[Tom_Doak]

Tom:

If Merion was in England or Australia it would have to be changed.  It wouldn't take a death or even a serious injury; all it would take is a few complaints by motorists.  The case would take about ten minutes, no argument about it, that's why their legal systems are less costly.  But they're not less stringent on liability issues.

New Zealand and Ireland are a whole different ballgame.  In NZ wrongful death is capped at something like $250,000 so the insurance companies aren't going to go broke over an accident; that's why NZ is the capital of bungee jumping and other thrill sports.  Julian Robertson apparently thought this was adequate protection for an accident at Cape Kidnappers, but I suggested he might think twice about that, and his lawyer was evidently on my side!

Pat M:  Yes, the third and twelfth at Pacific Dunes have a shared fairway, I'd forgotten about that.  It's pretty safe because the centerlines are pretty far apart and the only people who go way right on 12 are those who have hit a bad block.  I've done shared fairways a couple of other times as well, but rarely is it the case that someone will be aiming for that fairway on both holes.

Our insurance coverage for professional liability is pretty costly, considering we've never had an incident wind up in court (knock on wood!).  80% of those cases involve golf cart accidents and not the proximity of golf holes, but they still sometimes drag the golf course architect into court, so the insurance companies take their money out of fear.  Even if I wasn't found liable it would cost a lot to defend myself beyond a reasonable doubt.

[A_Clay_Man]

On the waiver issue, I think the end result will help golfers act responsibly, and in a psychological way, will set the proper mindset. Heck, you can throw-in a faster pace of play and mandatory ballmark repair. Everyone, but the sleaziest of sleaze, will comply. A national database of those that don't, precluding the  KNOWN sleazbag from teeing it up anywhere. A true black list and another step in the direction of the "New Cruelty".

When we discussed the ASCGA, I asked if they had done any lobbying, and the response was more about how fun and friendly the meetings are. Well, boys, clearly you've dropped the ball. And it was dropped way before you'all were members, no doubt.

Certainly neglegence should have to pay. But, how is Merion being neglegent, if some lucky somebitch gets to tee it up there and ends up hitting a shot, which they neither wanted or expected, yet ends up lethal..?

At PG. Some new homeowner (not a new house) complained that her baby's window was facing the 7th hole so she wanted protection. They decided to erect a massive fence at astronomical cost. Seemed easier (and cheaper) to pay for  bulletproof glass.

On a recent trip to Fla. I was matched with a lawyer who is representing some of the names we talk about, here. It would appear some member got drunk at the club one night and was driving his cart home, in the dark, at a high rate of speed. Well, the poor sot gets severley injured and wants to blame the gc architect? Even a politician sould be able see the inequity in that.

[SPDB]

Tom - Merion wouldn't have to redesign anything, I am sure a court would find that putting a net up would be a reasonable customary practice. It would be unsightly and unthinkable at a place so pristine as Merion. Therefore, I imagine these aesthetic concerns are reflected in higher premiums. No?

[DMoriarty]

SPBD,

I am not sure the current stage and status of your burgeoning legal career, but where I've practiced law attorneys tend to take a look at the law of the specific jurisdiction in question before making specific pronouncements about what is and isnt.    Now I dont know much about Pennsylvania law and for some reason I have a feeling you dont either.   If I were a practicing lawyer preparing to give Merion advice on the legal ramifications and cures for their specific course, I'd first start by looking at Penn law to see how they handle analagous situations--  It may be that the county, city and state are more on the hook for those motorists then merion, depending on when the road was built and expanded.  I'd also look at municipal, county and state law, to see if Merion took care of this problem by statute when or before the road was built.  I'd aslo look at the history of the club and the road, so the above made sense.  That would be of course just a start.

But that is just me.   For you, might I suggest you at least take a quick look at attorney liability for giving legal advice and making legal pronouncements without having any clue what you are talking about.   In the alternative, you might want to check out liability for holding yourself out as an attorney when you are not.  

Just some friendly advice from one ex-lawyer to one current or future one.  

