plaintiff testified that he hit a drive on the 14th tee into his fairway. He drove a golf cart to where his ball was located approximately 155 yards from the 14th green. After hitting the shot toward the green, he got back into his cart, moved it a short distance on his fairway, and stopped while his playing partner hit his shot from the fairway to the green. Plaintiff testified: Q. What happened next? A. I just remember being struck, you know, just a fierce pain, you know, sharp pain to my head and the force of it knocked me out of the golf cart. Plaintiff's playing partner, Marc Voladka testified that he hit his shot from the fairway: And almost instantaneously upon my completion of my swing and my hit I heard a whisking sound in the air almost instantaneously followed by a scream [of Mr. Tomkins]. And as I turned around I saw Mr. Tomkins falling out the golf cart with his hand up over his eye. Neither plaintiff nor Mr. Voladka heard any type of warning from the defendant or any -2- 00-8133 CIVIL TERM other source at the time of the incident. Defendant testified in his deposition that he hit a driver off the 15th tee. He normally hits a driver between 240 and 280 yards. He testified: A. I remember teeing up the ball, lining up for my shot, taking the shot and I saw it heading left. I yelled fore. The other three in my group also yelled fore. I saw someone fall out of a cart and we went over to the cart to see what happened. When you stated that it headed left, was it a straight line left or was it- A. It was a straight line shot. Q. So it didn't go out straight and then hang a left, it went straight left? A. Yes. Q. Prior to teeing off did you notice anybody in the 14th fairway? A. I don't recall. Q. When is the first recollection that you saw somebody in the 14th fairway? A. After my drive I noticed there were people to the left of the divider trees on hole 14. Q. Did your ball go through the trees, into the trees or over the trees? A. Through the trees. Q. And did it hit any of the trees? A. I don't recall. Q. There's a distinct sound I know that when a ball hits a tree or going through the trees you can kind of hear it, you know, slapping the leaves as it goes by. Do you remember hearing that sound at all? hitting A. Q. A. Q. A. It didn't hit a tree solid. It may have brushed some leaves. You don't remember it hitting - do you remember a sound of it leaves? No. Did you actually see the ball hit Mr. Tomkins? No. Did you see Mr. Tomkins' reaction when he got hit? I saw someone roll out of the cart. Q. From the point where you teed off to where Mr. Tomkins was, was there anything obscuring your view of Mr. Tomkins? -3- 00-8133 CIVIL TERM A. There were large trees dividing the two holes. Q. And how was it that you saw him fall out of the golf cart? A. I was able to see people in that 14th hole, on that 14th hole, and I was able to see through the trees and see him fall out of the cart. Q. A. Q. fore? A. You indicated that you yelled fore? Yes. And you indicated all of the other members of your foursome yelled Yes. Q. How far do you think Mr. Tomkins was away from you? A. I would estimate about 140 yards? (Emphasis added.) Defendant filed a motion for summary judgment which has been briefed and argued. He maintains that the possibility of being hit by an errant golf ball traveling from one fairway to another is a risk assumed by plaintiff such that he cannot be held liable for negligence. In deciding this motion, "we must view the record in a light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Washington v. Baxter, 719 A.2d 733 (Pa. 1998). In Staub v. Toy Factory, Inc., 749 A.2d 522 (Pa. Super. 2000), the Superior Court of Pennsylvania stated: Our supreme court appears to have concluded that in a negligence action, the question whether a litigant has assumed the risk is a question of law as part of the court's duty analysis, and not a matter for jury determination. Howell v. Clyde, 533 Pa. 151, 160-64, 620 A.2d 1107, 1112-13 (1993) (plurality). See also Struble v. Valley Forge Military Academy, 445 Pa. Super. 224, 232, 665 A.2d 4, 8 (1995). In Hardy v. Southland Corp., 435 Pa. Super. 237, 243-45, 645 A.2d 839, 842 (1994), appeal denied, 539 Pa. 679, 652 A.2d 1324 (1994), this court -4- 00-8133 CIVIL TERM concluded that until the supreme court adopts clearer standards, assumption of risk should be analyzed according to the lead (plurality) opinion in Howefl. Under this "modified" form of the doctrine, assumption of risk is no longer an affirmative defense in most cases;6 rather, it is incorporated into an analysis of whether the defendant owes a duty to the plaintiff. Id.; Zinn v. Gichner Sys. Group, 880 F.Supp. 311,318 (M.D.Pa. 1995). "Howefl states that the trial court is obligated to review the factual scenario and determine whether '[u]nder those facts,.., the defendant, as a matter of law, owed the plaintiff no duty of care.'" Hardy, 645 A.2d at 842, citing Howell, supra at 162-64, 620 A.2d at 1113. This court has also held that "a plaintiff will not be precluded from recovering except where it is beyond question that he voluntarily and knowingly proceeded in the face of an obvious and dangerous condition and thereby must be viewed as relieving the defendant of responsibility for his injuries." Strub/e, 665 A.2d at 6, citing Long v. Norriton Hydraulics, Inc., 443 Pa. Super. 