[Patrick_Mucci]

Dual fairways or shared fairways seem to maximize the quest for width.  While St Andrews would seem to be an ideal model, the legal climate in the U.S. may preclude their introduction and use.

Are there any courses built in the last 20 years in the U.S. with shared fairways  ?

If so, do the holes play in the same or opposite direction.

If regulatory and/or permiting agencies approved a routing plan containing dual fairways would that in any way create a "hold harmless" legal firewall ?

At what width would a dual fairway be considered safe ?

[SPDB]

Pat - When you say shared fairways, do you mean that each hole plays down the same fairway, or that there is a larger connected fairway with two clear routes of play for each hole?

I've seen the latter at Long Island Nat'l on holes 2-3, they both share a bathtub basin depression and crossfire is indeed the possibility.

The liability concerns are plain enough to not discuss any further. A regulatory or permitting agency doesn't, to my knowledge, approve routings or individual hole constructions with respect to safety. In other matters, e.g. environmental impacts, etc. routing may become more germane.

Even if it did, I can't imagine any court insulating a golf course operator from liability on any "implied hold harmless" theory. If this type of defense were allowed, the agency who holds the golf course harmless by its approval would then, arguably, be the liable party. States and municipality are typically immune from this type of liability.

I can't imagine that theory under any formulation would ever be effective in insulating a golf course operator from liability

That's just my opinion.

[Tommy_Naccarato]

I've seen the latter at Long Island Nat'l on holes 2-3, they both share a bathtub basin depression and crossfire is indeed the possibility.

Sean, Sounds like a wonderfully natural feature of the place.  

Thankfully I made a U-turn in their parking lot when I saw what the course looked like. (Palm Springs rears its ugly head in the Home of American Golf--Long Island!)

Pat, Rustic Canyon #2 shares part of a fairway with #5, and its one of the more defining features when your driving into the course for the first time. Some call it dangerous, personally, I don't.

Several MacKenzie courses had shared fairways at one time, and its ashame that they are somewhat stiffled by legalities that are sometimes--most times frivilous.  # 1 & 2, 6 & 7, 10 & 17, and 11 & 12 at Pasatiempo come to mind, and how it has ultimately affected the original design.

The liability concerns are plain enough to not discuss any further. A regulatory or permitting agency doesn't, to my knowledge, approve routings or individual hole constructions with respect to safety. In other matters, e.g. environmental impacts, etc. routing may become more germane.

Even if it did, I can't imagine any court insulating a golf course operator from liability on any "implied hold harmless" theory. If this type of defense were allowed, the agency who holds the golf course harmless by its approval would then, arguably, be the liable party. States and municipality are typically immune from this type of liability.

Maybe someone will provide an instance, and I asked many caddies at the Old Course back in 1996, but none of them ever had a memory or a recollection of someone ever being hit with a golf ball. Many close, but never a direct hit. I'm not only thankful of this because the thought of Donald Steel having to seperate the holes would turn my stomach.

But this is a point I feel the judicial system of the United States fails dramatically hen it comes to golf and liability. Shouldn't a person accept responsibility when on or in the vincinity of a golf course as a place where danger does in fact exist? And shouldn't the owner or proprieters be not held responsible for damage or injuries as such?  I'm not talking about a foot getting caught between a cart and a curb or a runaway cart that had faulty brakes. I'm talking about the field of play, that in fact that the purpose of business is golf balls flying in the air--should not be held accountable.

Sean, I expect once you pass the bar to handle this topic with the highest court in the land!

[SPDB]

Tommy - I agree with you that assumption of risk is a hollow doctrine, but what difference is there btw the construction of golf courses and the construction of golf carts, for which you think liability would be appropriate if defectively manufactured?

I think that's your answer right there.

[DMoriarty]

Patrick,

Tommy mentioned the 2nd and 5th at Rustic, but didnt mention that the 6th tee is also connected to both these fairways by shortgrass.  Another interesting aspect of this section of the course-- 5 bunkers come into play on both holes.  

If Gib and a few others had their way, the area between the second fairway and the fifth green would be a nice natural forest.  

In addition to the 2nd and 5th holes at Rustic, the 1st and 18th holes at rustic also share a small portion of their fairway, in opposite directions. (For certain pin placements, some prefer to play their second on 18 almost at the 1st tee.)  
_____________  

SPBD,  I am sure that Tommy would respond that their are inherent risks in golf of which the golfer is, or should be, fully aware.  Thus the golfer is in a position to knowingly assume fairly specific risks.   In contrast,  there are not supposed to be inherent risks in golf cart manufacturing, nor are golfers aware of any such risks.  Thus they are in no position to be deemed to have assumed them.
___________

Tommy, I dont know that it is the judicial system that has let us down.  If I were one to point fingers, it would be at the USGA, the state associations, and at those who control the courses.   Many states have passed assumption of the risk laws to insulate other industries from certain types of liability, and to essentially take the courts out of it.  The best example is ski industry, which is pretty much insulates the areas from liability except when they really screw up (like leaving people on a lift overnight, like Big Sky did a few yrs ago.)  Another less obvious example is the pending legislation insulating the fast food industry from lawsuits filed by the overweight.

