Opinion
39122.
DECIDED NOVEMBER 16, 1961. REHEARING DENIED DECEMBER 4, 1961.
Action for damages. Albany City Court. Before Judge Jones.
Burt Burt, H. P. Burt, for plaintiff in error.
Farkas, Landau Davis, H. G. Rawls, James V. Davis, contra.
1. Those playing golf assume the risk of being struck by a hooked or sliced ball hit by a golfer in another fairway. Rose v. Morris, 97 Ga. App. 764 ( 104 S.E.2d 485). Therefore, a golf player driving from a tee box is not liable, by reason of his failure to give a warning signal before striking the ball, for injuries sustained when a golfer in another fairway is struck by a hooked ball.
2. An allegation of constructive knowledge that a golfer's drive has been hooked toward a player in another fairway is not, under the facts alleged in the petition, sufficient to charge negligence for failure to warn after striking the ball.
DECIDED NOVEMBER 16, 1961 — REHEARING DENIED DECEMBER 4, 1961.
James K. Thomas (plaintiff hereinafter) filed suit against Ralph W. Shaw (defendant hereinafter) for personal injuries allegedly sustained on a golf course. Plaintiff and defendant were both playing golf, were in different foursomes, and in different fairways. The pertinent portions of plaintiff's petition are as follows:
"4. Plaintiff alleges that he was playing on the number five fairway and had driven his tee shot down the fairway toward the green for a distance of approximately 200 yards and was standing in the fairway with his back towards number four fairway which lies east of number five fairway, waiting for one of the foursome he was in to make his shot approaching the green, when the ball driven by the defendant, after traveling a distance of approximately 200 yards, hit the ground near him, and on the first bounce, struck him in his left eye.
"5. Plaintiff shows that fairways four and five are adjacent and parallel to each other, approximately 80 or 90 yards in width, and extend, number four in a northeasterly direction from tee to green and number five in a southwesterly direction from tee to green, both being approximately 350 yards in length, and there is nothing between the said fairways to obscure the vision of the players from one fairway to the other.
"6. Plaintiff says that the defendant was and is an inexpert golfer to such an extent that he was and is not able to control the direction his golf ball travels after being driven by him, it not being unusual for him to either slice or hook the ball, as he drives it from the tee, which fact was known to the defendant but unknown to plaintiff.
"7. The defendant, at the time when he was preparing to make his tee shot from the number four tee, saw, or in the exercise of ordinary care could have seen the plaintiff and the other three members of his foursome, who were in plain view in the adjacent fairway, and were within the range of his shot, and the defendant knowing his inability to control the direction in which his shots traveled, should in the exercise of ordinary care have anticipated that his ball was likely to go in the direction of the plaintiff or some of the members of his foursome, and the defendant should either have avoided driving the ball until such time as the plaintiff and others should have removed themselves from the range of his shot, or should have given plaintiff warning before attempting to make the same.
"8. Plaintiff further shows that the defendant, in making the shot which struck this plaintiff in the eye as hereinabove alleged, was making his tee shot and the said ball, instead of going straight, made a decided hook of at least a 45 degree angle, over in the direction of this plaintiff.
"9. The defendant saw, or in the exercise of ordinary care should have seen, that his ball had hooked and was proceeding towards the plaintiff in time to have warned plaintiff, and the defendant had ample opportunity, had he been in the exercise of ordinary care, to call out `fore' or give some other notice or warning to the plaintiff, and had the defendant done so, plaintiff would have been notified of the danger in time to have avoided injury, but the defendant failed to do so. . .
"11. Plaintiff says that he was at all times in the exercise of ordinary care and diligence for his own safety and that his injury and damage which he sustained was proximately caused by the negligence of the defendant:
"1) In driving the ball from the tee which he was on at a 45 degree angle across, over and into the fairway upon which plaintiff was hit.
"2) In failing to call out `fore' after driving the ball and observing that it was proceeding in the direction of the plaintiff, in time to have afforded him an opportunity to avoid the ball striking him.
"3) In playing golf on a crowded course without possessing skill to enable him to drive a golf ball, generally, in the direction which he intended it to go, and knowing from prior experience that he would likely hook or slice the ball thereby endangering persons who would not be expecting a ball from defendant's direction.
"4) In driving the golf ball aware of his inability to control its course at a time when plaintiff and others were within range of his shot, without giving any warning, or waiting until they had removed themselves from the vicinity."
The defendant's general and special demurrers were overruled and he excepted.
