Denbo, Alexander

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Injuries on Golf Courses

Penn State Dickinson Law: IDEAS

Volume 36 Issue 3 Dickinson Law Review - Volume 36, 1931-1932 3-1-1932 Injuries on Golf Courses Alexander Denbo Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlra Recommended Citation Alexander Denbo, Injuries on Golf Courses, 36 DICK. L. REV. 183 (1932). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol36/iss3/8 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact lja10@psu.edu. DICKINSON LAW REVIEWdefend, it is perfectly clear that the insurance companyagrees to perform their covenant of indemnity against lossby assuming the liability and that payment by the insuredwas not a condition precedent."The weight of authority construes "to defend" asmeaning merely to contest the suit to final judgment.While in a technical sense to defend a suit is to contest it,the words "to defend" also include the broader meaningsuggested by the New Hampshire court.The Pennsylvania court 3' says "The insurer hassafeguarded its own interest by ascertaining through legalchannels that a fair loss has been sustained; by its ownconduct at the trial, it is estopped from denying its ownliability and cannot prevent the indemnitee from recover-ing, though the indemnitee's liability has not been dis-charged by payment." This is not new in the Pennsylvanialaw, it having been asserted previously.3 5 Under thistheory, the court in the West case said, in reference to the"'no action" clause, "It is the joker of the policy and hasbeen written out by many legislatures."We may then conclude that the West case does notchange the law in Pennsylvania but merely supplies dictumthat, if followed in the future, will render a "no action"clause one of indemnity against liability as contrary toindemnity against damages.The necessity of legislation upon this point is urgent.It should be the duty of the Assembly of Pennsylvania tolegislate upon this subject and safeguard this judicioustrend set in motion by the two recent cases, as the courtsin the future might stay this movement toward advance-ment.Adolph D. Weiss.INJURIES ON GOLF COURSESThe rule seems to be without doubt in Pennsylvaniathat to maintain an action for damages for an injury8 4West v. MacMillan, 301 Pa. 344 (1930)."5Malley v. American Indemnity Ins. Co., 297 Pa. 216 (1929).DICKINSON LAW REVIEWcaused by the alleged negligence of another, there must bea breach of some duty which one party owes to the plain-tiff, whereby the latter suffers injury; which injury mustbe the natural and probable consequence of the negligence,such a consequence as under the surrounding circum-stances of the case might and ought to have been foreseenby the wrongdoer as likely to flow from his act.1 The ex-istence of a duty in any particular case, is to be determinedby the reasonable anticipation of a normal man. Thusone is not bound to control his acts with regard to thosewho can be only possibly affected by the manner in whichhe acts; he owes a duty of care to those only whom thenormal man should foresee that his lack of care might in-jure.2Likewise it has been held that one who voluntarilyexposes himself or his property to a known and appreciateddanger due to the negligence of another may not recoverfor injuries sustained thereby even though he was in theexercise of ordinary care. This doctrine of "assumptionof risk" is said to rest upon, or be in its nature, effect andimport, the equivalent at least of the principle expressedby the maxim "Volenti non fit injuria", and is to be dis-tinguished from the doctrine of contributory negligencebecause the former is applicable, even though the personinjured was in the exercise of ordinary care.3The very recent case of Benjamin v. Nernberg4 pre-sented the question of liability for injury to a fellow playeron a golf course. The defendant was relieved on thetheory that there was an assumption of risk by the plain-tiff. In that case the plaintiff, while standing some forty-eight feet away from the line of flight and where onecould not reasonably believe that he was in danger of beingstruck by a ball driven from the other green, was hit by'Hoag v. Railroad, 85 Pa. 293, 298 (1877); Wood v. Pa. R. R.,177 Pa. 306, 35 Atl. 699 (1896); Sturgis v. Kountz, 165 Pa. 364, 30Atl. 976 (1895); Scott v. R. R., 172 Pa. 646, 33 Atl. 712 (1896).zBohlen, Studies in Law of Torts, p. 6. (1926).sTomey v. West Penn Rys. Co., 300 Pa. 189 (1930); 45 C. J.683.'157 At. (Pa. Super. Ct.) 10; 79 Pitts. Legal Journal 47 (1931).DICKINSON LAW REVIEWa golf ball driven by the defendant when the ball wassliced. It was not until the ball was going directly towardthe plaintiff that anyone thought it necessary to shout awarning. The court in refusing recovery said, "If plain-tiff was struck by a ball driven by defendant, the plaintiffhad assumed, as a matter of law, the risk of injury result-ing from his own participation in the game he and allothers were then playing."There appears to be no reason why this case could nothave been decided without referring to this theory of as-sumption of risk. Especially is this true since the courtrecognized that a golfer when making a shot must givea timely and adequate warning to any persons in the gen-eral direction of his drive. Since the plaintiff was not