Richardson v. Muscato

— Order unanimously affirmed without costs. Memorandum: "A golfer has a duty to give a timely warning to other persons within the foreseeable ambit of danger” (Jenks v McGranaghan, 30 NY2d 475, 479; see also, Rinaldo v McGovern, 167 AD2d 942), but "there is generally no duty to warn persons not in the intended line of flight on another tee or fairway of an intention to strike the ball” (Noe v Park Country Club, 115 AD2d 230). Plaintiff Lawrence E. Richardson, who was in the vicinity of the 13th tee and about 20 to 25 feet from the 12th green, was struck on the head by a ball hit by defendant. Defendant was taking his second shot from the left side of the fairway, using a nine iron, aiming for the right side of the 12th green, but his shot pulled to the left. Defendant admitted that, before he took his shot, he observed people between the 12th green and the 13th tee and further acknowledged that there was only about 40 feet between the 12th green and the 13th tee. He 1228 also admitted that plaintiff and his party were only 20 to 25 feet off the 12th green when defendant took his shot. Under these circumstances, we conclude that whether plaintiff was in the foreseeable ambit of danger cannot be determined as a matter of law but, rather, presents a question of fact for determination by a jury. (Appeal from Order of Supreme Court, Erie County, Fudeman, J. — Summary Judgment.) Present — Doerr, J. P., Boomer, Pine, Balio and Lawton, JJ.