Perhaps the USGA and local associations ought to try a little lobbying before we have to bubble each hole to protect the world from all bad shots.  

[SPDB]

DMoriarty:

I am unfamiliar with the protections enjoyed by the ski industry, but how much insulation does it really provide them with respect to potentially dangerous conditions they create with the construction of ski slopes - i.e. unreasonably dangerous trail mergings where a skier is hidden from oncoming skiers?

Perhaps drawing a comparison betw defective golf cart manufacture and whatever duty the golf course owner owes to its invitees was a poor one. However, I would imagine that if you constructed a golf course knowing that opposite players would repeatedly encounter balls flying in their direction, the golf course operator's liability to me would seem a fairly relatively straightforward proof.

But that's what insurance is for, no?

[peter_p]

The South Course (Fought) at the Reserve Vineyards in 1997 has the 3rd and 6th holes share a fairway separated by a series of about five bunkers. They are both par fives and go in opposite directions. The drive rollout areas are about even with each other. The 3rd has a lateral hazard on the left, making the bunkers and the 6th man inviting target.

[DMoriarty]

I am unfamiliar with the protections enjoyed by the ski industry, but how much insulation does it really provide them with respect to potentially dangerous conditions they create with the construction of ski slopes - i.e. unreasonably dangerous trail mergings where a skier is hidden from oncoming skiers?

It provides quite a lot of insulation for the ski industry.  What exactly is an unreasonably dangerous ski trail, by the way?   I have seen skiers hurl themselves off sheer cliffs in the middle of marked trails.  Is there much more dangerous than that?  

To see what a good job the Ski Area lobbies did with liability last decade, turn on ESPN and check out the X-games and other such events.   Metal hand rails, giant jumps, half pipes, every type of "feature" imaginable.    You might think these things are for world class events only, but at some areas any stoned teenager who can rent a snowboard can access these things.  The boarders drop like flies-- many resorts refer to their snowboard terrain parks as Triage Parks.

Those familiar with the fences, padding, speed patrols, over-signage, and the bans of fast skiing prevalent in the early to mid eighties would be shocked.  

Do you really want to tell me that golfing on a very wide double fairway with everything in view is more "unreasonably dangerous" than a knarly misty-flip in the superpipe.  

[Tom_Doak]

Pat:

In my original design for the Heathland Course at The Legends, the 15th and 16th holes were going to share an alternate fairway ... to the left between the two holes.  The alternate route would have eliminated forced carries on both tee shots but presented more difficult second shots, so I didn't think it would get used very much.

However, the client Mr. Young thought it was too dangerous, so he moved the centerline of the 16th hole over by 100 feet, dragging the alternate fairway with it and putting it too far left for anyone to consider using it on 15.

I have, however, seen a couple of crossover holes built in the US over the last twenty years.  Bob Cupp and Jerry Pate did one at Indianwood (New) in Michigan.  Greg Norman wanted to do one at his course at The National GC [Australia], but the club's lawyers wouldn't let him ... so he did about five of them at Doonbeg instead.

[TEPaul]

Last time I looked two par 4s going in opposite directions at Fieldstone (Hurzdan & Fry) shared some fairway on the right of both holes. As I recall there's the ruins of a small building within that shared fairway area.

[SPDB]

From a legal perspective, I'd be more interested in how golf courses could preserve their architectural integrity through property law concepts, e.g. covenants on/running with the land. Anybody know anything about this?

[A_Clay_Man]

Patrick, Could you explain, from a legal perspective, the propects of contracting your customers (members)?

Some form of a document that efficiently states there is a reasonable assumption of risk, and that each golfer is responsible for their actions.  A release form, if you will.

[Brad Klein]

I do not think there is a doctrine in the courts (civil law, mainly, with lawsuits and jury cases) that upholds the concepts of either "assumed risk" or "prior risk." That might be an argument, but I don't believe it has standing in the law books. Perhaps some industries have been granted waivers (gun lobby, skiing) but that's because of aggressive politicking efforts. The golf industry enjoys no such latitude, and even in cases where a golf couerse pre-existed a newer housing development, clubs can be held liable for safety issues from golf balls flying off course.

As for on-course safety, there are no documented rules for this, as no professional body wants to be the party to get sued when someone does get hit. Certainly, an agency apporoving a project is not making a judgment on safety - that's the responsiblity of the architect and owner. For this, a standard approach is for the centerlines of adjoining fairways to be separated by at least 250 feet. Anything less can be dangerous. Another way to calculate it is a 15-degree "cone of safety" delineated from the the centerline of a hole. Anything within either side of the 15-degree projection (calculated from the center, so effectively, as I understand it, it's 30-degrees wide) is considered at risk.

Here's one way to think about. 25,000,000 Americans people play golf. That means 250,000,000 Americans' don't. In a jury pool, you are therefore going to get 10-11 members of your twelve who do not play golf. How sympathetic do you think they'll be to the claims of a golf course that golfers should assume the risk? Lawyers want to avoid such jury trials, because most of the time the defendent loses. So that has an effect on lawyers, insurance companies and clubs.

If Scotland and Ireland (Lahinch!) have more crossover holes, that's because of a very different legal culture, where suing for damages when it rains is frowned upon.

[A_Clay_Man]

Dr., Off-site injury and damage, is perhaps a seperate category and may have no legal precedents, to protect, but contract law does.

Why not make those 25m golfers, each responsible for their own actions, through contract? You sign, or don't play.  

As Tommy stated, the problem is in the system, maybe not judicial, but certainly legal. When someone does inflict injury or damage, how is that all of sudden someone else's fault? This is a fundamental issue that smacks of a total conflict of interest, when lawyers make, or don't make, laws, that help perpetuate, lawyering.

 

[BCrosby]

Legal limits on gca are often exaggerated.

The doctrine of assumption of risk is quite alive and well in the law. It is is in operation any time you play golf, play in or attend a baseball game, hockey game, etc., or hunt, fish, etc.

In the few reported cases on architect liability, the assumption of risk issue is the key issue. The archie almost always has won on those grounds. (Some of the opinons are quite witty when they talk about whether golfers should anticipate bad shots from hackers.)

Where archies or operators have lost is where the danger could not be reasonably anticipated by a normal golfer. Almost all the cases turn on that single issue.

Bob

[Brad Klein]

It would be interesting to survey architects to see how much they spend annually on liability coverage, and how often they have claims settled against them. I have seen many of them concerned about design issues during a rouitng and shy away from holes because of safety. There might be a doctrine of assumed risk, but that is always a debatable boundary line and there's where legal issues are crucial.

Moreover, the nature of the game is changing - courses with more play; greater variety of golfers; equipment changes mean the ball flies faster and further - all of that is used by lawyers claiming that the "assumptions" of risk are dynamic, not static.

[A_Clay_Man]

Is that to imply culpability for equiptment manufacturers?

[DMoriarty]

I am not up on the latest Torts law, but unless there has been a torts revolution of which I am not aware, I completely agree with BCrosby on this one.  

Assumption of the risk has always been one of the core defenses in torts law, and still is.   Brad, aren't you a baseball fan?   If a fan gets hit with a roped foul ball, there is no liability as a matter of law, if the person hit was aware of the inherent dangers of baseball (sometimes an objective reasonableness standard but usually a subjective standard.)   The same generally applies between golfers on a golf course with certain limitations.

With regard to golf courses,  they do owe a duty to avoid building unreasonably dangerous courses (at least where those dangers are not an important part of the game), but secondary assumption of the risk enters into the equation here as well.   Players can still be found to have assumed the risk of the danger by knowingly exposing themselves to it.  

Brad, you say that the golf industry "enjoys no such latitude" as other recreational industries like skiing.  This is quite true, but from my perspective no one is to blame but the golf industry.  Surely there is enough money and influence in the industry to lobby some state legislatures to give the courses and designers a little protection.  

By the way I think you may also be mistaken regarding balls flying off the course, at least in some jurisdictions.   Regardless, this is quite a different issue golfers getting hit on the course.

Adam, I dont know the specifics of explicit waivers signed by golfers.   But I will say that such waivers are often enfoceable in other industries, so long as they dont insulate anyone from gross negligence, etc.    Waivers are often referred to as express assumption of the risk.
. . . . .

Once again, I cant help but think that the industry has really dropped the ball here.  A "Golfer Responsibility Code" and a little lobbying would likely go a long ways toward insulating the courses and designers from liability.  
 
But I guess it is just easier to go on moaning about the shortcomings of the judicial system.  

_______________

SPBD,  covenants which run with the land?   I have no idea what you are talking about, unless it is preventing future owners from making changes.  Would be tough to sell your course, I 'd think.  

[TEPaul]

A few years ago when we started our restoration project there were a couple of basic liability concerns with our course--the first hole tee shot (road right) and the practice range.

I've know the NCA (National Club Association) in Washington DC for years and they track almost all club legal situations including on-course liability cases so I used their data and statistics.

