Two doctors are playing golf on Long Island. One hits such a poor shot from the rough that it hits his partner, standing somewhere off to the side, in the head. Whose fault is that?
New York's top court will hear arguments Tuesday about whether Dr. Anoop Kapoor was negligent and should have yelled, "Fore!" as a warning before the shot. A judge dismissed Dr. Azad Anand's lawsuit, finding he took on the primary risk by golfing.
A midlevel court, divided 3-1, agreed, concluding Anand was "not in the foreseeable danger zone" and his friend had no duty to yell the customary warning. Anand was blinded in one eye.
The Appellate Division majority also questioned whether even a negligent failure to warn another golfer before taking a swing is inconsistent with the doctrine that anyone stepping onto the course assumes the risk of getting hit.
"It relieves the striker of almost any responsibility whatsoever," said Steven Cohn, a lawyer representing Anand. "Common practice pretty much says you have a duty to yell, 'Fore!' You have a duty to know where the other golfers are."
A dissenting justice said there's a factual question under existing case law about whether Kapoor violated the sport's rule or custom, "unreasonably increased" his partner's risk and caused the accident.
The Court of Appeals is expected to rule next month after hearing oral arguments Tuesday.
The men, frequent golf partners, were playing in October 2002 at the Dix Hills Park Golf Course with another friend, Balram Verma. After hitting a second shot on the first hole, each set off to find his ball.
Anand testified that he was hit as soon as he found his ball and turned around, about 15 to 20 feet away from Kapoor.
Verma testified that Anand was about 20 feet away from Kapoor and about 50 degrees away from the intended line of flight for Kapoor's shot.
Kapoor testified that Anand was farther away and at an angle of 60 to 80 degrees. He said he shouted the warning when he realized the ball was headed toward Anand. Neither friend said he heard it.
According to the British Golf Museum, the term "fore" may have come from forecaddie, meaning someone employed to go ahead of players to see where their balls land. In his 1881 "The Golfer's Handbook," Robert Forgan wrote that a golfer shouts the word "to give the alarm to anyone in his way."
Cohn said his client, a neuroradiologist, was unable to work after he was hit by Kapoor's sliced shot. He said the case should not be dismissed without a trial.
"My argument is that the foreseeable zone of danger has to be a fact-driven issue," Cohn said. That danger zone isn't the same when, for example, the professional Tiger Woods is hitting a golf ball or Cohn himself is, he said.
Calls to Kapoor's attorney, William Hartlein, were not immediately returned.