532, 662 A.2d 1089 (1995), appeal denied, 544 Pa. 611,674 A.2d 1074 (1996) (emphasis in Struble). As the plurality observed in Howell, supra, "the court may determine that no duty exists only if reasonable minds could not disagree that the plaintiff deliberately and with awareness of specific risks inherent in the activity nonetheless engaged in the activity that produced his injury." Howell, supra at 162, 620 A.2d at 1113 (plurality). As the Howell court continued, "If, on the other hand, the court is not able to make this determination and a nonsuit is denied, then the case would proceed and would be submitted to the jury on a comparative negligence theory." Id. The Howell court noted that "[u]nder this approach... assumption of the risk would no longer be part of the jury's deliberations or instructions." Id. (Footnotes 5 and 7 omitted.) (Emphasis added.) 6 In products liability cases, assumption of risk is still analyzed as an affirmative defense rather than as part of a 'no duty' analysis. Hardy, 645 A.2d at 842. See also, Romeo v. Pittsburgh Associates, 787 A.2d 1027 (Pa. Super. 2001). Defendant relies heavily on two cases in support of his position. Benjamin v. Nernberg, 102 Pa. Super. 471 (1931), and Boynton v. Ryan, 270 F.2d 70 (3d Cir. -5- 00-8133 CIVIL TERM 1958). In Benjamin, the facts and circumstances set forth by the Superior Court of Pennsylvania, were: [(p]laintiff) had played around the course to No. 6 green and was in the act of lining up his ball, preparatory to attempting to putt it into the cup, when he was struck in the mouth by a ball driven by the defendant. Defendant had played the course to No. 7 tee. He, too, was playing in a foursome, and when his party reached that tee, two of his companions, Steinberg, Jacobs, in turn drove their balls toward No. 7 green and defendant followed in an attempt to do the same. When he hit his ball, however, it did not go straight toward the green, but went at a sharp angle to the left and struck plaintiff, on No. 6 green. This green is not in the line of play from No. 7 tee. It is 120 feet to the left of that tee, and forward of it about 100 feet. At the time defendant drove his ball there was no one on No. 7 fairway or green in front of him. When he struck the ball, Shulgold, his other companion, seeing that it had been "hooked' toward plaintiff, shouted "Fore," but this warning was not sufficiently timely to save plaintiff. None of the three other players, Steinberg, Jacobs, or defendant himself, shouted "fore" or gave any warning whatever before defendant struck his ball. Shulgold testified that the defendant's ball "went straight the way he was facing" and that "he was not aiming at No. 7 green." This testimony is significant inasmuch as Shulgold admitted he did not give any warning until after the ball had been driven and he saw that it was traveling off the line and toward plaintiff. It is perfectly obvious that defendant's intention and effort was to drive the ball straight down the fairway to No. 7 green. There would seem to have been no doubt of this in the mind of any of the players, including Shulgold, because not one of them gave any warning until after he ball was driven. The contention of plaintiff was that defendant was guilty of negligence in not warning him by shouting fore before driving his ball. A jury returned a verdict in favor of plaintiff, but the trial court entered a judgment n.o.v, for defendant on the basis that no negligence had been shown and that plaintiff had assumed the risk of injury. The Superior Court of Pennsylvania affirmed the judgment of the trial court, concluding: -6- 00-8133 CIVIL TERM Here the entire No. 7 fairway was clear before the defendant; plaintiff was not in the line of defendant's play; he was not where anyone could reasonably believe that he was in danger of being struck by a ball driven from No. 7 tee; it was not until after the ball was driven and it appeared that defendant had made a bad shot, and when the ball was going directly towards plaintiff, that anyone thought it necessary to shout a warning. There was no duty, under the facts of this case, on defendant to warn plaintiff of his intention to play. We cannot see that defendant was at fault or that he disregarded any rule or custom of the game. It must be admitted that plaintiff assumed all the ordinary dangers incident to the game. Dou.qlas v. Converse, 248 Pa. 232, 93 A. 955 (1915). Having already decided that there was no duty on defendant to warn plaintiff of the intended play, it follows that, if plaintiff was struck by a ball driven by defendant, the plaintiff had assumed, as a matter of law, the risk of injury resulting from his own participation in the game he and all the others were then playing. It is well known that not every shot played by a golfer goes to the point where he intends it to go. If such were the case, every player would be perfect and the whole pleasure of the sport would be lost. It is common knowledge, at least among players, that many bad shots must result although every stroke is delivered with the best possible intention and without any negligence whatever. The plaintiff himself had been playing golf for a period of about 20 years and must therefore be held to be familiar with all the risks of the game. He must have known that many bad shots carry the ball to the right or the left of an intended line of play, and that if others were playing to the right or left, they would of course be endangered by such bad shots. This risk all golf players must accept. In Boynton, plaintiff's playing companion drove a ball off a 7th tee. Plaintiff and his companion had to look for the ball so they waved through a group behind them. Plaintiff walked to the extreme left side of the hole and placed himself behind a small tree to where the foliage partially cut off his view to the tee. Defendant, could only see portions of plaintiff's body because his view was interfered with by the tree behind which plaintiff was standing. Defendant drove off the tee and his ball hit plaintiff, causing him injury. In affirming an order of the trial court directing a verdict in favor of -7- 00-8133 CIVIL TERM defendant, the Third Circuit Court of Appeals stated: [p]laintiff went into a game, where, unless one has a private golf course of one's own, there is always a danger of being hit by a stray ball. Even the best of golfers is sometimes painfully surprised to see a hoped for straight shot slice into the woods. Or vice versa, a hook may land the ball in the rough on the left side of the fairway. Plaintiff knew all of this, of course; every golfer does and plaintiff had been a golfer for ten years. His situation is not unlike that of a spectator who sits in the bleachers at a baseball game and is hit by a foul ball. The risk of being so hit, with a chance to catch the foul and keep the ball, is one of the exciting thrills of attendance at the game. The fan cannot recover if the ball hits him instead of his catching it. See Schentzel v. Philadelphia National Leaque Club, 1953, 173 Pa. Super. 179, 96 A.2d 181; Hoke v. Lykens School Dist., C.P. 1948, 60 Dauph. Co. 226, 69 Pa. Dist. and Co. R. 422 n2. We think the same principle applies to participants or spectators in every form of sport where some danger of physical injury is involved. The plaintiff, recognizing the weakness of his case on this point, has suggested a second duty to which the defendant might be subject. His expert said that if a person strikes a golf ball and is able to see that the ball is traveling toward another person "under the unwritten rules of golf and the common courtesy observed by most golfers" the player driving should have shouted "fore." Plaintiff argues that this testimony was something which the jury should have been allowed to consider on the question of negligence. We think it pretty weak. Does the failure to observe "an unwritten rule" or "the courtesy of golfers" constitute the failure to exercise due care even though the person complaining is one who knows that the golf ball is about to come somewhere in his general direction? We think not. We think that this does not constitute an issue on negligence to be submitted to the trial fact. Further, we do not see any connection between a duty to shout "fore" after the shot and the prevention of the plaintiff's injury. Golf balls travel at great speeds and can change directions suddenly. We have no showing that from the time it became apparent, if it ever did, that plaintiff was in danger of being hit, the defendant's warning, if he had a duty to give warning, would have made any difference. And the reported instances where the belated call has been given, the target has only had time to turn a more vital organ toward the flight of the ball. See e.g., Biskup v. Hoffman, supra; Berry v. -8- 00-8133 CIVIL TERM Howe, supra. The conclusion is that there is no basis for holding the Defendant liable for this unfortunate action. The judgment of the District Court will be affirmed. The only Pennsylvania Supreme Court case on the subject is Getz v. Freed, 377 Pa. 480 (1954), in which the facts were: On September 8, 1951 plaintiff, defendant and two other men played a (golf) foursome at the Lebanon Country Club. After completing 18 holes they decided to play a few more holes, and no caddy being available they carried their own bags. Defendant, having the