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Andrew Bergh
Andrew Bergh

August 10, 2000

Yelling 'Fore!' isn't just good manners

By ANDREW BERGH
Special to the Journal

Tiger Woods rarely yells “Fore!”

But that’s no surprise. Not when you’re the best golfer this side of Mars.

For hackers like me, though, this four-letter word often comes in handy. Because if and when your golf ball takes an unexpected detour, it’s only courteous to scream “Fore!” at the top of your lungs so others can duck for cover.

In the case of errant golf shots, however, yelling “Fore!” isn’t just good etiquette – it’s also a way to minimize your liability. Because as shown by Gray v. Giroux, when an accident happens on the golf course, a lawsuit might not be too far behind.

The fateful date was Aug. 14, 1993.

That’s when Judith Gray and her husband were playing in a golf tournament at the Marlborough Country Club, a semi-private course in Marlborough, Mass. Rounding out their foursome were James Giroux and his wife.

For the first eight holes, play was uneventful. But then the group stepped up to the tee at the ninth hole, which was a slight dogleg right. (If you don’t know the difference between a pitching wedge and a putter, “dogleg” means a hole with a curved fairway.)

Both husbands hit poor tee shots. Giroux’s drive was the shorter of the two, landing in the left rough about 35 to 50 yards from the ball hit by Gray’s husband, which found the woods on the left side of the fairway.

Since her hubby’s ball was missing in action, Gray went to help.

Well, sort of. Instead of looking for the ball in the woods, Gray hovered near the left edge of the fairway. The last time she saw him, Giroux was standing near his ball in the rough.

With the benefit of hindsight, Giroux obviously should have determined the Grays’ exact whereabouts before taking his next whack at the ball.

But since Giroux, an experienced golfer, intended to smack it in the opposite direction, he never even looked for the couple. On top of that, Giroux never yelled “Fore,” or any other warning, either before or after his next swing.

Unfortunately, Giroux then hit one of the ugliest shots of his life. (I, on the other hand, would have far too many nominees for that distinction.) Instead of lofting his dimpled orb long and high to the right, the Marlborough Man hit a low screamer that went left.

For a split second Giroux maybe thought (or hoped) his ball was destined for the same woods that had snared his fellow golfer’s shot.

But no such luck, as his streaking sphere instead found a human hazard: Gray’s head.

Although I don’t know how badly she got hurt, Gray apparently suffered more than a scratch on the noggin. So in July 1996, she sued Giroux for damages, claiming her injuries were caused by his negligent and careless play.

On its face, one might think Gray had a pretty good case. After all, even though he knew the Grays were nearby, Giroux struck his ball without checking their precise location, and he also failed to yell “Fore!” or any other warning.

But Gray had a difficult lie. In an earlier case involving a hockey game, the Massachusetts Supreme Court had ruled that as a matter of public policy, a participant in an athletic event isn’t liable unless his conduct was “willful, wanton or reckless.” To impose liability for mere negligence, said the court, would only encourage litigation, which in turn would have a chilling effect on the “vigorous and active participation” in sports.

Given this earlier precedent, Giroux eventually moved to dismiss Gray’s suit. And in early 1998, the trial judge agreed that Gray had no case since she couldn’t show Giroux had acted willfully, wantonly or recklessly.

Gray not only refused to throw in the towel, she handled her own appeal. Golf is different, she claimed, because contact with other participants isn’t part of the game like in hockey.

But in June of this year, a Massachusetts appeals court ruled against Gray.

There’s no reason to distinguish between contact and non-contact sports, said the court, because the goal of discouraging litigation would still be thwarted.

The court likewise agreed that Gray had failed to show how Giroux was legally at fault.

It might have been a different story, of course, if Giroux had intentionally aimed in the Grays’ direction. But the mere fact his shot went awry, said the court, didn’t amount to willful, wanton or reckless conduct.

Talk about ambivalence!

On the one hand, I feel bad for Gray, who was in the wrong place at the wrong time.

But given my unpredictable golf game, another side of me is heaving a huge sigh of relief.


Seattle lawyer Andrew Bergh, a former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases. He fields questions via email at andy@berghlaw.com.


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