Golfing Buddies Off the Hook for Failing To Warn About Mulligan

, New Jersey Law Journal

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A New Jersey judge has refused to extend the duty to yell “fore” beyond the golfer swinging the club.

Essex County Superior Court Judge Thomas Vena dismissed claims against two members of a threesome who kept mum while the third took a mulligan that struck and injured another player.

Even if the bystanders agreed to allow the second tee shot, “it is the state of mind and conduct of the actor that is essential to a finding of recklessness,” Vena said in his summary judgment ruling in Corino v. Duffy. Any assessment of “the co-defendants’ respective mental states is irrelevant.”

According to the assumed facts, plaintiff James Corino and his brother Carl were on the 15th-hole fairway at Skyview Golf Club in Sparta on Aug. 23, 2011, when they paused for a threesome to tee off on the 16th hole. The two fairways were parallel, separated by a line of trees.

After the threesome—Bryan Chovanec, Kyle Duffy and Thomas Schweizer—each hit a shot each, Corino prepared to hit his own ball, unaware that Duffy was being allowed a do-over. No one in the threesome yelled “fore” or gave a warning.

The ball hit Corino hit in the face, breaking his sunglasses. Shards of broken glass cut his eye and he underwent several surgeries to restore his vision.

The suit charged that Duffy, Schweizer and Chovanec all acted recklessly by allowing Duffy the mulligan and failing to warn others.

Schweizer and Chovanec moved for summary judgment dismissing them from the case. Corino opposed.

The controlling case is Schick v. Ferolito, 167 N.J. 7 (2001), in which a golfer failed to announce a second tee shot and hit another player in the eye. The Appellate Division ruled that the negligence standard applied, but the state Supreme Court reversed, finding it necessary for the plaintiff to prove reckless or intentional conduct under Crawn v. Campo, 136 N.J. 494 (1994).

Vena found that under Schick, Duffy’s state of mind was paramount in determining if the conduct was reckless. He rejected Corino’s claim that all three players made the decision to allow Duffy to take a second shot.

Schweizer’s lawyer, Janet Pisansky of Burke & Potenza in Parsippany, says the ruling means being part of a golfing party does not create liability. Chovanec’s lawyer is Jay Weissman of Debra Hart’s law office in Morganville.

Corino’s lawyer, Daniel Hoberman of Hoberman & Brewster in Montclair, did not return a call.

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