[SPDB]

Just some friendly advice from one ex-lawyer to one current or future one.  (my emphasis)

David - With friends like you, who needs enemies? For all your sage wisdom about misrepresentation, i find it amusing that you would characterize your advice as friendly. By any reasonable reading, your post was presumptuous and insulting.

When did this thread become the joint defense strategy meeting for Merion? I don't represent Merion. I've never held myself out as an attorney (either on this thread or elsewhere). So what's the point of your post, then?

I find little upside in doing costly research before I post thoughts on golf architecture discussion group.  If, however, you insist on me researching PA Law before I post something on Merion, please send me your address so I can forward the Westlaw bill to you.

If you disagree with my thoughts, be straightforward about. Don't resort to childish insults and high and mighty pronouncements of what you'd do in a situation outside of a golf chatroom. I don't care what you'd do in a situation that has no relevance to the discussion at hand. You seemed to have gotten the misguided impression that I was somehow interested in what you'd do, or, worse, that I'd want your advice.

I only hope that your ex-lawyer status has nothing do with your taking this attitude with your ex-colleagues or ex-clients. But, honestly, when I want advice about professional responsibility, I won't get it from a golf architecture website.

Thanks for the unsolicited advice and unwarranted insults.

[TEPaul]

SPDB:

You'd think the courts would find that putting up a net on those holes at Merion would be the proper and customary thing to do, do you?

I wouldn't know about that. All I know is from reviewing a number of past golf liability cases somewhat analagous to that the precedent that appears to be followed is that the law expects a club to do only the best they can, always understanding that a golf course and environs can never be completely safe.

I'm not as sure as you seem to be that a court would require Merion to put nets up on those holes along a few roads.

[TEPaul]

David:

I like your idea that it may be more the road that's impacted Merion than Merion impacting the road and those that use it. A very good case could be made that Merion did all they ever could've regarding liability when they decided not to play holes #10, #11 and #12 right across Ardmore Ave as they used to until the 1920s and redesigned them to be what they are now! I mean that's an architectural sacrifice that any court should understand for the rest of time--particularly any judge if he knows what's good for him.

I don't know if you were on this site when I posted how Merion handles accidents of any type on those two roads involving golf balls. Let's just say if you get hit by a golf ball no matter what condition you or your car is in it'd serve you well to get the hell out of there as fast as possible and never mention the incident again.

It's said that Merion has a massive compactor somewhere behind the maintenance barn and the maintenance crew's  been known to have whole station wagons and such and all the adults and children in them compacted into a two foot square piece of bleeding metal inside of seven minutes from the ball striking the car---and out of there onto the barges that dump crap off shore in no time.

Not that long ago a California reporter was in Philadelphia doing a story on this type of thing but he was found in a back alley one night following dinner at a very expensive downtown restaurant with a 1 iron in the back of his skull! The Feds tried to get involved and they suspected Huge "Puffy" Wilson (considered to be an illegitimate offspring somehow of Hugh Wilson) of the crime but in no time one of Philly's top criminal defense attorneys got involved and the case was never heard of again!

60 Minutes came down to do a follow-up investigation on this mysterious situation but the whole crew just decided to play Merion East and return to NYC the same day instead.

[SPDB]

Tom - First of all, let me say I am playing the devil's advocate here.

I don't think a court would require Merion to do anything.

Assuming Merion is not immune in some way (either by legislature, or some creature of property law),  I'm merely saying that a judge might find that the best Merion did, wasn't good enough. An injured party might be able to show that other courses in PA which abut public rights of way have netted in their golf course to keep flying balls from going out.

Do you think a plaintiff (and more importantly, a judge) would agree that Merion did the best they could?

(bear in mind, I am only considering Ardmore Ave, not Golf House Road).

