Bad golfers can now add Illinois to the list of states where they are relatively safe from liability for damage caused by lousy tee shots and/or failure to yell “Fore.” (Hawaii and New York are also on that list.)
In 2005, Ray Kinney was golfing at a Chicago country club when he launched a tee shot poor enough to miss the course entirely and instead sail into Lillian Demo’s backyard and allegedly connect with her skull. Demo sued, claiming the impact caused her to suffer migraines. She argued that Kinney had been negligent because he “failed to properly aim his golf shot; failed to properly execute the swing of his golf club; [and/or] failed to warn Plaintiff of his errant shot.”
Kinney claimed he had indeed yelled “fore” once he saw he had “pulled the shot.” Apparently no one actually saw the ball hit Demo, although Kinney said her husband confronted him shortly afterward. Kinney claimed that while standing near the fence he counted as many as 20 golf balls in the plaintiff’s backyard, which he appeared to be citing as evidence that this is common and so a plaintiff assumes the risk of it by living next to a golf course.
If you were thinking that the presence of the other balls could have been part of a defense argument that the plaintiff couldn’t identify the particular person at fault, it strikes me that this is probably not true. Had 20 negligent golfers hit balls into the plaintiff’s backyard at the same time, which is unlikely but something I would like to see, under Summers v. Tice they would all be jointly responsible if one of them hit her unless one or more could prove he was not the culprit. True, there was only one person hitting a tee shot in this case, but I just like the idea of 20 negligent golfers all hitting tee shots at a particular person at the same time.
It appears that, as in the Hawaii and New York cases, the defendant moved to dismiss the complaint for reasons including the “assumption of risk” doctrine. Kinney’s lawyer successfully argued that “bad shots are inherent in the game of golf,” and so people who choose to live near golf courses “should be aware of the risk involved.”
The judge also ruled there was no evidence that Kinney had been negligent in terms of his grip or swing, or that he was not “well-schooled in the mechanics of golf.” True, the ball did not go anywhere near a hole unless you count one of the seven in Ms. Demo’s skull, but the judge rejected her contention that the mere fact of a golf ball leaving the course proves negligence. If the assumption-of-risk doctrine applies, it doesn’t matter anyway, but maybe the judge did not want to slander Kinney’s golf game.
According to the report, the plaintiff got some money anyway because the country club settled for $30,000 rather than fight. Kinney had to pay his attorney, of course, but not the plaintiff. He was happy with the result, according to the Tribune, which reached him for comment via his cell phone. Kinney was on a golf course in Florida at the time, probably with people fleeing in all directions.
