On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Botter, King and McElroy. The opinion of the court was delivered by King, J.A.D.
This is a personal injury action by plaintiff Sally Carrigan, with a derivative claim by her husband Kevin Carrigan, arising out of a golfing accident at the Fort Monmouth Golf Club. The complaint alleged that Sally Carrigan was struck in the head by a golf ball negligently driven by defendant who "failed to warn of the impending danger resulting therefrom." The United States Government, owner of the golf course, was not joined as a party defendant.
At trial the jury was given four interrogatories to answer, with no objection from counsel. R. 4:39-1. The first, whether Sally Carrigan was "within the foreseeable area of danger" when defendant hit the ball, was answered "Yes." The second, whether defendant gave "timely warning to Sally Carrigan of the actual flight path of the golf ball," was also answered "Yes." The third interrogatory asked the jury to fix the amount of damages which would fairly compensate Sally Carrigan. The jury answered "$50,000." The fourth interrogatory asked the jury to fix the damages on the derivative claim of Kevin Carrigan. The jury answered "$10,000." On the basis of these answers the judge molded a verdict of no cause for action on the ground that the jury found no negligence on defendant's part. Plaintiffs' motion for a new trial or a judgment n.o.v. was denied and they appeal.
The testimony established that on May 12, 1975 Sally Carrigan (hereinafter plaintiff), a novice golfer, was taking a lesson at the Fort Monmouth Golf Club from the club professional, John Welsh. The lesson was being given in the practice area located
along the left side of the first fairway. The practice area was protected by a twenty-foot high nylon net fence commencing about 180 yards from the first tee and extending for about 75 yards. The lesson was taking place in the practice area about 200 to 220 yards from the first tee and 40 to 50 yards to the left of the first fairway. Welsh testified that the practice area was "not located in the best area" and that it was "a very common situation" for balls hit on the first tee to land in the practice area.
As plaintiff was taking her lesson defendant and three companions were beginning a round of golf. Defendant, an experienced ten or twelve handicap golfer, hit a ball with his driver from the first tee. The first hole was a "perfectly straight" 388-yard par four. The ball began to "hook" to the left, away from the intended line of flight, over the fence and toward the practice area. Defendant testified that he had been aware that Welsh was giving a lesson to a woman in the practice area before he hit the ball, and that when he saw it hooking in that direction he "immediate[ly]" yelled "fore" and the other three members of his foursome also yelled "fore." According to defendant:
My observations, once I yelled, Fore, it appears to me that the female receiving the lessons turned toward the yell rather than -- this is my opinion -- rather than just ducking and I also saw Mr. Welsh attempting to grab her.
The golf ball struck plaintiff in the forehead.
Welsh testified that when he heard the word "fore" and realized that the ball was coming in his direction he reached for plaintiff and tried to get in front of her. However, plaintiff turned away from him and he heard the ball strike her forehead.
Plaintiff's testimony differed from that of defendant and Welsh. She said she heard the cry "fore" at the same time that she was struck in the forehead and that she did not recall Welsh grabbing her or attempting to assist her until after she had been hit.
Defendant testified that, as an experienced golfer, it was his practice to yell "fore" when he or ...