highest score on the 18th hole, was the last to drive on the Number 1 or 19th hole. Defendant "hooked" his first drive out of bounds--a distance of approximately 30 to 35 yards over a Iow stone wall which formed a parallel boundary line approximately 30 feet to the left of the fairway. Defendant naturally played a second drive--another very bad shot, which rolled about 40 yards from the tee into the fairway. Plaintiff and his partner offered to look for and pick up defendant's first ball. Defendant turned on the tee as if to walk over to his bag and plaintiff and his partner walked off the tee to find defendant's first ball. Neither plaintiff nor his partner paid any further attention to the defendant, but walked toward the boundary line. When they had reached the stone wall at approximately the place where defendant's first drive had gone out of bounds plaintiff heard someone call "Look out, Charles." At about the same split second plaintiff was hit on the back of the head by a ball which defendant had just driven from the tee. Plaintiff was awarded a verdict against defendant. Defendant's motion for a new trial and judgment n.o.v, were dismissed by the trial court. On appeal, the order of the trial court was affirmed. The Supreme Court of Pennsylvania concluded: A person who plays golf assumes some risks of the game. Cf. Benjamin v. Nernberq, 102 Pa. Super. 471, 157 A. 10 (1931); Dou,qlas v. Converse, 248 Pa. 232, 93 A. 955 (1915). For example, he knows that every star sometimes, and every "dub" ofttimes, hooks or slices, and that when he is playing on a parallel hole or on a parallel area of ground he may be struck by a wild shot. He also knows that if his opponent or partner discovers his ball is out of bounds and returns to replay the shot and he intentionally -9- 00-8133 CIVIL TERM remains within the orbit or possible orbit of the replayed shot, he risks being hit and injured. While few players know all the rules of golf, there are three rules and customs which all golfers know: (1) It is the duty of every player to give timely and adequate warning--usually by the word "fore"--of a shot which he is about to make and which he has reasonable grounds to believe may strike another player, caddy or spectator, either on the same hole or on a different hole--see Brusis v. Henkels, 376 Pa. 226, 230, 102 A.2d 146 (1954); (2) a player assumes the risk or is guilty of contributory negligence and want of due care if he intentionally or carelessly walks ahead of or stands within the orbit of the shot of a person playing behind him; and (3) it is negligence for a player to drive, without warning, another ball when his prior drive is on the fairway or apparently within bounds. This is a very unusual case. Defendant was undoubtedly guilty of negligence in driving a third ball when his second drive was in the fairway, and he failed to warn the rest of the foursome of his intention to hit a third drive. If defendant had played his second drive, plaintiff was behind defendant's ball (although widely to the left) and consequently outside the orbit of defendant's next shot, so that it would have been impossible for defendant to hit plaintiff if he had played his second ball. Under these facts the lower Court could not legally hold and the jury could not find that plaintiff knowingly placed himself in a position of danger or assumed the risk of being hit or was guilty of contributory negligence. We find no error in the Court's charge to the jury or its refusal to charge on the points of the assumption of risk and contributory negligence submitted by defendant. (Emphasis added.) In Jenks v. McGranaghan, 299 N.Y.S.2d 228, 32 A.D.2d 989 (1969), the facts were: [t]he Windsor Golf Course is so designed that the ninth tee is approximately 140 yards from the eighth and about 30 to 40 feet to the left of the center of the eighth fairway; that along one side and partially along another of those sides of the ninth tee facing the eighth there was a wire fence seven feet high; that in proceeding towards the eighth green, plaintiff, following the custom of others, left his bag of clubs outside the fence and about six feet therefrom, taking with him the clubs necessary to complete that hole; that plaintiff's playing companion teed off on the ninth and plaintiff, while bending over to select a club from his bag so placed, was struck by a ball hooked to the left by defendant from the eighth tee, -10- 00-8133 CIVIL TERM as a result of which plaintiff has sustained almost total loss of vision in one eye. Upon disclosure, plaintiff testified: that he did not know anyone was teeing off at the eighth tee and did not look to see if anyone was there; that he did not hear any call of "fore" prior to being struck but, if such a call was made, it was at the moment of impact; and that he had played the Windsor course a number of times previously, during which he had seen defendant there, as