[SL_Solow]

SPDB;  Although my friend David Moriarty does not need a defense, I am troubled by your reaction.  First, a response can be critical and friendly at the same time.  Those who agree all the time are not necessarily friends whereas those who bicker may really enjoy it, hence much of the misunderstanding regarding the exchanges between the esteemed Messrs. Mucci and Paul.  Turning to the specifics, no one has suggested that you or anyone else needs to do extensive research before they opine on matters of golf course architecture although many of our most enlightened responses have been the result of such research.  Here, however, you were not opining on matters of architecture but rather on means necessary to avoid or mitigate liability to 3rd parties resulting from particular design features.  While I doubt very seriously that any club would look to this forum for definitive legal advice, nevertheless David  is correct when he suggests that off the cuff advice on complex legal matters such as these is dangerous.  I have done some research in this area and the law varies among jurisdictions and continues to evolve.  So even if you were not intending to give advice, qualified or not, you ran the risk of misleading others who may not have been able to discern your intent or qualifications.  This discussion group is simply that; a place for discussion.  David said nothing that was disrepectful or over the top.  As long as I am speaking on legal topics for free (an infrequent event I can assure you) I feel compelled to "correct" one statement from Tom Doak whose posting here was extremely informative on the practical issues.  The standard of proof in a civil case is not the "beyond a reasonable doubt " standard but rather the "preponderance of the evidence" standard.  Additionally, although sometimes it feels different, the defendant need not prove his innocence (except in rare strict liability torts) but rather the plaintiff must meet that burden in establishing liability and damages.

[TEPaul]

SPDB:

Since the questions you're asking me are not even stated hypotheticals, it think what you should do is review the body of case law on golf related liabilty situations relating to roads and such and decide for yourself. If your club is a member of the NCA they'll make that case law available to you.

Obviously this type of thing generally involves a state or locality depending on the road but these cases are rare enough that I'm told judges in any state are inclined to use case law in any state to look for guidance and precedent.

[Jeff_Brauer]

When we discussed the ASCGA, I asked if they had done any lobbying, and the response was more about how fun and friendly the meetings are. Well, boys, clearly you've dropped the ball......

and......

Certainly neglegence should have to pay. But, how is Merion being neglegent, if some lucky somebitch gets to tee it up there and ends up hitting a shot, which they neither wanted or expected, yet ends up lethal..? ......

and......

It would appear some member got drunk at the club one night and was driving his cart home, in the dark, at a high rate of speed. Well, the poor sot gets severley injured and wants to blame the gc architect? Even a politician sould be able see the inequity in that..........

Adam,

I don't remember exactly what you asked that we should lobby for over at ASGCA, but if I responded, I guess I wasn't thinking of safety issues.  We have discussed lobbying on many issues, but not on these types of legal issues.  

Why? We don't control the world - the lawyers come the closest, naturally,  and there are actually many state, circuit, county, and federal courts.  Which would we lobby with our limited funds?  For that matter, should we lobby 250 Mil potential jurors, just in case they get on a case?  

The legal system may have its doctrines, but the most important is that each case is unique, at least in the US.  Another is the concept of Precedence, where what juries and judges have said before influences current cases.  Yet another is that professionals should adhere to the highest possible standards of care in their industry, which court cases continually revise upward through jury awards, as they probably should, allowing for the fact that we may individually disagree with many specific cases.

If you know how all of those would play out in a real, not hypothetical case, which is influenced by how nice the various parties and their lawyers appear to be, how much insureance money they are percieved to have, or how much need they are percieved to have, etc. you are a better man than I!

For what it's worth, my take and experience on golf and legal matters is that their is some assumption of risk by participants, and less so by innocent standers by.  If a golfer gets hit, the jury would have to find that he couldn't reasonably foresee the danger, and more importantly, that the club (and/or architect) reasonably could have seen it in the layout of the course.

In housing, buyers often assume risk (and we encourage clients to develop convenants that limit their ability to sue - one of which has saved me a lawsuit - but nearby motorists may not.  After all, a hedge may block their view, etc.  (I do recall driving by a course one day with Dad on the way to golf elsewhere.  A ball hit our windshied.  Dad had me get out and pick it up, and he used it later!  Why not today?)

I may have told this before, but Pete Dye got dragged into a cart lawsuit, even though he didn't design the cart staging area where a lady backed over her sister, breaking her leg, and leading to a lawsuit.  

When asked if the area was big enough, Pete replied, "Testimony says she backed up without looking, and hit her after moving about six inches.  It seems to me that had the area been as big as Montana, she still would have hit her!"  Common sense prevailed (after what I am sure was $1000's in legal fees) and Pete got out of the suit.

