While trespassing on the golf course, Paul Lacopo (defendant) hooked a tee shot out of the fairway, through 20 to 30 feet of densely treed rough, and into Wilbur Nussbaum’s (plaintiff’s) patio, allegedly hitting him. Lacopo did not see Nussbaum and did not yell “Fore!” Nussbaum claimed it was the first golf ball ever hit into his property and sued Lacopo for negligence. Although he examined Lacopo before trial, Nussbaum did not question whether Lacopo’s shot itself was negligent. Nor did Nussbaum question two available witnesses to the incident. Instead, Nussbaum proceeded to trial solely on the theory that Lacopo’s failure to yell “Fore!” was negligent. The trial court dismissed the suit at the close of Nussbaum’s case. Nussbaum brought subsequent appeals to New York’s highest court.