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The Rules of Game: Judges As Referees

THE RULES OF GAME: JUDGES AS REFEREES. Let us start with the play-by-play. We are on the golf course. There is a foursome on the tee just ahead of us. One member of the foursome drives his cart to the next hole. (Let us call him Mr. Stopshot.) He parks his car in front of the tee area about 30 feet away from the tee and at an angle of about 45 degrees. Another member of the foursome (let us call him Mr. Duffer) approaches the tee. Mr. Duffer and Mr. Stopshot make eye contact at that point. Mr. Stopshot then proceeds to busy himself with such important distractions such as his water bottle and his cell phone. Mr. Duffer goes to the tee, steps back and takes a practice swing, then addresses the ball, and finally strikes his tee shot. He then looks up to see Mr. Stopshot lying on the ground as a result of having had the golf ball ricochet off his head. A very ungentlemanly lawsuit results. Both the trial court and the appellate court, facing those same undisputed facts, were forced to decide whether Mr. Stopshot could sue Mr. Duffer at all. Specifically, did Mr. Stopshot accept the risk of being struck in the head with a golf ball once he put his feet on the golf course? That was Mr. Duffer's main argument: It is all part of the game. For about 15 years the California courts have decided a group of sports-injury cases under the so-called "primary assumption of risk" doctrine. Under that doctrine a participant in a sport which poses an inherent risk of personal injury must accept that risk and, as a legal consequence, may not sue another participant who causes the injury. However, if the other participant intentionally causes the injury, he is not insulated from liability. When the California Supreme Court first adopted the doctrine, one purpose was, I believe, to simplify the decision-making process. Instead of having to second-guess what happened on the playing field and to decide after the fact which player was negligent in the encounter, the Court wrote a rule which would apply to a broad range of active sports. Judges, it was hoped, would not have to serve as Monday-morning referees. But the case I am describing, Shin v. Ahn [2d DCA, July 21, 2006], tends to undermine the purpose of adopting the primary assumption of risk doctrine in the first place. In our case the appellate court ultimately decided that Mr. Stopshot did not assume the risk of being hit by a golf ball by another member of his foursome, because Mr. Duffer violated a basic rule of the game (enacted by the United States Golf Association) that a golfer must look for anyone standing in front of him before taking a practice swing or hitting a shot. Stated another way, Mr. Stopshot did not assume the risk that a member of his foursome would violate that rule. Of course, the court noted, any golfer must assume the risk that he might be hit by a golf ball arriving from another fairway or even from a different group of players. On those shots the rule holds.

But what's the real difference? What if the golfer on the other fairway turns out to be a member of the victim's own foursome? Does it matter whether the stray ball resulted from a hook or a slice? I don't like asking impertinent questions. I just see no wisdom in having judges decide what is fair play and what is foul play in a given game. The appellate court stated the legal test in this way: First, is the careless conduct of the participant an inherent risk of the sport? Second, will finding a participant negligent alter the nature of the sport or chill participation in that sport? Certainly those are interesting questions. Yet to answer them one must become more than a person wearing a black robe. One must become a person with an intimate knowledge of not only the rules of the game, but also how the game is actually played and which rules are honored faithfully and which are routinely violated. While it is true in our case that looking out for other golfers in the line of fire does not inhibit any golfer from enjoying the sport, is it also true that every golfer on every shot looks carefully around so as to account for the other three members of his foursome? And how many golfers are acquainted with the rule that requires it? I would guess few, but I am confident that no court has ever conducted a survey to find out. In reality, in most sports rules exist not only to be enforced, but also to be broken in exchange for a penalty. In baseball, the batter goes to first base when hit by an inside pitch. But prohibiting a pitcher from throwing a fastball high and tight, or ejecting the pitcher from the game every time he throws at the batter, would necessarily hamper a legitimate strategy in baseball. An aggressive batter must be moved away from the plate.

The problem with the decision in our golf case is that it injects judges back into the middle of the game after the game has ended. In ruling on the liability of one player to another, the judge now must act as a referee after the fact. True, to those judges addicted to the sport the role of referee may seem enticing. It promises more fun than reading wills and evaluating inventories in probate court. But I am of the opinion that it is better to let the players play the game and to take their lumps as they receive them.

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