[A_Clay_Man]

Jeff- I've been fortunate to see first hand, an industry "deal" with the political side of the things. It's a long slow process, similar to our country's glorious system(s). This separate entity, collects donations from everyone who chooses to donate and collects monies from all the periphrial businesses, too. It spreads money around litterally everywhere. Dems, Reps, Federal, state. They all get theirs, and so far we haven't gotten the shaft. I can only assume it works. While the money does get spread around, (every year) not one politician gets too much.

So Jeff, you may not need to be as big as you might think, to get some influence.  Starting somewhere is all that's necessary and some really good posturing.

When I was inquiring about the functions of the association this was the type of answer I was hoping to hear. It's never too late to try !

[Tommy_Naccarato]

If some of you don't watch your P's and Q's, I'm going to sue you!

Especially you Jeff Brauer!

[SPDB]

SL Solow:

I wouldn't expect you to find anything objectionable in David's post. Perhaps if he made presumptuous conclusions about you or your adherence to professional responsibility (prospective or otherwise), you might feel differently. But then again maybe you wouldn't. You know David, and he knows you. But that illustrates what I find so offensive - he doesn't know the first thing about me. If you find my response troubling, but find nothing out of the ordinary in David's post, I suspect you either didn't read it closely enough, or you are blindly coming to your friend's defense (needed or not).

Would it be any different if, in responding to any one of David's architecture-related posts, I inserted the sign-off that I thought that it would be morally or ethically irresponsible to hold himself out as a golf course architect, and would be highly objectionable for him to mislead and deceive a "client" into contracting on that basic assumption?

It would be absurd, but it would be no less warranted than David's warnings to me. I have no reason to believe that David would be capable of something like that (either the architecture or the misrepresentation), and nothing in his posts would lead me to the conclusion that David would be well served with a little well-intentioned advice. Likewise, nothing in my posts suggests that I have deceived anybody or misrepresented myself or my capabilities and experience, and, better still, that I seem likely to in the future.

It's an ad hominem attack, cloaked in the guise of "advice."

Who knows, maybe as an ex-lawyer he speaks from experience.

[Mike_Cirba]

Tom Paul;

As one of the very few people who knows Huge "Puffy" Wilson personally, and has actually been to his "crib", I feel that I can safely say that he's not someone an unsuspecting motorist (and potential litigant) would want to f*@k with.  

For instance, I know that he employs a full staff of sweaty, burly "contractors" who are not only well-versed in the construction of dozer-generated bunkers, but also in the wielding of smaller, more dangerous, easily concealed "tools of the trade".  

His hip-hop company clearly is a front for his real passions; delving into creative modifications to traditional golf course design, keeping his posse well-fed and well paid, maintaining a strong pi*p hand on his slew of female "associates" (this being a family website prevents me from using street language to describe their activities), and acting as the muscle behind relatively timid,mild-mannered, weak modern architects.

Ardmore Avenue is truly no man's land when governed by such a presence.  Legal considerations are rendered meaningless when "street justice" and the threat of same is administered by such a protective force.

Who knew that the Main Line would become the 'hood, and that "East Coast" jurisdiction would extend so far?

   

[TEPaul]

Mike:

"Puffy" Wilson's name came up at some point during those Merion bunker project threads. It's said that every man has a skeleton somewhere in his closet and obviously "Puffy" Wilson is just that in Hugh Wilson's. It's probably no real wonder then that neither Wayne nor I can find a single record of Hugh Wilson's personal life anywhere in the vicinity of Merion G.C. or Philadelphia for that matter.

It seems to me there was some evidence of a "Puffy" Thomas during that time Fazio/Macdonald was redoing the bunkering at Riviera but for the life of me I can't now remember what that "Puffy" Thomas thing in LA was all about.

[DMoriarty]

SPBD,

I consider almost everyone who posts here to be my friend.  Otherwise I wouldnt bother.

I do regret that you have taken offense to my suggestions rather than taking them to heart, but that is certainly your perogative.  

