Golf at your own risk, court rules
By Ken Kobayashi
Advertiser Courts Writer
By Ken Kobayashi
A golfer who is injured by an errant golf ball cannot recover damages from the player who hit the ball, the Hawai'i Supreme Court has declared in establishing a principle that resolves an unsettled area of state law.
The decision likely will draw high interest in the golfing community. But because serious injuries by wayward golf balls are fairly rare, members of the golfing community aren't surprised by the decision.
"I don't think it will have any effect," said Greg Nichols, Ko Olina director of golf. "I think people who do play golf understand pretty quickly it's difficult to control where your ball goes and you need to play safely."
Still, the decision resolves a question of liability for golfers who might wonder what happens if their shot mistakenly hits someone.
The unanimous 43-page decision written by Chief Justice Ronald Moon affirms a state judge's decision to throw out a lawsuit by Ryan Yoneda, who was playing at the Mililani Golf Course in August 1999 when he was struck by a ball hit by Andrew Tom.
Yoneda had just finished putting on the fifth hole and was riding in a golf cart to the sixth hole when he was whacked in the left eye by Tom's ball. His left eye swelled shut and the black-eye bruise didn't go away for about a month and a half. He also suffered permanent vision impairment.
"It's like somebody grabbing a bat and whacking your face with it," Yoneda said last week.
Yoneda sued Tom, who had hooked his shot from the right side of the fifth fairway, and Sports Shinko (Mililani) Co. Ltd., the owner of the golf course at the time. The lawsuit was thrown out during pretrial proceedings and Yoneda's lawyer appealed.
The injury occurred on the par-72, 6,455-yard Mililani course that opened in 1966 and is now under a different ownership.
In its decision, the high court affirmed dismissal of the lawsuit, reasoning that Yoneda assumed the risk of the injury when he played golf. The court said it is "common knowledge that not every shot played by a golfer goes exactly where he intends it to go."
If the ball behaved as the golfer intended, there wouldn't be much "sport" in the "sport of golf," the court said.
The court's decision makes clear it does not cover a golfer who intentionally hits a ball to cause injury or recklessly hits the ball knowing that injury is highly likely.
The justices also reinstated the suit against Shinko. The court held that there was enough of a dispute that it should be a jury rather than a judge in pretrial proceedings to determine whether the golf course design was defective to the point it increased the risk of injury to Yoneda.
Sidney Ayabe, Shinko's lawyer, said he did not want to comment on the merits of the decision because of the pending reconsideration request, but said it's up to the injured golfer to prove the design is defective.
Yoneda's lawyer, Scott Kubota, said the decision eliminates a legal duty by a golfer to warn others about wayward shots.
He said Tom didn't yell out the warning "fore" to alert Yoneda about the ball. Kubota and Yoneda said the decision could lead to more danger on the courses, especially for newcomers who don't know the rules and think they are now immune from liability.
Tom's lawyer, Lorrin Kau, declined to comment because of the pending reconsideration request by Shinko. He said his client also declined to talk about the case.
But in a sworn deposition in the case, Tom, 33, who shot scores of 95 to 105 at the time, said he was about 175 yards from the green in the light rough when he hooked his 5-iron shot to the left.
The ball hit the fairway, bounced into the rough, then a dirt area, then on a cart path before it hit Yoneda, the court said.
Tom said he didn't yell "fore" because he hadn't seen the cart.
The high court noted that Tom did not yell a warning, but said shouting "fore" is golf etiquette, not a requirement recognized by law that would lead to liability by a golfer who breaches that etiquette.
The court said it finds "there is an inherent risk that golf participants will be hit by errant shots."
The justices cited Tom's statements that he did not see Yoneda because the cart path routed his cart around a restroom next to the fifth hole's green, out of sight from Tom, who was on the fairway.
Yoneda, 33, said he thinks the court's decision is not fair because it means a golfer who hits another golfer isn't liable, even though there was no warning.
Without the requirement of a warning, "a lot of people will get hurt," he said.
"With the ruling that warning is like an option, that's not too good," Yoneda said. "I know what it's like to be hit and I don't want anybody to go through what I went through."
Gary Wild, president of the Hawai'i State Golf Association and rules chairman of the organization who also officiates at golf tournaments, said the U.S. Golf Association under its etiquette rules requires a player to shout a warning if the ball is "in danger of hitting someone."
As of 2004, a player who repeatedly violates that rule can be disqualified, he said.
Speaking for himself, he said he supports the high court's ruling on golfer's liability for reasons similar to the court's: golfers know they can get hit by a ball.
"No one wants to hurt someone else out there playing golf," he said. "If something happens, I don't think a golfer should be liable for that."
Reach Ken Kobayashi at firstname.lastname@example.org.