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Joe Perches

Design flaw suits
« on: January 06, 2008, 02:34:07 PM »
http://hamptonroads.com/2008/01/woman-struck-golf-ball-files-suit,-alleging-design-flaw-beach-course

Is suing for a nominal golf course design defect a common and effective tactic?
« Last Edit: January 06, 2008, 02:36:13 PM by Joe Perches »

Matt_Cohn

Re:Design flaw suits
« Reply #1 on: January 06, 2008, 05:07:05 PM »
These seem to be the holes in question - #16 par-3 over water, #17 very narrow teeshot playing back in the other direction.




Ray Richard

Re:Design flaw suits
« Reply #2 on: January 07, 2008, 08:24:59 AM »
I've heard of a few. In most cases the lawyers send a letter to the club threatening to sue, and the club will fix the problem themselves,usually by sharpening the angle of a dogleg or shortening a tee.

John Kavanaugh

Re:Design flaw suits
« Reply #3 on: January 07, 2008, 08:33:17 AM »
Everyone who is on the course should pay a green fee or stay home.  I'd like to know if this girl even payed a cart fee...If not, have her arrested for tresspassing.  When a course is aware of spectators they institute the proper safety measures such as marshalls and ropes.  We can not afford to have every course designed like a TPC with special spectator areas.  I seriously doubt that a cart holding area would be used for galleries if a tournament was held at this location.  If she was where she should have been, as a golfer, she would not have been hurt.
« Last Edit: January 07, 2008, 08:38:28 AM by John Kavanaugh »

BCrosby

Re:Design flaw suits
« Reply #4 on: January 07, 2008, 08:38:33 AM »
Keep us posted as things develop.

Having done a little reserach over the years, there are very few design negligence cases. The ones that are reported come down hard on assumption of risk. Especially where  risks are foreseeable in light of normal assumptions about where golfers might miss balls.

It will be interesting to see where this case goes. My hope is that it is not settled and that there is a written decsion for everyone to see. Personally, I think these sorts of cases are silly. It would be good for all concerned to have a well reasoned verdict for the defendants in the books. It might give pause to plaintiff lawyers in the future.

Bob

Jeff_Brauer

Re:Design flaw suits
« Reply #5 on: January 07, 2008, 11:48:53 AM »
Most of the comments on the papers web site were similar to how we would feel here.

That said, there are lawsuits, although Bob Crosby did a web search and found that overall, golf courses don't face near as many as other type venues. I think I have read where more than half (maybe 55%) go in favor of the golf courses, but am not sure if that includes settlements, as most never get to court. But, they do happen.

I am no lawyer, but try to keep up with the issues since they affect me.  Basically, a course and gca can be sued for anything, probably even if a waiver has been signed. (although I had one potential case against me that went away because of a strong waiver)  And, they can lose if they should have been able to foresee an inherent problem.  (in most areas)

The expert witness in this case who is for the plaintiff will probaby cite any distance separation standards between green and tee (like the ULI book by Rees Jones, , Richardson, Hurdzan, etc.) as well as Hurdzan's writings that a 15 degree "safety cone" should be established on each side of the tee.  It does look a little tighter than those published "standards."  He/she might also point out that there is no reason the 16th green couldn't have been moved right, out to the edge of the pond, to reduce that angle and say that a fence between such a tight area is a "must" in addition to the trees.

If a million rounds have been played before an accident like that happens, the expert for the course will cite the "1 in a million" defense, that there are no standards that apply universally, the native and any planted trees, and the golfers (or spectators) general responsibility to be aware of her surroundings in an inherently dangerous sport.  He might also cite the hook side relationship of the tees. And, unless the golfer on the 17th was a lefty, a shank couldn't have hit her, unless the photo is reversed.

The case will come down to who has a better expert witness, and the insurance company's internal debate on who might win.  They need to balance the long term costs of the "roll over and pay" factor against the odds of losing even bigger sums in this case.

My prediction based on what little I know is that this will settle out of court, for a sum far less than the $1 Mil asked for.   My guess it will be for less than $250K, probably less than $100K, and maybe less than $50K.