If you really dont comprehend the "point of [my] post," perhaps you should consider it in the context of all of your law related posts on this thread, and not just the last few.  If that doesnt help, feel free to send me a message and I will glad to explain it to you in private.   Or if you prefer I will explain here.

If you are seriously curious about legal issues facing golf courses, I believe that very soon there will be a continuing legal education seminar regarding such at La Quinta.   Perhaps you should put together some sort of self-study arrangement with your school and attend.   I for one would really appreciate hearing about it.  

[Patrick_Mucci]

Peter Pittock,

Regarding your questions about Bandon Dunes and Pacific Dunes, the answers are maybe, no and no. PD 3&12 may be contiguous, but you literally have to go out of the way to find the other fairway for no realistic reason.

My drive, into a good, slightly left to right head wind, was a perfect pull hook into the 12th fairway.

My concerns on the tee were that I didn't want the drive to get away from me high right, with a fade or a slice, and as such I probably overcompensated.

I was pleasantly surprised that I had a great angle back to an ideal location in the fairway near the green, provided that I could clear the intervening gunk or left side rough, and provided that I didn't duplicate my tee shot.

I hit a very good 3-wood, then a good approach 12 feet from the hole, where I just missed the putt.

The strong winds in your face almost mandate a wide fairway or contiguous fairways, and I'd venture to say that under similar wind conditions, more then a few golfers playing # 3 have found # 12 fairway, and vice versus.

It worked nicely for me.  

[peter_p]

Pat,
   My congratulations. I can't hit it far enough to get there from the tee. Was thinking further up towards the dunes on my second shot.

[Jeff_Brauer]

Jeff- I've been fortunate to see first hand, an industry "deal" with the political side of the things. It's a long slow process, similar to our country's glorious system(s). This separate entity, collects donations from everyone who chooses to donate and collects monies from all the periphrial businesses, too. It spreads money around litterally everywhere. Dems, Reps, Federal, state. They all get theirs, and so far we haven't gotten the shaft. I can only assume it works. While the money does get spread around, (every year) not one politician gets too much.

So Jeff, you may not need to be as big as you might think, to get some influence.  Starting somewhere is all that's necessary and some really good posturing.

When I was inquiring about the functions of the association this was the type of answer I was hoping to hear. It's never too late to try !

Adam,

First, I'm not sure political donations would help, unless you assume the politicos would go out of their way to pass laws to benefit the golf industry legal concerns specifically.  Look what big tabacco has poured into political campaigns, and it didn't help them avoid states lawsuits to recover health care costs, etc.  

Even assuming we could be effective, trying to decide where to start is a problem.  If we lobby in Texas, our Massachusetts members wonder why, although we have lobbied specific states on licencing laws.....

And of course, all could be derailed when an attack dog lawyer represents some kid who has been knocked on the noggin.  Most legislators are lawyers themselves, and agree with the concept of separation of powers AND lettng the courts do their jobs......

In the earlier post, I meant to mention that when associations get involved, it is sometimes in the effort to define "professional standards."  There is a problem with that, as any lawyer will tell you.  Specifically, if ASGCA came out and said housing corridors should be 400 feet, and someone (member or non) designs one that is 399 feet, that "printed standard" can be used against all of us.

So, we don't do those kinds of standards.  As far as I am concerned, there should be few published standards for golf safety, as every case truly is unique.

When you calculate the time and space coincidences that must occur for a 1.68 inch diameter to hit a human size noggin, it is really mind bogglingly small, don't you think?  Whereas you and I would think "what's one lousy foot" (and would likely be right.....) a lawyer would say "You are 1 huge foot short of meeting your own standards....."

 

[A_Clay_Man]

Jeff-It's a fascinating process and one that is open to new ways of getting what you want. Hey, it might be as easy as having a specifc committee chair attend one of your meetings, Just for the golf of course!

Choosing the battles, is also a big part of what to do and what to focus on. I won't sit here and try to come-off as some expert, or anything close, but I think it involves more of preventing serious long-term hinderances than specifcally laying down standards.

Factions cannnot exist without a Democracy and vice versa.

[Patrick_Mucci]

How much of the absence of dual fairways it attributable to legal concerns and how much is attributable to the architect's lack of fondness for them ?

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