Basically the law looks at a golf course as a situation that can never be totally safe and assumption of risk is as Bob Crosby says. However, in recent years the assumption of risk has begun to move slightly from the golfer to the club itself---not an optimistic swing.  

With existing clubs and noted situations of danger such as Merion's 2nd or 14th and 15th hole the law basically looks at those situations as inherently dangerous and basically only expects the club to do the best they can---and definitely does not expect them to go to extremes to create a situation of far less danger than its always been.

[Mike_Young]

Don't know much about the law, I let Bob Crosby handle that but I would say that I think most design, legal issues I have seen are with cartpaths.  And I think most architects now defer to an engineer to stamp these which limits liability fot the architect.  But I have seen lawsuits over cart path where owner, cart company, architect are all sued.  But the big money is with the cart manufacturer

[Tommy_Naccarato]

We have three good legal minds going here, as well as a Doctor of Political Science. Something must be able to get done with that, no?

Pardon my lack of proper language, but whether its the legal system or judicial system or whatever, the fact that a person buys a home on a golf course, steps on a golf course to play or even watch, or utilizes a moving vehicle designed to transport him from shot to shot throughout the golf course is reason enough through the use of COMMON SENSE that Shit Happens, you are responsible for your own well being.* (*Sorry for the cuss)

If a person buys a house on a freeway, and a car has a blow-out or other unforseen Act of God, (why do people always want to blame it on God?) comes careening off of that freeway into the back yard and hurting people in the process, is the state responsible for the home builder building it there; the person who wanted to live on a freeway; as well as the people involved with constructing the freeway?  Common Sense would say, "I don't want to live on a freeway because its loud and it dangerous but the person who does accepts that its not the best place to live and be safe. You don't see people wanting to go out there for a walk do you? Why?

And yes, the person responsible for careening off of the freeway who didn't forsee this, wasn't drinking or acting irresponsibly is still held accountable but yet, is still just as fiscally responisble as the person that was doing just the opposite. And while a Golf Course is a much more logistic place to live then next to a freeway, you would think that there maybe some common sense, the same common sense that told you that you didn't want to live next to the freeway, correct?

Lastly, why does it have to always be a politcal fight or lobby for the legal system to use common sense?

I say this because I'm not a legal mind, in fact most of the time I have no mind at all and if any of you find this offensive--bare me no mind at all!

[Patrick_Mucci]

Tom Doak,

Aren't # 3 fairway and # 12 fairway at Pacific Dunes contiguous ?

# 7 and # 8 ?

# 10 and # 18 at Bandon Dunes ??

[DMoriarty]

Tommy, I learned a long time ago that its best to leave hypothetical complex liability scenarios to law school professors and their first year students' final exams.  Suffice it to say that, for many reasons, most of your assumptions about who would be responsible in your freeway disaster are  likely wrong.   Moving on . . .

Suggesting that common sense should reign is good advice rarely followed.   And expecting others to use common sense defies common sense.  

Likewise, it is very dangerous to expect judges and juries to decide what is common sense and what isnt.  Legislation more specifically defining liability simply takes the question away from judges and juries.  Further, it gives owners and designers more specific guidance on what they can do and what they cannot.  

But I guess it is just too much to ask of the golf industry.  They must have more important things to worry about other than our courses.  . . .

As I recall, whether or not golf courses are liable for balls flying off their property is jurisdictional.  That is, it varies from state to state.  

[SPDB]

Assumption of risk is like any average octogenarian - old, and far fewer teeth than 40 years ago. As a standard defense, it has been mostly abolished as subsumed into comparative fault, except where retained (mostly by favorable legislation) in inherently dangerous activities - as in skiing (i guess).

TEPaul - Are you saying that the law would protect Merion against a death of a motorist along Ardmore Ave precipitated by a wayward tee ball on #2? I find it nearly impossible to imagine that Merion would be immune from liability. I imagine they have been pretty lucky to this point. Whatever risks are inherent on the golf course, and whatever notice adjoining landowners have of the risk of damage from errant shots, surely doesn't extend to the driver along Ardmore Ave. He hasn't assumed any of those same risks.

[TEPaul]

SPDB:

I didn't say the law protects Merion from liability from a death on Ardmore Ave if a motorist was killed by a golf ball. That's obviously why Merion has a very good insurance policy. Those Merion holes have been that way for over 90 years and what I'm saying is it looks like the law would only expect Merion to do the best they can on them which the case studies I've seen elsewhere seem to indicate the law recognizes can never be completely safe. The point is the law is not likely to require Merion to redesign holes #2 #14 and #15 in an attempt to completely do away with the danger on Ardmore Ave and Club House Rd.

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