« Last Edit: January 07, 2008, 11:54:31 AM by Jeff_Brauer »
Jeff Brauer, ASGCA Director of Outreach

Steve_ Shaffer

"Some of us worship in churches, some in synagogues, some on golf courses ... "  Adlai Stevenson
Hyman Roth to Michael Corleone: "We're bigger than US Steel."
Ben Hogan “The most important shot in golf is the next one”

Jeff_Brauer

Re:Design flaw suits
« Reply #7 on: January 07, 2008, 12:21:54 PM »
From their Web Site:

The Palm Beach Golf Course is affectionately known as “The Par 3”. It was designed in 1961 by the master of modern golf course architecture Louis Stibbet “Dick” Wilson.

They have his original rendering for those wanting a look at the Wilson plan style.  I didn't know Dick wasn't his real name!  Or is this another Dick Wilson?
Jeff Brauer, ASGCA Director of Outreach

Jay Flemma

Re:Design flaw suits
« Reply #8 on: January 07, 2008, 12:26:12 PM »
I'm not a big believer in these.  Unless somebody does an amateur hack job and places a guy right in the line of fire after turning a blind corner or something, these are frivolous IMHO.

I blame this crap on the law schools.  Liberal idiot professors teaching you "lots of public policy about redistributing wealth from rich to poor and plaintiff's should always win."  That was the entire review session for our torts class.  I paid 24K a year for that garbage.  "Sue the deep pocket and do what you have to get make him pay you to go away."  What a horrid thing to turn the law into.

Mark Smolens

Re:Design flaw suits
« Reply #9 on: January 07, 2008, 01:13:10 PM »
One of my two cases defending the Oak Brook Municipal Golf Club (owned by the Village, and therefore covered by the risk pool we represent) involved a guy struck by an errant tee shot from a golfer on the 18th tee (he was chipping on the left of # 17).  Unfortunately, the plaintiff's lawyer was a drunken boob, and this case was dismissed before I actually got to do any motion practice, but I agree with Jay's assessment of the merits of this type of litigation -- cutting down on the billing.  I am told that the pool routinely settles claims of drivers struck by sliced tee shots on the first hole (York Road is just over a hedge to the right of the hole, a par-5), but the fact remains that the golfer's homeowner's or renter's insurance policy would in fact cover damages caused by a poorly hit tee shot over the hedge. . .



BCrosby

Re:Design flaw suits
« Reply #10 on: January 07, 2008, 01:21:17 PM »
Mark -

The rule in GA - re: cars getting hit by balls on adjoining roads - is that the driver assumes the risk when driving by a golf course. That surprised me a bit. I don't know if other states come down equally hard on car owners in that situation.  Nonetheless some clubs will pay something for the goodwill.

Bob

Phil_the_Author

Re:Design flaw suits
« Reply #11 on: January 07, 2008, 01:45:22 PM »
I have but three words...

Friv O Lous...

james soper

Re:Design flaw suits
« Reply #12 on: January 07, 2008, 02:48:52 PM »
I'm not a big believer in these.  Unless somebody does an amateur hack job and places a guy right in the line of fire after turning a blind corner or something, these are frivolous IMHO.

I blame this crap on the law schools.  Liberal idiot professors teaching you "lots of public policy about redistributing wealth from rich to poor and plaintiff's should always win."  That was the entire review session for our torts class.  I paid 24K a year for that garbage.  "Sue the deep pocket and do what you have to get make him pay you to go away."  What a horrid thing to turn the law into.

tell that to our client who lost vision in his eye due to the course operator's  negligence. dr. michael hurzdan was our expert. case resolved after hurzdan's depo. hurzdan only testified as to negligence in the course operation. wouldn't testify against the architect even though he felt the hole should have been designed differently(tee box location, hole barriers).

Jay Flemma

Re:Design flaw suits
« Reply #13 on: January 07, 2008, 03:13:32 PM »
well what did the holes in question look like and what was the alleged negligence of the course operator?  Maybe your facts are different, that's all...just like "design flaw" is a completely different tort than "negligence in management."  I'm defending the architect in general here.  Hey, if an archie is negligent enough to turn somebody right in the path of an oncoming ball, maybe he is negligent, but it'd have to be gross negligence on his part...certainly not strict liability.  just because somebody loses an eye, doesn't mean that the ARCHITECT was negligent...and last time I check, res ipsa loquitor was tied to the situation being negligent, (a piano falling out a window, for example..or a human toe in a bag of corn chips), not tied to how severe the injury was.

Just because someone gets hit with a ball, it doesn't always have to follow that someone was negligent..it may mean they just hit a bad shot and the guy didn't get out of the way in time.
« Last Edit: January 07, 2008, 03:20:08 PM by Jay Flemma »

james soper

Re:Design flaw suits
« Reply #14 on: January 07, 2008, 04:24:45 PM »
jay, i took issue with your statement about lawsuits and law schools. our legal system provides recourse for individuals injured as a result of someone's negligence. why should architects be immune from lawsuits if they were in fact negligent and if said negligence caused said injury. it's not some liberal conspiracy, rather its holding someone accountable to an innocent injured individual.

Michael Christensen

Re:Design flaw suits
« Reply #15 on: January 07, 2008, 04:34:07 PM »
Good to know that Georgia law (as I drive by Peachtree quite often!)....I remember in CT that it was opposite....saw a car hit by a drive and the golfer/course were held liable

very sad case in Palm Beach....just being in the wrong place at the wrong time...someone will pay...hopefully she does get her vision back :-\

Jeff_Brauer

Re:Design flaw suits
« Reply #16 on: January 07, 2008, 04:52:12 PM »
It was also surprising to hear how quickly the public comments on the papers web sites went to "liberal" vs. "conservative" attitudes on the subject.  As mentioned, even though it was a conservative President and Congress who pushed for Tort Reform, if someone is injured, they might feel the right to sue, regardless of political affiliation.

I don't like the bad side of the legal system, a la frivolous lawsuits, but its the other side of the same coin. It does perform its function of making all of us more careful in our professional responsibilities. However, I would like a lawsuit to demand correction of a problem, rather than a lump sum to the plaintiff!

One thing to note is that defendants have to pay big legal costs, even if the jury finds in favor of their side.  I have always felt that the plaintiff should perhaps have to foot some legal bills at a minimum, if a jury found a suit frivolous.  There should be some check and balance between the two sides, rather than it be all tilted towards the plaintiff.  

I recall being sued in 1989 and was dumbfounded to hear a judge say (after an obvious plaintiff lie) that it was okay for them to be purposely untruthful in their allegations.  Also, when the first allegations (I had rejected some dead sod on behalf of my owner, BTW) were proven false in depositions, the judge allowed them to keep fishing with new allegations to try to find something to hang me with......

For the record, I ended up settling that one for a measley $6K (my E and O deductible of $10k, less my initial legal fees)  I still don't feel good about it, but wanted to move on.  But, I can see how many people feel the legal system is just plain broken.
Jeff Brauer, ASGCA Director of Outreach

Neil_Crafter

Re:Design flaw suits
« Reply #17 on: January 07, 2008, 05:14:48 PM »
Jeff
Truly it is Louis Sibbett "Dick" Wilson. Not 'Stibbett' though.
This is the real Dick Wilson.
cheers Neil

Jay Flemma

Re:Design flaw suits
« Reply #18 on: January 07, 2008, 05:19:43 PM »
Yes our legal system offers the benefits you say...but the plaintiff's bar sits around dreaming up any way they can to try to make anyone even remotely associated with a tort liable under whatever theory we can get away with.  This drives up litigation costs through the ceiling and our "pay for your own lawyer" (Instead of loser pays), is no deterrant to frivolity.

moreover, every time a guy like me lobbies for tort reform, I get lawyers rolling up on me saying I shouldn't do that because it will negatively affect their bottom line and that's not what being a lawyer is about.  It's supposed to be about justice and fairness.

Every law school in the country is teaching "lots of public policy and plaintiffs always win" and they are also teaching the redistribution of wealth form rich to poor, deep pocket to poor plaintiff as its underpinning...the opposite of "do what's fair" if ever I saw.

It's not "hold someone accountable to an innocent injured individual"...it's hold the RESPONSIBLE person accountable to the innocent injured individual.  Suing the architect for a design flaw..frequently, not always, but frequently...is the birdshot defense or smacks of throw everything against the wall and see what sticks and that is never good for the law itself or citizens at large.

Please take this the right way, I'm not trying to yell at you or embarrass you on any way.  But our system has flaws that need to be addressed.  Loser pays goes a long way to weeding out frivolous suits.  I know that there is a good argument on the other side...that justice may still go to the rich because the rich may be able to afford a better lawyer...but our courts have become courts of misery and tears because - particularly in intellectual property circles - justice goes to the rich because they can outlast.  We need tort reform.


