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Ted Sturges

Malpractice...
« on: July 12, 2002, 04:58:31 PM »
Should owners be allowed to sue Golf Course Architects for malpractice?

I know of several instances where an architect didn't get a particular facet of a course right and yet, the owner is left to deal with it.  Many golf course architects are paid as well as surgeons, and if a surgeon "goofs" he/she is sued for malpractice.  I'm not aware of an instance in the golf business where an owner has attempted to sue for malpractice.  Has this ever happened?  Should architects be required to carry malpractice insurance?

In one extreme instance I am aware of, a resort course in the Carolinas (a resort course with a # in it's name), is currently closed to apparently "fix" what is wrong with it.  If I am not mistaken, this course was closed within a couple of years of its grand opening to "fix" what was wrong with it at that time.  I believe that all of the work there has been done by the original architect.  So now, they've been brought back in to "re-do the re-do" as it were.  Have their second and third visits to this course been free of charge?  Are firms who do  work like this generally paid to re-do their "mistakes"?  If so, why?  Does anyone else think this is at all unusual?  

Should architects be held responsible for their own mistakes, and if they need "fixing" should they be required to do this at no charge?  Is there a market for malpractice insurance for golf architects?

TS
« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

Will W

Re: Malpractice...
« Reply #1 on: July 12, 2002, 05:03:01 PM »
the idea of malpractice suits and the requisite insurance for archies would spell the end of golf course construction in the u.s.  it would especially mean the little guys are put out of business.
« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

Jeff_McDowell

Re: Malpractice...
« Reply #2 on: July 12, 2002, 06:17:10 PM »
I don't know much about the legal aspects of malpractice lawsuits, so I'll leave that to the lawyers to debate. But I feel architects should be held accountable for their mistakes or oversites.

I sit in a unique position, because I have one foot in the architecture world and one foot in the engineering world. Many of the mistakes made by golf course architects would surely result in a lawsuit if made by an engineer. For example, I'm fixing a slope stabilization problem on a highly ranked (don't get me going on this, because this course is the perfect example of raters not understanding architecture but being swayed by aesthetics) golf course designed by one of America's most prominent architects.

This course is in jeopardy of losing one of their fairways only two years after opening. We have received bids to fix a portion of the problem in excess of $60,000. To fix the entire problem will cost well over $100,000. My best guess at what it would have cost to fix the problem correctly during construction is not more than $10,000.

I think this is a clear example of malpractice.

I see examples like this all the time. I tell these stories to engineers, and they laugh and shake their heads. I tell these stories to people in the golf industry, and they say "what's wrong with that". It's really said, but there is clearly a disconnect between the professional standards of golf course architects and engineers.

I've got so many stories like these it's sad.

I'm sure a lot of architect's won't agree with this, but that's how I see it.
« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

Mike_Sweeney

Re: Malpractice...
« Reply #3 on: July 12, 2002, 06:21:04 PM »
Never will happen. Malpractice insurance is driven by lawyers and lawsuits. Malpractice for doctors and lawyers happens because one person or entity is injured. In the case of a golf course any attorney would be able to find 5+ people who like the golf course that the owner feels is incorrect or does not meet up to xyz standards. There is too much art envolved which is too subjective for the lawyers (I am not one) to win cases. If the lawyers can't make money on it, there is no need for malpractice insurance.
« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

Edwin R. Rognvaldsson

Re: Malpractice...
« Reply #4 on: July 12, 2002, 09:41:50 PM »
The European Institute of Golf Course Architects, EIGCA, now requires each member of any status to have what they call a Professional Indemnity Insurance, which I believe would be an equivalent to mal-practice insurance. I don't know what the status is in the ASGCA.
« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

Mike_Cirba

Re: Malpractice...
« Reply #5 on: July 12, 2002, 11:46:52 PM »
I heard of a public course in Maryland where the owner sued the architect, citing incompetence.

Evidently, the course that opened was hated by most golfers because of the dome-like greens which shed balls in every direction (and we call Ross a genius! ;) ), and a number of holes that players had a tough time negotiating in any reasonable number due to "unfairness".

I'm not sure how the case turned out, but I do know for sure that legal action was initiated.  
« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

mike_beene

  • Karma: +0/-0
Re: Malpractice...
« Reply #6 on: July 13, 2002, 03:20:47 AM »
If I were an owner and unplayable course built(perhaps rockslides that a prudent architect should have realized would happen)if I could prove it I would think there would be damages.
« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

moggster

Re: Malpractice...
« Reply #7 on: July 13, 2002, 04:22:18 AM »
In Jeff McD's case, sounds like the architect should have consulted with a civil engineer, which would be the typical practice on most jobs involving substantial earthworks (even no-substantial earthworks).

