There’s always one guy in the foursome who hits the ball six(teen) times and writes down a four. He is the same guy whose ball miraculously lands on the edge of the fairway even though everyone in the group saw it drop directly into the middle of the woods without touching a branch. He takes between 6 and 10 practice swings. He often takes a “provisional,” which is really a mulligan, but when one calls it a provisional, it becomes an interesting type of shot that’s effect changes significantly from the time it is hit until the time that the player’s score is entered onto the card. When provisional guy declares he is taking a provisional, he does so in a fashion similar to this: “I’m going to take a provisional. I’ll only take it if I can’t find my first one.” The next step in the provisional process is usually: 1) the provisional guy will declare that he “lost his provisional but luckily he found his first one”; or 2) the provisional guy will not say anything and pretend that he never hit two balls in the first place. The final step in the process is always the same – the provisional is not counted and it is as if the first tee shot never happened.
Point is, everyone who plays golf has this friend (note: if you don’t have this friend, you probably are this friend), and the good news is that you no longer must calendar the date that the statute of limitations will run on every one of his mulligans, at least in New Jersey. Judge Vena’s recent opinion in Corino v. Kyle Duffy et al provides this provisional safety. In Corino, Thomas Schweizer and Bryan Chovanec decided to play a round of golf with Kyle Duffy on August 23, 2011 at Skyview Golf Club in Sparta, New Jersey. On the 15th tee, Duffy had one get away from him. It is unclear where Duffy’s shot went, but he apparently did not like the outcome. One thing is clear – Duffy has an awful slice, but a clear command of the aforementioned provisional maneuver.
Mr. Corino had the misfortune of being located on the 16th fairway when Duffy’s group was on the 15th. The layout of the course apparently provided the basis for this misfortune, as the 16th hole ran parallel to the 15th hole. Corino saw that all three members of Duffy’s group hit their tee shot, so Corino addressed his ball. Unbeknownst to Corino, while he was taking practice swings, Duffy was laying a foundation for the provisional with his golfing buddies (Disclaimer – this part is not in the record. All we know from the record is that Duffy took a provisional. The rest is speculation on the part of the author of this post). One does not take his time with a provisional. The quicker one steps up to hit a provisional, the less it seems like an extra stroke. A provisional, like a card trick, should be executed with sleight of hand. While Corino was hitting his shot on the 16th, Duffy quickly hit a provisional, which he (shockingly) sliced into the 16th fairway. Apparently, no one yelled “fore”, so the errant golf ball was a bad surprise for Corino. Duffy’s ball shattered Corino’s sunglasses and severely lacerated Corino’s eye.
Corino’s injuries were severe and not funny, but the fact that Corino joined Duffy’s golfing buddies in the ensuing lawsuit provides some comic relief to an otherwise dire situation. Corino sued Schweizer and Chovenac for allowing Duffy to take a provisional and for not yelling fore. Schweizer and Chovenac filed summary judgment motions. After reviewing the official rules of golf and New Jersey golf case law, the judge determined that it was Duffy’s duty to yell “fore” (or to provide some other warning), and that the other two golf buddies were in the clear. Summary judgment was granted and the claims against Duffy’s golfing buddies were dismissed. Great result for Schweizer and Chovenac, but does this holding have broader implications? Do the rules of golf now preempt principles of common law negligence? Does the violation of a rule of golf provide a basis for a negligence per se claim? Is every hacker on the golf course now imputed with knowledge of the rules of golf? Can someone be jailed for slowing down the group behind him or her? (the last one is wishful thinking).
(Hat tip: TortsProf Blog).