well as other balls being hooked into the ninth tee area. The Appellate Division of the Supreme Court of New York stated that "The sole question presented is whether a golfer struck by the misdirected ball of another golfer assumes the risk of injury as a matter of law." The Court concluded: A person playing golf owes a duty to use reasonable care to avoid injuring other players on the course, a player intending to strike a ball being under a duty to give a reasonably adequate warning, such as the traditional shout of "fore," to persons in his line of play or other in such a position that danger to them is reasonably anticipated. Although participants in and observers of sporting events generally are held to have assumed the risks of injury inherent in the sport such an assumption of risk does not preclude a recovery for negligent acts which unduly enhance such risk. While a golfer assumes the risk that a ball may be hit to the right or left, he does not assume the additional risk that another player will hit a ball without proper warning when the latter should have reasonably anticipated that there was a reasonable possibility that the ball might strike the former. There is evidence indicating the frequency with which balls were driven to the vicinity of the ninth tee, the occasions plaintiff drove balls there and the times plaintiff observed balls hit to that area. If defendant knew or had reason to know that balls were likely to land in plaintiff's location and drove the ball without an adequate warning, it could not be said that the danger to plaintiff was not reasonably anticipated and a jury could find that plaintiff did not assume such a risk. If it is established that plaintiff knew of the danger in the area and failed to look to the eighth tee to see if anyone was teeing off, a jury might find plaintiff guilty of contributory negligence. There are questions of act as to whether the danger to plaintiff was reasonably to be anticipated, whether defendant gave a proper warning and whether there was contributory negligence. (Emphasis added.) (Citations omitted.) -11- 00-8133 CIVIL TERM In Cavin v. Kasser, 820 S.W.2d 647 (MO Ct. of App. 1991), the facts were: [p]laintiff was familiar with the Creve Coeur golf course. He had played there numerous times and had regularly played golf for 12 years. Defendant had played golf for many years, was familiar with the Creve Coeur golf course and considered it a "tight" course. He usually drove the ball 175 to 200 yards. The length of the No. 2 fairway was 156 yards. The length of the No. 3 fairway was 385 yards. The two fairways were parallel to each other and played in opposite directions. The No. 3 tee was directly across from the No. 2 green. The No. 2 and No. 3 fairways were separated by trees but a person teeing off of the No. 3 tee had an unobstructed view of the No. 2 tee and a person at the No. 2 tee had a similar view of the No. 3 tee. Plaintiff and three others were waiting to tee off on the No. 2 tee. The club marshal was standing with this foursome. They were waiting for golfers to clear the No. 2 green. According to defendant, he did yell "fore" prior to striking the ball. However, as soon as he saw it was going to the left he yelled "fore," as did others in his group. Plaintiff did not notice defendant tee off but did hear the "fore" before he was struck and was in the process of responding by turning when he was hit on the cheek with the ball. J.B. Taylor, one of the employed marshals of the golf course, said he was standing with plaintiff's group as they prepared to tee off. He was watching defendant tee off and as soon as he heard the "fore" warning he also yelled "fore." The marshal's exclamation was made prior to the ball hitting plaintiff. In driving off the No. 3 tee, according to the marshal, the intended flight of the ball would be "down the No. 3 fairway ... if the fairway is open they tee off. They don't hold up because someone is standing on the 2 tee." Plaintiff sought damages for injuries resulting from his being hit by the golf ball. The trial court entered summary judgment for defendant. The Missouri Court of Appeals affirmed the order of the trial court. The Court concluded that defendant did not have a duty to warn plaintiff prior to hitting the errant shot because "[o]ne about to strike a golf ball must exercise ordinary care to warn those within the range of intended flight of the ball or general direction of the drive. The existence of such a duty to warn -12- 00-8133 CIVIL TERM must be determined from the facts of each case." The Court stated: [i]n the present case, it is agreed that defendant did not intend to hit the ball towards the No. 2 tee. His duty to warn therefore attached only when it became apparent the shot was errant and plaintiff was in danger. (Emphasis added.) The Court concluded: Plaintiff also contends that factual issues remain as to the timeliness