MILLIGAN v. SHARMAN (2008)

 Plaintiffs commenced this action seeking damages for injuries sustained by John Milligan (plaintiff) while he was playing golf on a course owned and operated by defendants.   Plaintiff was on the eighth hole when he was struck by a golf ball hit by another player from the ninth tee.   Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint.   It is well established that “golfers are deemed to assume the risks of open topographical features of a golf course” (Brust v. Town of Caroga, 287 A.D.2d 923, 925, 731 N.Y.S.2d 542), and defendants submitted evidence establishing that the proximity of the ninth tee to the eighth green and hole was open and obvious.  “Although the object of the game of golf is to drive the ball as cleanly and directly as possible toward its ultimate intended goal (the hole), the possibility that the ball will fly off in another direction is a risk inherent in the game” (Rinaldo v. McGovern, 78 N.Y.2d 729, 733, 579 N.Y.S.2d 626, 587 N.E.2d 264), and we conclude that defendants met their burden of establishing as a matter of law that “the injured plaintiff willingly assumed the risks consistent with participating in the sport of golf” (Lundin v. Town of Islip, 207 A.D.2d 778, 779, 616 N.Y.S.2d 394).   We further conclude that plaintiffs failed to raise a triable issue of fact in opposition to the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   The record does not establish precisely where plaintiff was located at the time of the accident, and thus the affidavit of plaintiffs' expert stating that the layout of the eighth green and the ninth tee was “unacceptably dangerous” and that plaintiff was located within an alleged “area of conflict” is based on mere speculation (see generally Bax v. Allstate Health Care, Inc., 26 A.D.3d 861, 863-864, 809 N.Y.S.2d 378). Plaintiffs' expert also failed to “identify any specific industry standard upon which he relied in concluding that the defendant[s] negligently designed the [golf] course” (Lombardo v. Cedar Brook Golf & Tennis Club, Inc., 39 A.D.3d 818, 819, 834 N.Y.S.2d 326).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: