Sunday, November 29, 2009

Two Stroke Penalty For Negligence? The Happy Gilmore Decision.

I enjoy golf - for the most part. I was once decent but over the last few years my scores have increased more than K-Fat's appetite. While I used to be concerned with how things turned out after 18, I now care a lot less. If my 9-iron is reading this post he is shaking his dented head and wondering if not caring is why I snapped him over my knee. I did it because it made me feel better. The other thing that generally makes me feel better is having fun on the course and not taking the game too seriously. It is a work in progress, but, I've come a long way. The point is, the game should be fun and the older you get, the more apparent that should be. That is why I was appalled when I read the Nova Scotia Court of Appeal's decision in the case of Bezanson v. Hayter - as Encyclopedia Brown might call it, "The case of the Happy Gilmore shot".

I had been waiting for the perfect opportunity to write about sports and law and today, it's time. Before I continue, I should point out once again that I am from Canada. Our legal system differs somewhat from the United States, so for our purposes, here is a quick hit in the law of negligence. This is in no way to be taken as advice. My lesson in civil negligence in four steps:

  1. There is a duty of care owed from one party to another. The standard of care varies on the situation.
  2. There is a breach of that duty of care.
  3. Injury results.
  4. The injury is caused the breach of the duty.

Got it? Good. It's important.

So, I was saying, my approach to golf now is that I should be having fun. From time to time, I have been known to swing the wrong way, hit a ball off a beer can or, more importantly, do the "Happy Gilmore". But, after reading Bezanson v. Hayter, I may end up checking my swing as I walk into my next tee shot. Why? Because the "Happy Gilmore", in Canada, now can end up in a pretty stiff penalty and there's no mulligan.

The day started like any other day, four guys, one being the bachelor soon to be wed, a golf course and, as the Judge stated, "an inventory of Baja Rosa Tequila, marijuana and Wildcat beer." Boom! By the 16th hole, the factual record states that Hayter had consumed nine beer and half a pint of tequila. Hayter put his tee shot in the bush and hit a second in the fairway. Bezanson and the others proceeded to their balls. Hayter did not.

With the three other players ahead, Hayter teed up a third ball and stepped into it - the "Happy Gilmore" shot. The ball struck Bezanson in the wrist and ricocheted into his chest. One of my favourite things in the court decision is that the "defendant maintained that he can reliably hit a "Happy Gilmore" shot". I have no idea how good of a golfer Hayter is or was. But, I do know that he had put his first shot in the trees and had admitted to having consumed nine beers and half a pint of tequila over roughly three hours (so, probably had drank more). I doubt he could reliably fasten the velcro on his glove.

Bezanson was left with permanent damage to the radial nerve or to a branch of the radial nerve. The judge found that Bezanson's current complex regional pain syndrome was directly attributable to the golf ball injury and my never fully heal. Bezanson sued Hayter.

Immediately I have a problem with this, as most people would. If you don't, you should. Negligence is an unintentional tort and it was never considered whether Hayter intended to strike or to bring harm to Hayter. Nor should it have been considered in a strictly legal sense. However, it should have been considered at least somewhat in Bezanson's contemplation of suing one of his friends - presumably a good friend. The end result was an award of $227,500.00. To me, it seems to be a shrewd and cowardly move on Bezanson's part. That is my opinion on the facts as I know them.

Basically, we have a small group of guys playing a sport, inebriated, perhaps a little outside of the normal boundaries and one gets hurt. To hold one of them liable for the resulting injury to the tune of a quarter of a million dollars is a little harsh. I can't even type what I'm thinking - we have editors. Put it this way, I have a feeling with the holiday season upon us, Bezanson shouldn't hold his breath to see if Hayter drops off a bottle of scotch - or Baja Rosa Tequila as is the case.

You just don't sue a friend in this situation. You don't. I presume there no insurance meaning Hayter pays from his pocket. In any event, Bezanson did not see it this way, there was a civil trial (and an appeal) and Hayter was held liable in negligence and ordered to pay Bezanson. Some friend. It is worth pointing out too that Bezanson had a pre-existing wrist condition (carpal tunnel syndrome) that limited him from his employment as a wood cutter.

So, my first issue was with a court action being initiated by one friend against another. That's just terrible friend etiquette. My second issue is with the Courts' decision itself.

"I am convinced that the 'Happy Gilmore' shot would have been less controllable than a normal tee shot," the trial judge wrote in his decision.

Back to my lesson on negligence. I will consider just the first two steps. I don't doubt Bezanson was injured. I don't doubt it was caused by a 100mph golf ball.

Step one - Is there a duty of care? According to the Court - Yes. In this case, I can accept and agree that there is a duty of care owed from one golfer to another on the course. However, I feel that the possibility of getting hit is an inherent risk of being on the course - not only from your playing partners, but, from everyone. The bottom line though, there is a duty of reasonable care to your playing partners.

Step two - Was there a breach? According to the Court - Yes. However, it appears the judge would have decided differently had Hayter not taken a Happy Gilmore shot. Does this make any sense? I think it sets a dangerous precedent. The breach has its roots in the danger or carelessness in taking a Happy Gilmore shot and hitting it poorly. The assumption is that hitting a Happy Gilmore shot is less controllable than a regular shot. This is not always the case. Regular shots are often hit just as poorly. I know.

Here's the thing, I have a hunch that Tiger Woods can control a Happy Gilmore shot. Picture this, I'm playing a round with Tiger, or better yet, Adam Sandler (we know he can control a "Happy Gilmore" shot!) and they take one, and strike me. Based upon the Nova Scotia precedent, am I precluded from suing them based upon their ability to 'control' the shot? What about if I get struck by just some hacker who can't control a stationary shot? Are they breaching the standard by taking a regular shot when they know there is a possibility they hit a wayward flier and strike a me? If that's the case, and right now it appears that it is, you can find my clubs on craigslist ( I clearly need to hang them up before I'm held liable for hitting somebody.

I simply think that the precedent now is too loose. In order to establish the proper standard of care, the Court will have to hear evidence on golf ability, or, more specifically, ability to hit a "Happy Gilmore" shot. Hayter tried to use his generally poor golf skills as a defence, to no avail. Happy wasn't a great 'stationary' golfer but he was a great golfer with his method. What if Happy hit somebody?

Hayter also argued the Bezanson consented implicitly to the risks of being on the golf course. The trial judge accepted this argument but stated further, "Mr. Hayter's behavior was not among the natural risks of golf to which the plaintiff can be said to have consented." The Court of Appeal judge agreed saying "Mr. Hayter's running whack, toward his playing partners ahead, deliberately abdicated control and was not an ordinary feature of the game."

I think it's pretty simple. Hitting a wayward shot is an ordinary feature of the game. No matter what stance or method was used to hit the ball, it happens. A lot. I cannot come to terms with why the method of hitting the ball or type of swing has anything to do with negligence - at least in this case. And the method of hitting ball really seems to be why the Courts found negligence. If Hayter had taken a normal swing, I cannot say with complete certainty, but it appears, the Court's would have found that getting hit was now among the "natural risks of golf".

So what are we left with? Regular swing, no negligence. Happy Gilmore swing, negligence.


Link to the Nova Scotia Court of Appeal decision.

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