Errant Golf Balls and the Law of Negligence

The following recent decision of the B.C. Courts has nothing to do with insurance law but may be of mild interest to homeowner insurers and of much greater interest to the numerous golfing fanatics throughout the insurance industry.

Liang v. Allen was a claim for damages arising from the plaintiff being injured by a golf ball struck by the defendant.  B.C. residents (not us, of course) might gloat to their eastern friends that the date of the incident was only two days after Christmas, 2001. The defendant, an 18 handicap, was playing the third hole of Victoria Golf Course. The plaintiff was on a public sidewalk beside the golf course setting up photography equipment.

The defendant had hit a poor drive.  It dribbled 55 yards into the rough on the left.  The third hole was 400 yards long, so he still had a long way to go.  His weapon of choice was a 3-wood.  But instead of driving the ball to glory down the middle of the fairway, he delivered an ugly hook to the left and into the hapless Ms. Liang, who later sued.

The Court defined the applicable legal test as whether the defendant "took reasonable care to avoid the act of hooking the ball" and whether he "acted as a reasonable and prudent person would act" in that regard.

The defendant had played the course often.  He knew a public sidewalk was nearby, although the plaintiff was not actually visible at the time.  Accordingly, the Court concluded it was reasonably  foreseeable that a hooked shot could possibly injure somebody on the sidewalk.

But the Court also ruled that the defendant had exercised reasonable care and there was therefore no actionable negligence.  Rather, the situation was simply an accident for which the defendant had no legal liability.

One wonders whether the presiding Judge was a golfer.  Certainly, the Reasons for Judgment seemed sympathetic to the golfing fraternity.  The Court observed (accurately, in our view):

"While the shot was hooked, it was nevertheless the type of shot that could happen to any golfer, however experienced";

"No golfer wishes to hook a ball";

"The defendant took reasonable care to strike his ball correctly but, as so often happens in golf, the shot did not go in precisely the desired and intended direction."

The Court did review earlier decisions, some of which had imposed liability on golfers for striking other people. It held these cases were distinguishable due to the visible proximity of the injured plaintiffs. In this case, the Court was not prepared to hold the golfer liable simply because the ball went astray and hit an invisible victim.

The plaintiff in this case didn't sue the golf course.  She probably should have.  Given the proximity of the road, the frequency with which balls doubtless traveled out of bounds, and the availability of netting or other mechanisms to help avert these types of incidents, there is a strong argument that the golf course would have been liable in nuisance or in negligence.

Anyone interested in reading the Reasons for Judgment in this case can access them at: 
http://www.provincialcourt.bc.ca/judgments/pc/2003/00/p03%5F0095.htm  

Clients from back East looking for a game of golf next Christmas, be sure to give us a call next December (and make sure your homeowners' insurance is in full force and effect!).