The only Georgia case presenting the question of the intraplayer liability of golfers is Rose v. Morris, 97 Ga. App. 764 ( 104 S.E.2d 485). The factual situation presented by plaintiff's petition here is quite similar to the allegations in Rose. In both cases the plaintiff and defendant were playing in different and inversely parallel fairways. Also in both appear allegations that the ball after being struck deviated substantially from what would have been a normal shot; the variance in Rose being 17 degrees and here "at least 45 degrees." However, there are differences in the distance between the defendant and plaintiff (125 yards in Rose and approximately 200 yards here) and the defendant's location on the course (at the edge of the fairway on which plaintiff was preparing to tee off in Rose and at the tee box here).
The holding in Rose v. Morris, 97 Ga. App. 764, supra, was that a general demurrer to the petition was properly sustained. The court, in holding that the defendant was not negligent in hooking the ball, laid down the rule that ". . . [A]lthough a golf player must give adequate notice to those who are in apparent danger of getting hit by a ball, nevertheless people who are on a golf course must assume the risk of being injured from a defected [sic] or hooked or sliced ball." Under this "apparent danger-assumption of risk" doctrine, it is obvious that here, as in the Rose case, the plaintiff was not "in apparent danger" (i. e., in the intended range) of the defendant's shot and assumed the risk of being struck by a hooked or sliced ball hit by a player on another fairway. The factual situation here as outlined above is even stronger against the plaintiff than that appearing in Rose.
The plaintiff's allegation that the defendant was an "inexpert golfer to such an extent that he was . . . not able to control the direction his golf ball travels after being driven" is of no assistance to him here. Literally interpreted, this allegation means that the defendant is so inexpert that he cannot control the course of his ball after it is in flight. We are constrained to say that, as fondly as they may desire it, even expert golfers are unable to control the direction of the ball once it is in flight. Even using the allegation as plaintiff apparently intended it (i. e., to allege that the defendant was unable to control by his intent and desire before and at the time of driving the direction the ball took from the point where he struck it), it is common knowledge that so-called expert golfers make occasional hooked or sliced drives. It has been said that: "To hold that a golf player was negligent merely because the ball did not travel in a straight line, as intended by him, would be imposing upon him a greater duty of care than the Creator endowed him with the faculties to carry out." Page v. Unterreiner, 106 S.W.2d 528, 533 (Mo.App.). See Benjamin v. Nernberg, 102 Pa. Super. 471 ( 157 A 10). This reasoning also applies to the allegations of negligence contained in Paragraphs 11 (3) and 11 (4). For this court to hold that it was negligent for one to play golf who was not able to control the direction of his shot would not only be unreasonable but would remove all congestion on golf courses.
Plaintiff insists that at least his allegation relative to failure to warn after the defendant struck his ball is not within the rule of Rose v. Morris, 97 Ga. App. 764, supra, and he cites numerous foreign cases on this subject. His contention is based on the statement there, at page 768, that: "The petition alleges that the person making the shot should have yelled `fore' before making the shot, but the petition does not allege that it was negligence [sic] in not calling `fore' after he hit the ball, the hit resulting in an allegedly bad shot." Regardless of the intimation of the quoted dictum, we cannot sustain plaintiff's position under the allegations here. In Paragraphs 7 and 9, plaintiff alleges the defendant's knowledge that the shot was traveling in his direction in the alternative, which is an allegation of constructive knowledge only. Under the rule as set out in Fulton Ice Coal Co. v. Pece, 29 Ga. App. 507, 519 ( 116 S.E. 57), aff'd, 157 Ga. 105 ( 120 S.E. 636) which was adhered to in the recent case of Hillinghorst v. Heart of Atlanta Motel, 104 Ga. App. 731 ( 122 S.E.2d 751) and cases there cited, an allegation of constructive knowledge is not good against general demurrer where the duty to know does not arise by reason of the properly pled relationship of the parties. It is a necessary corollary to the "apparent danger-assumption of risk" doctrine of Rose v. Morris, 97 Ga. App. 764, supra, that a golfer is not an insurer of the safety of other golfers but is only required to exercise ordinary care. See Annot., 138 ALR 541 and 7 ALR2d 704, 716. The exercise of ordinary care here would not extend beyond the "apparent danger" zone or the intended range of the defendant's drive. This zone, where the defendant was at the tee box preparing to drive, as here, would include at most the fairway on which he was driving or at least that portion of the fairway within the probable range of his drive. Therefore, the duty of ordinary care would not here extend to this plaintiff an unspecified distance away in another fairway, and the allegation of constructive knowledge only is bad. Of course, since there is no allegation of actual knowledge (that the defendant knew that the ball, after being driven, was hooked in plaintiff's direction), we intimate no opinion as to the validity of such an allegation.
None of the plaintiff's allegations of negligence being sufficient to withstand general demurrer, it was error for the trial judge to overrule the defendant's general demurrer. Since the general demurrer should have been sustained, a consideration of the special demurrers is unnecessary.
Judgment reversed. Carlisle, P. J., and Custer, J., concur.