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Tort; injuries sustained when struck by golf ball. Fulton Superior Court. Before Judge Pharr. March 20, 1958.
GARDNER, Presiding Judge.
F. W. Rose brought a personal injury suit against Brannon Morris. The petition, omitting the formal parts, reads substantially as follows:
Paragraph 3 alleges that on September 3, 1956, the plaintiff was injured as the result of the defendant's negligence.
Paragraph 4 alleges that on morning of said day the plaintiff was standing on the number 1 tee of the Ansley Golf Club in Atlanta, Fulton County, Georgia, preparing to "tee up" his golf ball and strike it in a southerly direction on the number 1 fairway.
Paragraph 5 alleges that the number 1 fairway runs generally northerly and southerly and that the number 2 fairway runs parallel and adjoins the number 1 fairway.
Paragraph 6 alleges that the number 1 fairway descends sharply in a southerly direction for approximately 110 yards to the bank of a creek, 15 yards across the creek and, after crossing said creek, the fairway continues for approximately 210 yards to the number 1 green.
Paragraph 7 alleges that the number 2 fairway runs in a south-to-north direction generally level approximately 190 yards to the southern bank of the creek then rising sharply uphill approximately 175 yards on the northerly side of the creek to the number 2 green.
Paragraph 8 alleges that the number 2 green is situated approximately 60 yards north of the number 1 tee and 20 yards to the east of said tee.
Paragraph 9 alleges that at the said time the defendant was playing the number 2 hole and "hooked" or "pulled" his ball to the defendant's left causing the defendant's ball to come to rest at a point on the eastern boundary of number 1 fairway, just south of the creek.
Paragraph 10 alleges that the defendant, "standing on the eastern boundary of the number 1 fairway, suddenly and without warning did strike his golf ball, driving same in a northwesterly direction and into and against petitioner's right leg."
Paragraph 11 alleges that the defendant gave no warning nor did he cry out the customary "fore" showing his intention to strike his ball.
Paragraph 12 alleges that the plaintiff was a member of a foursome and the other members had driven their balls from the tee in a southerly direction, and the plaintiff was bending down to tee up his ball when he was struck on the right leg by a golf ball driven in a northwesterly direction by the defendant.
Paragraph 13 as amended alleges that, in order for the defendant to drive or strike his ball from his position on the eastern boundary of the number 1 fairway to the green of the number 2 fairway, it was necessary for the defendant to make a shot or drive at approximately a 170 angle to the right of the number 1 tee, and that the defendant knew or in the exercise of ordinary care should have known that the plaintiff was ahead of him, there being no obstruction to block the defendant's view of the plaintiff.
Paragraph 14 alleges that there was another foursome besides the plaintiff's own foursome standing on the number 1 tee and that the defendant saw, or in the exercise of ordinary care should have seen, that said tee was crowded with players and that the plaintiff was bending down intent upon teeing his golf ball.
By amendment paragraphs 14-A, 14-B, and 14-C were added alleging that at the time the plaintiff was struck, the defendant knew that the plaintiff was on the tee with his back toward the defendant in a position approximately 170 from the intended flight of the defendant's ball; that the plaintiff was unaware of the defendant's intention to strike his ball, which the defendant knew or in the exercise of ordinary care should have known.
Paragraph 15 alleges that the plaintiff sustained serious, painful and permanent injuries and further describes the injuries and the treatment required in paragraphs 16, 17, 18, 19 and 20.
Paragraph 21 alleges that, prior to the time of said injury, the plaintiff was in good health and was actively engaged in business for himself as an electrical contractor.
Paragraph 23 alleges that by reason of said injury he was unable to carry on his business from the date of said injury until October 22, 1956, consequently incurring a loss of income between said dates.
Paragraph 24 alleges that due to said injuries the plaintiff's ability to earn money has been permanently impaired.
Paragraph 25 alleges that the plaintiff was 63 years of age at the time of the injury and had a life expectancy of 12.81 years.
Paragraph 26 alleges the negligence of the defendant in detail, including failing to call "fore" before striking the ball and in thus failing to warn the plaintiff that he was striking the ball when the defendant knew or in the exercise of ordinary care ought to have known that the plaintiff was at an angle of 170 from the intended flight of the defendant's ball and should have anticipated the danger resulting thereby.
Paragraph 27 alleges that the negligence of the defendant was the proximate cause of the injuries sustained by the plaintiff.
Paragraph 28 alleges that the action is brought to recover for pain and suffering and for loss of earnings and earning capacity as well as medical expenses.
The defendant's general demurrer to the amended petition was sustained. On this ruling the case is here for review.
It is a correct principle of law that on general demurrer all facts properly pleaded must be accepted as true. See Citizens & Southern Nat. Bank v. King, 184 Ga. 238, 247 (190 S. E. 857). It is also elementary that questions of negligence are ordinarily for determination by a jury. Counsel for the plaintiff relies on Hunt v. Thomasville Baseball Co., 80 Ga. App. 572 (56 S. E. 2d 828) wherein this court upheld the sustaining of a general demurrer. The petition there alleged that a person was sitting in an unprotected area attending a baseball game and was hit by a baseball sustaining injuries. In that opinion this court said: "Where a person wishing to witness a professional baseball game purchases a ticket and chooses or accepts a seat in a portion of the grandstand which is unprotected, he voluntarily assumes the risk inherent in such a position, he being presumed to know there is a likelihood of wild balls being thrown or batted into the grandstand thus unprotected. Where during the warm-up preliminary to playing such a professional baseball game a wild ball is thrown into that portion of the grandstand occupied by such spectator and he is injured, he cannot recover." Of course in the instant case the question is presented as to whether or not, as a matter of law, the petition set out a cause of action. The petition alleges that the person making the shot should have yelled "fore" before making the shot, but the petition does not allege that it was negligence in not calling "fore" after he hit the ball, the hit resulting in an allegedly bad shot. His fairway to the next green was clear when he made the shot, and the person who was hit was on another fairway, some 125 yards away. We are not intimating that the danger in a golf game might be as great as that to a person sitting in an unprotected area in a baseball park. Neither are we indicating that it might be less of a risk. We are constrained to say, however, that although a golf player must give adequate notice to those who are in apparent danger of getting hit by a ball, nevertheless people who are on a golf course must assume the risk of being injured from a defected or hooked or sliced ball.
It is our opinion that the pleadings in this case show as a matter of law that the defendant was not guilty of negligence in driving the ball as he did. We reiterate that the plaintiff was 125 yards away, not on the defendant's fairway, on another tee not in direct line with the intended direction the ball was shot, but was at an angle of 170 away from the defendant.
The court did not err in sustaining the general demurrer.
B. P. Gambrell, John E. Dougherty, contra.
Charles H. Hyatt, William Schley Howard, Jr., James V. Malcolm, Jr., for plaintiff in error.
DECIDED JUNE 23, 1958.
Saturday May 23 01:26 EDT

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