Chuck Brown

Re:Design flaw suits
« Reply #19 on: January 07, 2008, 05:42:50 PM »
Like Mark, I am a lawyer who defends personal injury claims (in my case, largely physican and hospital malpractice claims) and I have done some general liability work of the kind that Mark describes.

These are common claims; plaintiff lawyers may be happy to sue the golfer who hit the errant shot and who perhaps failed to yell fore, if -- IF -- the golfer has personal general liability insurance coverage for that kind of claim.  The basic problem for the plaintiff side is that "assumption of risk" is a standard defense.  The assumption of risk doctrine indicates that we all assume some risks when we go out on a golf course.  Golf happens.  If we, and our fellow players, never hit errant shots, it wouldn't be golf.  Since we hit errant shots ourselves, we should reasonably assume that others will too.  And we might just get clobbered.  If you can't accept that risk, don't play golf.

For claimants who can't otherwise find a deep-pocket defendant, or whose cause of action for golfer-originated negligence is barred, the next step is a claim for negligent design and construction of the course.  And they are very, very common claims.  The cornerstone of those cases is usually the expert-witness opinion testimony of a golf course architect for the plaintiff.

Here in Michigan, there are at least a couple of reported appellate decisions in which Bill Newcombe (who coached the Michigan men's varsity team for a few years, and who designed a handful of mostly unremarkable courses in the Great Lakes area) supplied the testimony for the plaintiff.  My guess is that he's done scores of those cases that settled if he is featured in three or four reported cases.  The pay is usually very handsome for those experts.  Not Nicklaus-Design-fee handsome, but probably $500 per hour handsome.  I don't know who else does it around here.  Mark may have run into Newcombe.

The logic of these cases is debatable.  A site like GCA could find lots to discuss in the detailed merits of some of these cases.  (We could find almost anything to debate about golf course architecture, right?)  Most of these suits, like most personal injury cases that I work on, are substantively garbage.  Meritless.  Mark and I might be able to debate tort reform in another thread, but while there are lots of federal (i.e., FRCP 11) and state court rules (i.e., MCR 2.114) against frivolous pleadings, those rules are almost never enforced.  Michigan has some fairly advanced tort reform that has survived challenges in the state supreme court, as well as a court rule that can shift the burden of trial costs and attorney fees, even without a "frivolous" finding.  But that's probably too much legal minutiae for GCA.  I sure hope so. :D

Mark, when I lived in Chicago I played and practiced regularly at Oak Brook, in order to use their CDGA handicap terminal, before they offered online entry.  And, as you know, it is a fine public facility with excellent practice facilities.  Private club-quality for the most part.  It is the public track that was part of a large land donation by old man Butler and it abuts Butler National GC; they used some of the holes at Oak Brook the year that Butler flooded when D.A. Weibring won the Western Open.  (And, I'll be happy to give you an affidavit to the effect that while it may be possible to hit someone with a golf ball at Oak Brook, there was no negligent design...  ;) ...)
« Last Edit: January 07, 2008, 06:30:18 PM by Chuck Brown »

Jeff_Brauer

Re:Design flaw suits
« Reply #20 on: January 07, 2008, 05:44:32 PM »
Jay,

I didn't take it as you were trying to yell at me. If you have good old fashion sensibilities, there are many things about the legal system that plain stink.

The 'Class Action" suit is particularly onerous, to me.  I refuse to respond to those. Why send in to get a check for $34 dollars when the whole point was lawyers getting billions out of some corporation?  They send out token cash to justify their existence.

Now, I can accept some of those, like the tobacco company suits, even though I think there are flaws there.  But in recent weeks, I have gotten those letters for:

American Airlines "misfigured" how they distribute their Aadvantage Miles (according to who, it was their program?)

A credit card company "improperly" credited exchange rates in 1989 or so perhaps cheating cardmembers out of a few cents per transaction.