of the warning that was made. We disagree. It appears to be an accepted rule of golf that, if no duty to warn exists prior to the striking of a ball, one does exist when it becomes apparent the ball is errant. Thomas v. Shaw, 271 Ga. 688, 124 S.E.2d 396 (1962). However, there is absolutely no evidence here that this duty was not met. Defendant testified that he and others yelled "fore" as soon as it was apparent that the drive was heading toward the second tee. A marshal heard the warning and repeated it before plaintiff was struck. Plaintiff admits he heard it before he was struck and attempted to react to it. Plaintiff does not reveal any evidence that this warning could have been made sooner and thereby prevented the injury. See Strand v. Conner, 24 CaI.Rptr. at 586-587. In the case sub judice, taking the evidence in a light most favorable to the plaintiff: (1) Defendant drove a golf ball from the 15th tee into the parallel 14th fairway where plaintiff was located only approximately 140 yards away. (2) No warning of "fore" or any other adequate warning was yelled before plaintiff was struck by defendant's shot. (3) Plaintiff, who did not see the ball coming, was struck in the head with sufficient force to cause significant injury. The issue before us has not been squarely addressed by the Supreme Court of -13- 00-8133 CIVIL TERM Pennsylvania. We reject the reasoning of the Third Circuit in Boynton v. Ryan, supra. As in the decision of the Superior Court of Pennsylvania in Benjamin v. Nemberg, supra, it rejects imposing a duty on a golfer toward other players. However, the Supreme Court, and courts in other jurisdictions that we have cited, recognize that a golfer owes certain duties to others. As the Supreme Court stated in Getz v. Freed, supra, which was decided twenty-three years after Benjamin, "It is the duty of every player to give timely and adequate warning--usually by the word 'fore'--of a shot which he is about to make and which he has reasonable grounds to believe may strike another player, caddy or spectator, either on the same hole or on a different hole." Therefore, it is not open season on golfers. Even very skilled golfers cannot control the flight of a ball on all occasions. While there is no duty imposed upon a golfer to make the ball go on an intended flight, every golfer must still be attentive to the path of a shot. Therefore, there is a duty to give an adequate warning where possible when there is reason to believe that someone may be struck. If, under the circumstances, a reason to believe that a shot might strike another person does not arise until after it is played, that is a distinction without a difference as it relates to this duty. The facts here are distinguishable from the cases that have held that a person assumes the risk of being struck by a batted or thrown ball. See Jones v. Three Rivers Management Corporation, 483 Pa. 75 (1978), Bowser v. Hershey Baseball Association, 357 Pa. Super. 435 (1986), Johnson by Johnson v. Walker, 376 Pa. Super. 302 (1988), and Deitrich v. Charles, Cumberland County (00-8572 Civil Term, March 6, 2002). -14- 00-8133 CIVIL TERM Spectators and players know that there is no time to provide an adequate warning in such situations. All golfers know that other golfers are likely to be playing on parallel holes. Plaintiff, while on the 14th fairway, did not assume the risk of being hit by a golf ball struck by defendant on the 15th tee, approximately 140 yards away, without an adequate warning as may have been possible if, under the circumstances, defendant had reasonable grounds to believe that his ball would strike another person. The traditional warning, although not an exclusive warning, is yelling "fore.''~ It is for a jury to determine the circumstances under which defendant hit his shot, whether he had reasonable grounds to believe that it would hit another person, whether an adequate warning was possible and was given, whether any failure to give an adequate warning as may have been possible was negligent, and if so whether such negligence was a substantial factor in causing injury to plaintiff. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of January, 2003, the motion of defendant for ~ In A History of Golf, Robert Browning, (1955, J.M. Dent & Sons), the author traces the use of the warning "fore" to the warning "Ware Before," which was given to guards of the gates of Scottish castles so they would drop to the ground as the defenders fired their guns over them. Thus comes the word "fore" which means "lookout in front" which is the most dramatic of shouts, which no one dares to let pass unheeded. -15- 00-8133 CIVIL TERM summary judgment, IS DENIED. By the Court, Edgar B. Bayley, J. Gregory E. Martin, Esquire 2 West Market Street P.O. Box 952 York, PA 17405 For Plaintiff Guy H. Brooks, Esquire 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 For Defendant :sal -16-