1. If Zeidman had signaled to his partners that all was clear from the fairway and was then hit while returning in the cart, would Fisher be entitled to a summary judgment based on assumption of the risk?

2. What duty did Fisher owe Zeidman in the first place? Was it a special-relationship duty?

3. What other leisure sports or activities might be covered under the assumption-of-the-risk doctrine? Is it good public policy to shield negligent parties with the doctrine?

Zeidman and Fisher were participants in a golf foursome at a charity tournament. On one hole where the view of the fairway was partially blocked, the foursome became concerned that they might inadvertently hit any players hidden by the blind spots on the fairway ahead of them. The group agreed that Zeidman would take a golf cart and ride ahead to see whether the course was clear for the group to hit. Zeidman made his observation and returned to his foursome in the cart. Because he intended on returning to his foursome to report that the group ahead was out of harm’s way and because he never signaled to his group that it was safe to hit, Zeidman never entertained the possibility that one of his group would hit a shot. Before Zeidman returned, Fisher, becoming impatient, hit his shot while Zeidman was driving his cart back to the foursome. Fisher’s shot was errant, and the ball struck Zeidman in the face, causing serious and permanent injuries. The trial court dismissed Zeidman’s negligence lawsuit against Fisher on summary judgment, ruling that Zeidman had assumed the risk of participating in the golf match and this assumption of risk barred any recovery. Zeidman appealed. 

The Pennsylvania Superior Court reversed the trial court’s decision and ruled in favor of Zeidman. The court reasoned that the assumption-of-the-risk doctrine requires that the evidence show that the injured party (1) fully understood the specific risk, (2) voluntarily chose to encounter it, and (3) manifested a willingness to accept the known risk. In this case, an objectively reasonable person may have assumed that no risk existed because Zeidman’s agreed-upon task was to check whether the fairway was clear and then report to his own foursome if it was safe to hit. Because he had not yet completed this task, Zeidman did not manifest a willingness to accept a known risk. 

“In the circumstances of the present case, it is obvious 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. To grant summary judgment on the basis of assumption of the risk it must first be concluded, as a matter of law, that the party consciously appreciated the risk that attended a certain endeavor. . . . Accordingly, whether Zeidman is able to convince a jury that his version of events is true remains to be seen, he, in any event is entitled to his day in court.”