Architects getting paid as much as surgeons - gimme a break, there may be 4 or 5 in the entire world who get paid that muc, most archies I know probably make about as much as a UAW member (or a little more).

As far as the architect being responsible for a problem, there are many people involved in a golf course design, and it would be pretty hard to pin the problem on the architect, unless it involved the routing (ie unsafe houses or safety issues). What other "problems" we talking about here - a green with too much slope, a bunker which doesnt drain too well, sand washing out, grass not growing - theres shapers, construction companies, supers, agronomists and owners all involved in a lot of these decisions. Lets find out what the specific problem is in this case.

Most architects have prof lioability insurance unless they are crazy.

But hey, this is the US where the 15th amendment is the god given right to sue.
« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

Dave_Miller

  • Karma: +0/-0
Re: Malpractice...
« Reply #8 on: July 13, 2002, 10:34:48 AM »
Sue the architect ?? Give me a break.  
How about suing the idiot owner or committee members who accepted his ideas.  
Even in the potential rockslide example is it the architect or the contractor who is at fault.  Or if there was a civil engineer consulted is it the engineer.  
Don't most professionals carry some type of errors and omissions insurance coverage.  Not sure this would apply here.

Fairways and Greens
Dave
« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

Bill Wright

Re: Malpractice...
« Reply #9 on: July 13, 2002, 12:29:16 PM »
Golf Archie Malpractice?

What fact situation would be most appropriate for a test case, to see if the Courts could find liability on the part of an architect?

If the statute of limitations hasn't run yet, perhaps...
Rancho San Carlos v. Fazio Golf Course Designers (course: The Preserve, Carmel, California)

Of course, the plaintiff would come into Court with "unclean hands" (which is, in fact, an affirmative defense in law) due to their negligence in hiring the defendant to mail it in on such a beautiful piece of property.

As they say, Caveat Emptor   ;)

« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

Physician

Re: Malpractice...
« Reply #10 on: July 13, 2002, 01:03:55 PM »
You guys don't have a clue about malpractice.  You should be careful how you use that word.

Community standards are brought into play to determine "malpractice".  Community standards require another practitioner of the art to support the case.

Try another phrase, like breach of contract, incompetance, but not malpractice.

guess who.
« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

Tom Doak

Re: Malpractice...
« Reply #11 on: July 13, 2002, 01:19:16 PM »
What does a good surgeon make?  I'll bet I haven't made that much in a year yet, although one of these years I could crack Brett's fivesome.

Yes, there is such a thing as Professional Liability Insurance, and anyone who's designed more than a couple of courses should have it in case someone crashes a golf cart or gets hit on the head from another fairway.

There have also been a few lawsuits in recent years over ill-advised design or construction problems which resulted in landslides ... I don't know if there have been any judgments on these.  "Unplayable," though, is clearly in the eye of the beholder.

Unbelievably, I have been to a couple of clubs which rebuilt their greens, had them fail, and paid the same architect to do the job over again!  And one of them failed the second time!
« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

surgeon

Re: Malpractice...
« Reply #12 on: July 13, 2002, 03:25:56 PM »

Quote
What does a good surgeon make?  

Depends on who and where.  There is a different need than with a good architect.

Per day, hired fill-ins make $400-$1000 a day for example.  With everyone trying to sue your ass.

« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

Jeff_Brauer

  • Karma: +0/-0
Re: Malpractice...
« Reply #13 on: July 13, 2002, 04:00:03 PM »
I recall reading in Time last year that the average doctor made $128,000 per year, which is also about the amount that puts one in the top 5% of income earners in the US.

Most golf architects do carry "errors and omissions" insurance, which covers the same on any plans and specs that lead to damages on the part of the owner.  I don't know what architects who don't do plans are covered for exactly! :) ???

Architects do get sued from time to time for safety, drainage and cart path issues, where persons or property are damaged.  I see the trend of golf architects reducing their scope of services - farming out or avoiding altogether cart path design, environmental design, irrigation and pump stations, and even drainage, although most of us will do golf course drainage, but stay away from anything that could in any way conceivably affect the drainage for houses or roads.  

Heck, architects are even reluctant to spec out greens mix, as that is the biggest area of lawsuits.  Any time a new green dies, it could be poor mix, weather, a "terrorist attack" - ie vandals - or superintendent error.  A USGA rep. once told me that the greens section kept track of dying greens informally across the country.  Before the USGA spec green, they failed at about 1% of a regions courses per year, and after USGA spec greens became common - about 1% a year.  So the mix part may not be that big a factor, although thats what lawsuits usually focus on.

