New Jersey has a long and rich history with the sport of golf. New Jersey is the home of classic championship golf courses like Baltusrol Golf Club (host of multiple U.S. Open and PGA Championships), new classics like Liberty National Golf Club and Trump National Golf Club, the number one ranked golf course in the world, Pine Valley Golf Club, and the headquarters of the United States Golf Association. Golf is one of the few sports where there are no referees or umpires; the implementation of the rules is left to the players themselves. For most recreational golfers however, the rules are not strictly followed and golfers will often take a do-over shot, commonly known as a “mulligan.”. But what happens if that mulligan happens to strike and injure another golfer? Since 2001, tort liability in golf has been based on a heightened recklessness or intentional conduct standard of care. However, in Corino v. Duffy, Judge Thomas R. Vena sitting in Essex County redefined tort liability in the golfing context.
II. Tort Liability for Recreational Sports in New Jersey
The seminal case for determining liability for injury that occurs while playing golf is Schick v. Ferolito. Prior to Schick, the New Jersey Supreme Court applied a heightened standard of care “to avoid the infliction of injury caused by reckless or intentional conduct” in recreational sports. In Schick, the Court was presented with the question of whether the heightened duty announced in Crawn should be applied to the golfing context.
In Schick, two pairs of golfers reached the tenth hole at the East Orange Golf Club, and agreed to play the remainder of the round as a foursome. On the sixteenth hole, an errant, unannounced mulligan hit by the defendant struck the plaintiff in the right eye, causing serious injury. After plaintiff filed suit, the defendant moved for summary judgment, arguing that the heightened standard of care from Crawn applied to golf, and the trial court agreed, dismissing the action. The Appellate Division reversed, and held that a negligence standard of care was applicable.
In answering the question before it on appeal, the high court was concerned with the promotion of participation in recreational sporting activities and the avoidance of a flood of litigation. Since the Crawn decision was announced, the recklessness standard of care has been applied in New Jersey to team competitions, one-on-one competitions, and individualized sporting events. In addition, several other jurisdictions, including Ohio,California, and Texas, have extended the recklessness standard to golf. The Schick opinion did not address whether hitting an unannounced mulligan while a playing partner was in the “line of fire” rose to the level of recklessness, it only held that the heightened standard of care applied to golf. The Appellate Division’s holding was modified accordingly.
III. No Companion Duty to Warn in Golf
On August 23, 2011, defendants Thomas Schwizer, Bryan Chovanec, and Kyle Duffy were playing golf together at Skyview Golf Club. Also playing at Skyview that day was the plaintiff, James Corino, and his brother Carl Corino. The defendants were teeing off on the sixteenth hole, which runs parallel, in the opposite direction, to the fifteenth hole, where the plaintiff and his brother were waiting to play their shots. The plaintiff and his brother waived the defendants on to play their tee shots on the sixteenth hole before proceeding with their own shots. After observing the three defendants play their tee shots, the plaintiff addressed his own golf ball to play his shot when defendant Duffy played a provisional second shot, which he sliced from the sixteenth tee box to strike the plaintiff on the fifteenth hole, shattering his sunglasses and severely lacerating his eye. Neither defendant Duffy nor his playing partners yelled “fore,” which is the customary warning, and neither provided any other kind of warning to the plaintiff. Plaintiff Corino brought suit against all three defendants, asserting that all three golfers behaved recklessly and violated the Rules of Golf by permitting Duffy to take a second provisional/mulligan shot, and by failing to warn by yelling “fore” or otherwise warn of the sliced shot.
In his order granting summary judgment for the defendant, Judge Vena reaffirmed the central holdings of Crawn and Schick that applied a heightened recklessness standard to golf. While the facts of this case are similar to those of Schick, Judge Vena distinguished Corino based on the fact that the two defendants seeking summary judgment did not themselves hit the errant shot; all they did was fail to yell “fore” or to otherwise warn. In other words, merely allowing defendant Duffy to take a mulligan is not enough to support the contention that the reckless conduct of one player is attributable to all members of the group.
Judge Vena also addressed whether a companion player is under an obligation to yell “fore” after an errant shot is hit. The applicable provision in the Rules of Golf states, “If a player plays a ball in a direction where there is a danger of hitting someone, he should immediately shout a warning. The traditional word of warning in such a situation is ‘fore.’” Judge Vena held that this rule does not bind a player’s partners, and thus, the duty to yell “fore” or otherwise warn “belonged solely to the acting player, Mr. Duffy.” Judge Vena declined to decide whether defendant Duffy’s failure to warn or yell “fore” constitutes recklessness.
Judge Vena’s order is significant for two reasons. First, Judge Vena specifically found that a group of golfers permitting one player to take a mulligan shot is not enough, on its own, to attribute liability to all members in the group. Second, Judge Vena clearly defined that the duty to notify bystanders of wild shots does not extend beyond the golfer swinging the club. It is clear, following this decision, that only the player hitting the errant shot may be liable for injuries caused by that shot. Pursuant to the holding of Corino, a plaintiff must not only be able to meet the heightened recklessness standard to prevail in a tort action stemming from being struck by an errant golf shot, he will also be limited to recovering only from the player that hit the shot. Judge Vena’s decision left unresolved the question of whether the failure to yell “fore” or otherwise warn by the swinging player after hitting an errant shot rises to the level of recklessness. Further litigation will be required to answer that question. Because this decision may be reversed on appeal, New Jersey golfers and their playing companions should take precaution and yell “fore” if an errant shot is hit.
* Jordan Hollander is a May 2014 J.D. candidate at Rutgers School of Law – Camden, and is the Submissions & Symposium Editor for the Rutgers Journal of Law & Public Policy. An avid golfer, the author played on the Men’s Golf Team at Lycoming College from 2006-2010 and taught at junior golf camps for the Somerset County Parks Commission for nine years.
 Schick v. Ferolito, 167 N.J. 7, 14 (2001).
 No. ESX-L-1111-12, 2013 WL 6223488 (N.J. Super. Ct. Law Div. Nov. 22, 2013).
 Schick, 167 N.J. at 14.
 Crawn v. Campo, 136 N.J. 494, 497 (1994).
 Schick, 167 N.J. at 10-11.
 Id. at 10.
 Id. at 13.
 Schick, 167 N.J. at 14.
 Thompson v. McNeill, 559 N.E.2d 705, 708 (Ohio 1990).
 Dilger v. Moyles, 63 Cal. Rptr. 2d 591, 594 (App. 1997).
 Allen v. Donath, 875 S.W.2d 438, 440 (Tex. App. 1994).
 Schick, 167 N.J. at 22.
 Corino, 2013 WL 6223488, at *1.
 Corino, 2013 WL 6223488, at *1.
 Id. at *2.
 Id. at *3.
 Rules and Decisions: Section 1 - Etiquette; Behavior on the Course, U.S. GOLF ASS’N, http://www.usga.org/Rule-Books/Rules-of-Golf/Etiquette/ (last visited Jan. 18, 2014).
 Corino, 2013 WL 6223488, at *3.
 See id.
 Steve Silver, New Jersey Redefines Golfers’ Tort Liability, THELEGALBLITZ.COM (Dec. 9, 2013), http://thelegalblitz.com/blog/2013/12/09/new-jersey-redefines-golfers-tort-liability/.