Limits on cherry picking juries and "loser pays" would both go a long way to limiting lawsuits, while leaving potentially high award possibilities in place as a deterrent, at least in my feable opinion.  I once suggested to my defese lawyer that juries have three options - for the plaintif, for the defendant, and for the defendant and frivolous. In other words, you can lose your suit and not have to pay if the jury realizes the basis for your suit, but still has the right to slam you with costs in case they feel it has absolutely no merit whatsoever.  Other than potential for some kind of abuse I can't dream up in my mind, I think this would level the field back the other way at least somewhat.

While I understand that the contingency based, and no chance of paying any legal fees puts the poorest among us on more even footing with the richest corporations, both are tools for those who want to milk the system, which more and more are the lawyers themselves.
Jeff Brauer, ASGCA Director of Outreach

Jeff_Brauer

Re:Design flaw suits
« Reply #21 on: January 07, 2008, 05:49:34 PM »
Chuck's post crossed mine, and of course is more authoritative.

However, if there is one trend that will counter frivolous lawsuits, its the lawyers themselves. As noted, they keep trying to expand their markets to more deep pockets. I have seen a few stories where lawyers are now more prone to sue lawyers for damages caused by either bad suits or bad lawyering in general.

While this strikes me as the least ideal way to clean up some lawyers acts, it figures!

And, here in Texas, I understand judges are throwing more and more fines and censures at attorneys for bad conduct. I don't know if that is prevalent in other places, but it seems like it has merit.
Jeff Brauer, ASGCA Director of Outreach

james soper

Re:Design flaw suits
« Reply #22 on: January 07, 2008, 06:04:02 PM »
in florida, we have a statute (57.105) that makes the attorney and  client responsible the other sides attorneys' fees and costs if the court finds the losing party knew or should have known that a claim or defense was not supported by material facts. this has been extremely effective in weeding out frivolous suits because the judges here enforce them.
« Last Edit: January 07, 2008, 06:06:17 PM by james soper »

Tim Pitner

Re:Design flaw suits
« Reply #23 on: January 07, 2008, 06:09:48 PM »

One thing to note is that defendants have to pay big legal costs, even if the jury finds in favor of their side.  I have always felt that the plaintiff should perhaps have to foot some legal bills at a minimum, if a jury found a suit frivolous.  There should be some check and balance between the two sides, rather than it be all tilted towards the plaintiff.  

Jeff,

Plaintiffs too have to pay their lawyers but they often have contingency fee arrangements.  Increasingly, defendant corporations are negotiating with law firms for alternative forms of compensation (e.g., paying less in hourly rates and building in performance incentives).  It's not really a "legal system" issue.  Most if not all states will award a defendant attorney's fees if the plaintiff's suit is found to be frivolous.  The problem is judges rarely rule that suits--even really weak ones--are "frivolous."  

A "loser-pays" rule in all circumstances would be disastrous--it would take a legal system already imbalanced in favor of the wealthy and completely shut the door on individuals trying to access the courts.  Similarly, just because many silly class-action cases are brought doesn't mean that it isn't a needed tool.  Sometimes, only the deterrent of multi-, multi-million dollar adverse judgments will get an industry's attention.  The tobacco industry is a good example.  Again, judges should do more in weeding out the cases that shouldn't go forward.

Jay,

I really don't understand what you're talking about when you reference liberal law professors advocating a public policy that plaintiffs should always win.  As you probably know, what you're referring to is a public policy argument in favor of strict liability (generally, in the products liability field).  The idea is that strict liability (as opposed to a negligence standard) might make sense because, among other reasons, corporations are better able to absorb the legal costs than are individuals.  My torts professor--hardly a liberal (more a Chicago-school law and economics guy)--presented the argument but certainly didn't endorse it as gospel.  
« Last Edit: January 07, 2008, 06:22:59 PM by Tim Pitner »

Jason Connor

Re:Design flaw suits
« Reply #24 on: January 07, 2008, 06:12:58 PM »
Regarding cars, in Pittsburgh a road goes right through the Schenley Park golf course.  3 holes cross the road -- once the 2nd shot on a par 4, twice the tee shot on drivable par 4s.

There is a sign at each end of the course warning the drivers of cars that the risk is theirs.

I don't know if this is PA law or Pgh law so much as specific to that course since the course is city owned.  It may just be the city covering its own ass.

As a kid in MD my friend's dad put a drive on the road and broke some guys headlight.  My friend's dad's insurance paid for the headlight.  

We discovered that in good company there is no such thing as a bad golf course.  - James Dodson

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