The case Jeff McDowell mentions is interesting.  At the Quarry at Giant's Ridge, we had a slope stability situation, and I was tempted to leave it alone, or engineer a solution myself, but we recommended the Owner retain an engineer for the design.  We spent about $160,000 to "remediate" a 1.8-1 slope back to a 2:1 slope.  Not much improvement, and the engineers contract stated that they didn't guarantee it anyway, they estimated it reduced the probability of slope failure a substantial percentage, and it did meet some state spec for mineland stability.....So, I don't know if the Owner Jeff mentioned did much more than take a calculated chance that doing nothing would work out, and lost the gamble.

Certainly the engineering firm he works for is only doing the best they can, but how can they be responsible for soil?  They can only provide a reasonable level of care in design, but even soil borings every 100 feet could miss a vein of unstable soil that may still collapse.

Should architects be sued because someone doesn't like the course?  Most contracts specifically call for the architect to run preliminary designs and budgets by the Owner FOR HIS APPROVAL AND ACCEPTANCE.  Naturally, there are changes and evolution, but technically, the architect is only presenting options and ideas for the owner's approval.

Naturally, we all like it when the owner gives us carte blanche to implement our ideas, but rarely do they leave and come back at the end with absolutely no idea what the product will be like - "Hey, surprise me" is not something I've had a client say.  Hopefully, the client has researched things enough to know they like your basic style.  If they don't, well, shame on them.

The ideas of "community standards" being applied to design is interesting.  On the surface, we all love golf because every course is different.  So, what if I gave an Owner a different course than what was around, and he sued me because it wasn't like the others.  What if it was too difficult, or easy?  Who would decide and how could anyone determine that the owner was damaged by the aesthetics or playability of the design? Certainly, such standards would limit creativity, and we may have never seen the likes of Pete Dye.
« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »
Jeff Brauer, ASGCA Director of Outreach

BCrosby

  • Karma: +0/-0
Re: Malpractice...
« Reply #14 on: July 14, 2002, 02:16:18 PM »
Malpractice does not usually apply to archtitects.

A little background.

The law recognizes certain minimum standards that "professionals" must satisfy when performing services for their clients/patients. In most states only lawyers, doctors and related jobs are required to perform up to these minimum standards. If you don't, you may be sued for malpractice, a type of tort. It is essentially a type of negligence claim.

I'm no legal historian, but one of the reasons the law handles lawyers and doctors this way is because normally they don't enter into contracts with their clients/patients.

Archies do enter into contracts and thus claims arising in connection with their work normally sound in contract law, not the law of torts. If a fairway washes into the ocean one stormy night, and if the statute of limitations applicable to contract claims has not run, the owner probably has a breach of contract claim if the underlying contract provides the appropriate representations and covensnts.  I.e. it says that I'll build you a course that, among other things, won't quickly wash away into the briney deep.

That's not to say you couldn't bring a malpractice claim for architectural negligence. You could. But those kinds of malpractice claims are not a well developed branch of tort law in most states. And most courts are reluctant to create new law if they can avoid it.

More importantly, recoveries under breach of contract theories are usually a sufficient remedy for the agrieved party. Again, if the underlying contract is well drafted.

Bob
« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

Jeff_McDowell

Re: Malpractice...
« Reply #15 on: July 15, 2002, 07:03:41 PM »
A number of people hit on one reason there aren't more lawsuits. There's so much finger pointing going on between owner, architect, engineer and contractor that it's impossible to lay blame on a single entity.

In the example I used, that is exactley what is stopping the owner from even considering legal action. The owner hired an engineer to do the drainage, but then the contractor changed the pipe routing in the field. Obviously, it didn't work.

I certainly don't know who should be responsible, but shouldn't the architect take an interest in the project? What ever happened to caring enough about a project to eversee the details. If an owner hires you to design a golf course, shouldn't your number one priority be to ensure the owner is getting a quality product? In my opinion there are too many people looking to feed their egos and pocketbooks and not enough people looking out for their clients.

And in the situation Tom Doak brought up about the green failing twice, what are some owners thinking.

That's enough whining for now.
« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

moggster

Re: Malpractice...
« Reply #16 on: July 16, 2002, 07:40:28 AM »
You want the architect to be responsible in a case like this and in all other construction related issues. ???

For that to happen, the architect or his represenative better be on site all-day every-day and in every corner of the site. And if any pipe was buried without him around - dig it up so I can see it.

Somehow typical design fee's don't really cover this sort of thing - and it would be hard to get an owner to see the benefit of spending all the extra $$ to get it to happen. I would'nt have a problem being RESPONSIBLE for everything on the site, but fees would need to rise significantly, to cover the extra staffing and insurance costs.

« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

Ted Sturges

Re: Malpractice...
« Reply #17 on: July 16, 2002, 11:46:12 AM »
I agree with the points Moggster makes with regard to fees needing to rise to have most architects be responsible for everything.  However, some of these architects are being paid hundreds of thousands of dollars (some even get 7 figure fees).  It is within this group that I have heard of instances where (like Tom Doak referred to in an above post) they make a mistake, then get called back to fix it (and bill for it again).  Why would anyone pay someone to fix a mistake?  Is there a reason I'm not aware of that suggests that an architect should be paid for something like this?  In my original post, I made reference to the "re-do of the re-do" currently going on at Pinehurst #7.  I would assume that the Rees firm is being paid for this, their 3rd attempt to get that place right.  Does anyone know what is going on there?

TS
« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

Hart Huffines

Re: Malpractice...
« Reply #18 on: July 16, 2002, 01:59:28 PM »
Ted,

Knowing Pinehurst they are probably only reworking the
greens on #7 in changing them to G2.

What I'd like to know is if they plan to add architects
like Mr. Doak, Pete Dye, or Coore and Crenshaw to the
resume.  Wish they had already on #9 and #10.  How
much more Jones, Nicklaus, and Fazio can we take?

Lastly, I assume the silence from Ran means you
took him to the woodshed repeatedly.
« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

Jeff_McDowell

Re: Malpractice...
« Reply #19 on: July 16, 2002, 03:00:31 PM »
Moggster,

Your point is well taken. You can't be everywhere all the time, and designing and building a course is not a manufacturing process with prototypes. There are bound to be post-construction fixes, but that's not what I'm talking about.

My earlier post said "take an interest" in the project. This means looking out for the owner, letting them know the risks of certain construction techniques, and making sure the owner is left with a product that can be maintained. It does not mean being omniscient.
« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

Ted Sturges

Re: Malpractice...
« Reply #20 on: July 16, 2002, 04:34:30 PM »
Hart,

RE:  taking Golf's Most Loved Figure to the woodshed

It was a tough job, but somebody had to do it!

Enjoyed my round with you!  Hope to share more golf with you in the future.

TS
« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

jim__janosik

Re: Malpractice...
« Reply #21 on: July 17, 2002, 12:56:08 AM »
Malpractice is to strong of term but they should be held accountabler for overstepping lines of expertise. Oncologists don't perform brain surgery, orthopedic surgeons don't tranplant hearts. The problems I have seen over 23 years is when architects think they are water quality experts, recommend turf species, design irrigation(the ultimate sin)
and other stuff. A civil engineer will not do structural calcs,
thats for civil enginners. As my partner says, "leave your ego at trhe door."

OF course I am being hypocritical because I have made a good living cleaning up after people.

On another note, HIRE A FREAKIN PROJECT MANAGER, give him the plans, and have the design proffesionals show up once a month. Then and only then is the owner protected.

« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

moggster

Re: Malpractice...
« Reply #22 on: July 17, 2002, 11:16:58 PM »
I am sure everyone was happy (designer/owner) with the greens at Sawgrass first time around. Pete got to change tham either cause the owner wanted them changed later on (its his money) or Pete did (and all respect him enough to grant him his wishes).

I don't believe they were changed for any fundemental design or construction flaw - however others more knowledgable about the situation would be able to give the fulkl story.

Ps its hard to sue when the only contract you have with the designer is the shake of a hand!!
« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »

Dennis_Harwood

Wrong term
« Reply #23 on: July 18, 2002, 03:26:59 AM »
The term "malpractice" is not applicable to course architects--That is a term limited to specific professions(the failure of a practitioner of medicine/law/perhaps accounting) to meet the  standard of that profession--

As to course architects/designers there have been(and will be) a number of legal actions filed and successfully litigated under the concept of "breach of contract".

Under a properly drawn contract an architiect/course designer can be held to a standard that he will spend specific hours on the project, that greens shall be constructed in accordance with USGA specs(for example), that the course and bunkers will drain, that grass will grow if properly maintained, that the finished product can be maintained for $X(subject to inllation, etc).  Many recoveries have been obtained for breaches of such contractual conditions--

What is not recoverable is that the finished product will be accepted as a masterpiece, or that the golfing public will like it--

You can hire a renowned artist and hold him to a contract to complete a painting--What you can not hold him to(legally) is that the art critics will love it or that it will be known as a "masterpiece".  Afterall "art is in the eye of the beholder".
« Last Edit: December 31, 1969, 07:00:00 PM by 1056376800 »