inthe line of flight of the ball which the defendant was aboutto drive, no duty rested on the latter to inform him that aball was about to be driven. Therefore, since there was nobreach of duty on the part of the defendant and the injurynot being one which was reasonably forseeable from hisact, he should have been relieved from liability on thatground.5This case does not appear to be in conflict with thecase of Toohey v. Webstere which held that the plaintiffcaddy, although voluntarily present upon the golf linksduring the playing of the game, did not assume the risk ofbeing struck by a golf ball. The court based its decisionon the fact that the defendant failed to give an audible andtimely warning in the proper manner before he made hisshot, to one to whom harm was reasonably foreseeablefrom such intended shot.Thus we see as to fellow players and caddies wherethere is harm reasonably foreseeable from the shot in ques-tion, there is a duty to give an adequate warning of the in-tended shot. For injury resulting proximately from thefailure to perform this duty, liability attaches."The same principle could be applied to the case of Andrey v.Sterendon, 31 Scotch Law Review 194, 198 (1906), which is analogousto the instant case.6117 AtL (N.J.) 838 (1922).DICKINSON LAW REVIEWThe cases discussing the liability to a mere spectatorwhile on the course, entirely disregarded the theory ofassumption of risk by such person injured. In the Englishcase of Cleghan v. Oldham,7 the defendant "followedthrough" in such a manner that the plaintiff was struck andinjured. The defendant testified that she did not lookaround before making the stroke. The court observed thatin all such cases a person must refrain from doing what areasonable person would not do and if a jury had concludedthat a person had done something which a reasonable play-er in the circumstances would not have done and if injuryresulted therefrom, the person is liable in an action fornegligence.Likewise in Schlenger v. Weinberg,8 the plaintiff wentvoluntarily to see the links and as his injury was an un-foreseen and unusual incident that occurred while he wasin the act of realizing his intention, the court consideredthe injury was not the natural and proximate effect of thefailure to give warning either by the "member" or the pres-ident of the "club". But where such member knows thatthe plaintiff might reasonably be expected to be struck,he is under duty to give a warning of the danger to beincurred."As to the liability for injuries to a passerby on a near-by street, caused by a ball which has been played from thecourse, there seems to be no dispute. Both the golf cluband the player have been held liable for injuries ;o the clubon the theory of the proximity of the course to the high-way and the consistent frequency with which balls fellinto the highway, which rendered this particular part ofthe course a nuisance; and the player apparently on thetheory that he was negligent in driving while there wassomeone on the highway who might be injured by a mis-directed drive. The liability of both being based on thereasonable foreseeability of harm to persons on the high-743 Times Law Report 465 (1927).8150 Atd. (N.J.) 434 (1930).9Biskup v. Hoffman, 287 S.W. (Mo.) 865.10Castle v. St. Augustine Links, 33 Times Law Report 615 (1922).DICKINSON LAW REVIEWway, it follows that the mere ownership of the golf coursewould not impute such liability for injury to one struckby a golf ball driven by a player on the course."Although the game of golf has been played for manyyears by hundreds of thousands of our residents, seriousaccidents have been so few that there is very little preciseauthority to help the courts.12 However, if our own con-ception of the few decided cases is correct, there appearsto be no reason for confusing the issues by relieving thedefendant from liability on the theory that there was anassumption of risk by the injured party. Liability in allsuch cases should be sustained only on the ground thatthere was a breach of some duty which one party owesto another, whereby the latter suffers injury, which wassuch a consequence as under the surrounding circumstancesof the case, might and ought to have been foreseen by thewrongdoer as likely to follow from his act. Only wheresuch a breach of duty is found does assumption of risk be-come involved.Alexander Denbo.NOLO CONTENDERE IN PENNSYLVANIAThere has been somewhat of a conflict of authorityas to the propriety of the plea of nolo contendere in Penn-sylvania where defendant is indicted for any crime whichis greater in degree than a misdemeanor.It is the purpose of the writer to explain herein thepurpose of entering such plea and when it may be enteredin Pennsylvania so far as the cases have decided. Nolocontendere is synonymous with non vult contendere (thirdperson) and non volo contendere (first person)."The so-called plea of 'nolo contendere' is not a pleain the strict sense of that term in the criminal law, but aformal declaration by accused that he will not contehdwith the prosecuting authority under the charge. It is11Schlenger v. Weinberg, 150 Ad. (N.J.) 434 (1930).12Toohey v. Webster, 117 At!. (N.J.) 838 (1922).

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Injuries on Golf Courses

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