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A Good Walk Spoiled - Pennsylvania Superior Court Address the Assumption of the Risk and the "No-Duty Rule" on the Golf Course

December 1, 2009

Pennsylvania - Premises Liability

Key Points:

  • Duty owed to sport participants and spectators
  • The current status of the Doctrines of Assumption and "No-Duty" Rule


The quote "Golf is a good walk spoiled" is often attributed to Mark Twain. However, Mr. Twain's lesser known quote "Truth is stranger than fiction, but it is because Fiction is obliged to stick to possibilities. Truth isn't." may be more descriptive of the facts underlying the recent Pennsylvania Superior Court ruling in Zeidman v. Fisher, 2009 WL 2462563 (Pa.Super. August 13, 2009).

The plaintiff, Zeldman, was struck in the face by an errant tee shot, a "duck hook," hit by his golfing partner, defendant Fisher. A unanimous three-judge panel of the Pennsylvania Superior Court vacated a Philadelphia trial court judge's decision to grant summary judgment for the defendant, finding that the plaintiff golfer did not "assume the risk" that he would be stuck by an errant tee shot, as he had no reason to expect his playing partner would fire a shot while he made his way back to the tee box. Further, the court found the "no-duty rule" was inapplicable based upon the facts of this case.

That's What Friends are "FORE"

Zeldman, Fisher, and one other golfer made up a threesome that participated in a charity golf outing at the Springfield Country Club in suburban Philadelphia, Pennsylvania. As the group waited at the 301-yard long 17th hole tee box, they became concerned that Fisher, who could hit his drive over 300 yards, might inadvertently drive his ball into the group ahead, which had disappeared over the crest of a hill. Zeldman, with the agreement of his playing partners, drove his golf cart over the crest of the hill to determine if the other group was out of Fisher's range. After making his observation, Zeldman started back to the tee box. As he did so, Fisher launched his "duck hook," which struck Zeldman in the face.

The "No-Duty" Rule

The "no-duty rule" relieves a possessor of land of a duty of care towards an invitee who discovers a dangerous condition which is both obvious and avoidable, but nevertheless proceeds voluntarily to encounter that danger. The court acknowledged that the "no-duty rule" and the "assumption of risk" doctrine are often times equivalent.

The Pennsylvania courts have found that the "no-duty rule" is applicable to spectator sporting injuries, such as spectators at a professional baseball game who are struck by a batted ball. Jones v. Three Rivers Management Corp., 483 Pa. 75, 85, 394 A.2d 546, 549, 551 (1978). However, the Jones Court noted that the "no-duty" rule only applies to risks that are "common, frequent and expected" in the game. "The central question, then, is whether appellant's case is governed by the 'no-duty' rule applicable to common, frequent and expected risks of baseball or by the ordinary rules applicable to all other risks which may be present in a baseball stadium."

The Jones Court found the "no-duty" rule inapplicable to the facts of that case because the plaintiff was stuck by a batted ball not while in the stands, but while walking on an interior walkway of the stadium where the risk of injury by this method was not "common, frequent and expected."

Similarly, in Zeldman, the court concluded that, based upon the agreed upon forward observer mission, Zeldman had no reason to expect that Fisher would attempt his tee shot until Zeidman's return. Fisher had a duty to Zeldman to wait for Zeidman to return to the tee box before he attempted his tee shot. Therefore, under the circumstances of this case, the "no-duty" rule was inapplicable.

Just What Risk Is Assumed?

The Zeidman Court found that, "although a golfer's participation in golf, like a spectator's presence at a baseball game, may generally constitute an acceptance of risks inherent in the activity such that another golfer, or the golf course owner, may be relieved of a duty of care, we must always examine the circumstances surrounding the accident."

The court found that Zeidman, on returning from his forward observer mission, did not consciously assume the risk of "friendly fire when, to the contrary, he had every right to anticipate none of his playing partners would attempt a tee shot until his return to the tee box."

In other words, although the court acknowledged that a golfer, spectator, or sport participant accepts risks inherent in the game, the court will continue to weigh each case separately to determine if the injury sustained by the plaintiff was, in fact, the same risk of injury that was appreciated and assumed. In this case the court found that Zeidman presented evidence that the risk of injury he suffered was not "one inherent or common, frequent and expected in the game."

Therefore, the court found that Fisher owed Zeidman a duty of care and a jury question exists as to whether or not Fisher breached that duty. The court provided the factors a jury should consider in determining if Fisher breached that duty. Those factors include "Fisher's physical strength or power, his skill level, the quality of his play that day, his status as a professional or amateur, his knowledge of the etiquette of the game and the expectations of fellow competitors, the location of golfers within range of his tee shot and their awareness of his intention to hit a tee shot, and the need or lack of need to hurry or play fast."


The Zeidman Court noted that the continuing validity of the doctrines of the assumption of the risk and its close cousin the "no-duty" rule are in doubt. However, in actuality, the court, after analyzing the specific facts of this unique case, found the doctrines of the assumption of the risk and the "no-duty" rule to be inapplicable and instead applied general negligence principals and remanded the matter for trial.

Despite the Zeidman Court's noted doubts, the doctrine of assumption of the risk remains valid in Pennsylvania, at least in its primary and strict sense where it operates as a complete bar to a plaintiff's cause of action due to a plaintiff's voluntary exposure to an obvious known danger. However, as the Zeidman case illustrates, there remains some confusion in Pennsylvania as to the full force and effect of the doctrines of the assumption of the risk and the "no-duty" rule.

* Brian, an associate in our King of Prussia, Pennsylvania, office, can be reached at (610) 354-8271 or

Defense Digest, Vol. 15, No. 4, December 2009

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