Here, in America, among friends, mulligans are part of the game. In fact, President Clinton refused to count “do-overs” when calculating his score. In Scotland, by contrast, a mulligan off the tee, even among friends, is known as “Hitting Three.”
In Schick v. Ferlito, the New Jersey Supreme Court ruled that taking a mulligan when another golfer was in the “line of fire” (and failing to yell fore) constituted “reckless” conduct, and thus liability attached. In other words, in the context of recreational sports, to constitute a tort, conduct must exceed the level of ordinary negligence.
A recent New Jersey decision, Corino v. Duffy, et. al., seemingly endorsed the free grant of mulligans among playing partners. Corino suffered a serious eye injury after being struck by a mulligan sliced off the tee box adjoining the fairway on which Corino was playing. According to Corino, he carefully watched the threesome on the adjoining tee hit their drives. Unaware that Duffy’s playing partners allowed Duffy to take a mulligan, Corino took dead aim on his iron shot to the green, only to be struck by Duffy’s mulligan.
In light of Schick, Duffy sued the threesome claiming that all three engaged in reckless conduct by allowing a mulligan in the first instance, and then failing to yell fore as Duffy’s shot sliced toward Corino. As the matter unfolded, Duffy’s playing partners turned against him, claiming that Duffy struck the mulligan that injured plaintiff, and that they had no duty to yell fore. The trial court agreed.
Reading the Rules of Golf strictly, the court ruled that only the “player” who strikes the errant shot has the duty to yell fore. Beyond that, the court suggested that only a jury could make a determination of whether Duffy’s failure to yell fore constituted reckless conduct. Presumably, the court felt that, unlike Schick, Corino was not directly in the “line of fire,” and thus presented a much closer question of fact.
While it’s true that the Rules of Golf impose upon the player the duty to yell fore when an errant shot is struck, the rules also mandate that the ball must be played as it lies. If Duffy had followed the rules, Corino would have played on without injury. And that is the irony of New Jersey’s golf jurisprudence.