Rinaldo v. McGovern

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before CALLAHAN
• Citation: Rinaldo v. McGovern, 561 N.Y.S.2d 1006, 167 A.D.2d 942 (N.Y. App. Div. 1990)
• Decision Date: 16 November 1990
• Parties: Roberta RINALDO and Gary Rinaldo, Appellants, v. Arthur McGOVERN, Respondent, Springville Country Club, Inc., Defendant, Donald P. Vogel, Respondent.

Page 1006

561 N.Y.S.2d 1006

167 A.D.2d 942

Roberta RINALDO and Gary Rinaldo, Appellants, v. Arthur McGOVERN, Respondent Springville Country Club, Inc., Defendant Donald P. Vogel, Respondent.

Supreme Court, Appellate Division Fourth Department.

Nov. 16, 1990.

Matusick, Spadafora & Verrastro by Mitchell Matusick, Buffalo, for appellants.

Bouvier & O'Connor by Chris Trapp, Buffalo, for respondent, Arthur McGovern.

Cohen & Lombardo, P.C. by Jean Graziani, Buffalo, for respondent, Donald P. Vogel.

Before CALLAHAN, J.P., and DOERR, DENMAN, GREEN and BALIO, JJ.

MEMORANDUM:

Plaintiffs commenced this action seeking damages for personal injuries suffered by plaintiff Roberta Rinaldo when the windshield of plaintiffs' car was shattered by a golf ball. Plaintiffs were traveling on Route 219 in the vicinity of the 11th hole of the Springville Country Club. Defendants, Arthur McGovern and Donald Vogel, both had hit tee shots at the 11th hole which had sliced to the right, either into or over the trees that separate the fairway from Route 219. Supreme Court granted defendants summary judgment and we affirm.

Plaintiffs' claim alleging that defendants failed to give them timely warning of their intention to strike a ball was properly dismissed. This court has recently held that a golfer has no duty to warn persons who are not in the intended line of flight of an intention to hit the ball (see, Noe v. Park Country Club of Buffalo, 115 A.D.2d 230, 495 N.Y.S.2d 846; see also, Jenks v. McGranaghan, 30 N.Y.2d 475, 479, 334 N.Y.S.2d 641, 285 N.E.2d 876). If a golfer owes no duty to warn a person on another tee or fairway of his intention to hit the ball, he owes no duty to warn a person inside an automobile, driving by the golf course on an adjacent roadway. Moreover, even if such a duty exists, under these circumstances, where there would be only a remote possibility that plaintiffs would have heard or been able to respond to a warning if one were given, defendants' failure to warn was not the proximate cause of plaintiff's injuries as a matter of law (see, Nussbaum v. Lacopo, 27 N.Y.2d 311, 318, 317 N.Y.S.2d 347, 265 N.E.2d 762).

The only other conduct that plaintiffs alleged to be negligent was that defendants each hit a "bad shot." The Court of Appeals has held that the fact that a golfer hits a "bad shot" that either slices or hooks is not sufficient to permit an inference of negligence (Nussbaum v. Lacopo, supra, at 319, 317 N.Y.S.2d 347, 265 N.E.2d 762). "The mere fact that a ball does not travel the intended course does not establish negligence. '[E]ven the best professional golfers cannot avoid an occasional "hook" or "slice" ' " (Jenks v. McGranaghan, supra, 30 N.Y.2d at 479, 334 N.Y.S.2d 641, 285 N.E.2d 876). Rather, plaintiffs must prove that defendants failed to use due care in striking the ball (Nussbaum v. Lacopo, supra, 27 N.Y.2d at 318, 317 N.Y.S.2d 347, 265 N.E.2d 762).

Here, each defendant presented sufficient evidence concerning the manner in which he swung to demonstrate his entitlement to summary judgment as a matter of law. Each defendant testified at an examination before trial that he intended his shot to remain on the fairway. Defendant Vogel testified that he, in fact, had intended to hit the ball down the left side of the fairway. However, both shots sliced and the balls went into the trees which parallel the fairway and separate the golf course from Route 219. The fairway is bordered by a thick barrier of trees, and neither golfer saw nor heard a vehicle on Route 219 at the time he hit his ball.

In response, plaintiffs failed to come forward with proof that defendants did not exercise due care when attempting their shots (see, Nussbaum v. Lacopo, supra, 27 N.Y.2d at 319, 317 N.Y.S.2d 347, 265 N.E.2d 762). Consequently, defendants were entitled to summary judgment.

All concur, except Callahan, J.P., and Balio, J., who dissent and vote to reverse, in the following Memorandum: The majority holds that, as a matter of law, an injured passenger in a vehicle which is lawfully proceeding on a highway adjacent to a golf course has no cause of action against the golfer who drives a golf ball into the windshield of the car causing the driver to lose control and crash. We disagree; such a ruling is contrary to long established principles of law. Surely it is foreseeable that if a golfer drives a ball "out of bounds" onto the road it may strike an automobile. To absolve the golfer from fault against an innocent person is unjust.

Surprisingly, this is the first occasion for an appellate court in New York to address this issue. It is not, however, a case of first impression. In a similar factual situation, a nisi prius court held that a golfer and the golf club were jointly and severally liable for injuries sustained by a passenger in an automobile traveling along an adjoining public highway, when a golf ball struck the windshield (Gleason v. Hillcrest Golf Course, Inc., 148 Misc. 246, 265 N.Y.S. 886; see also, Annotation, Liability to One Struck by Golf Ball, 53 ALR4th 282, 327-328, 343).

The majority holds that a golfer has no duty to warn persons not in the intended line of flight of an intention to hit the ball (see, Jenks v. McGranaghan, 30 N.Y.2d 475, 334 N.Y.S.2d 641, 285 N.E.2d 876; Nussbaum v. Lacopo, 27 N.Y.2d 311, 317 N.Y.S.2d 347, 265 N.E.2d 762; Noe v. Park Country Club of Buffalo, 115 A.D.2d 230, 495 N.Y.S.2d 846). These cases, however, involve injuries to other golfers on the golf course or others on residential property abutting the course.

In our view, the Court of Appeals has recognized a distinction between persons within the foreseeable ambit of danger and innocent motorists lawfully traveling on a public highway. In Nussbaum, the Court of Appeals noted that the plaintiff (an adjacent land owner) "is not entitled to the same protection as the traveler on the public highway" (Nussbaum v. Lacopo, supra, 27 N.Y.2d at 316, 317 N.Y.S.2d 347, 265 N.E.2d 762). The right of the public to free and unmolested use of the highway is well defined (Tinker v. New York O. & W. Ry. Co., 157 N.Y. 312, 51 N.E. 1031), as the highways are created for public convenience to give the public the privilege of passage (Town of Albion v. Regan, 201 App.Div. 717, 718, 194 N.Y.S. 261).

The court in Gleason aptly noted that "[a] golf ball in itself is an innocent, lawful article, and so is the club which drives it * * * But, when driven, though in full compliance with the rules of the game,...