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Adam_F_Collins

Fore! Who's at fault if someone gets hit?
« on: May 31, 2004, 04:42:19 PM »
I read in Hurdzan's "Golf Course Architecture", that on a list of priorities of the golf course architect, Safety is number 1.

My club is old. The course is squeezed into a downtown property of 106 acres. Despite the efforts of the club to stop errant drives with new 75 foot fences and whatnot, they still get through. (which is one of the major reasons we're trying to move to new property with a better buffer zone.)

Today I hit a drive on 18 and the wind took it right over the fence into residential back yards. My whole body tightened, waiting to hear 'crash' or a scream or something terrible. Nothing came, and I hit an iron and walked sheepishly up the fairway, waiting for some frowning landowner to come to the fence...

If a person got hit by my drive, what would happen? I would feel terrible, of course (and so would they) but - slices happen. If they didn't, golf just wouldn't be golf.

Who would be liable if someone got hurt? I must say, as much as I love the old course, I do hope we move to a new property - and it's quite possible that it will turn out to be a bland, run-of-the-mill modern design - But I get sick of worrying about hitting someone...

A_Clay_Man

Re:Fore! Who's at fault if someone gets hit?
« Reply #1 on: May 31, 2004, 05:15:23 PM »
Adam- First off, remove "it" from the equation. Leave the big stick in the bag!  Whether it's legal or not, "you" should be responsible for what you do. AS so should "they" if they are aware of the risk, and do nothing to minimize it. Living next to an exisiting golf course should come with a modicum of common sense. Same is true if you park your car near one.

Seriously, is any injury or property damage worth the risk of someone hitting the best drive of their life?
« Last Edit: May 31, 2004, 05:19:49 PM by Adam Clayman »

ed_getka

  • Karma: +0/-0
Re:Fore! Who's at fault if someone gets hit?
« Reply #2 on: May 31, 2004, 05:25:12 PM »
In the scenario you describe the person who gets hit is the victim of their own location. No one wants to hit someone with a golf ball, it hurts, but its inevitable. I have been hit twice and it hurts, but I never, EVER would blame the golfer who hit the shot. I think in most cases from a legal standpoint you are okay, but I believe some states have ruled against golfers occasionally.
  To me, the whole issue just comes down to common sense.
"Perimeter-weighted fairways", The best euphemism for containment mounding I've ever heard.

rgkeller

Re:Fore! Who's at fault if someone gets hit?
« Reply #3 on: May 31, 2004, 05:35:45 PM »
In the scenario you describe the person who gets hit is the victim of their own location. No one wants to hit someone with a golf ball, it hurts, but its inevitable. I have been hit twice and it hurts, but I never, EVER would blame the golfer who hit the shot. I think in most cases from a legal standpoint you are okay, but I believe some states have ruled against golfers occasionally.
  To me, the whole issue just comes down to common sense.

I doubt that a jury would agree with you if the person struck was off the golf course property and in their own yard.

Jack_Marr

  • Karma: +0/-0
Re:Fore! Who's at fault if someone gets hit?
« Reply #4 on: May 31, 2004, 05:36:16 PM »
Is it not Fazzio's fault?
John Marr(inan)

TEPaul

Re:Fore! Who's at fault if someone gets hit?
« Reply #5 on: May 31, 2004, 05:47:31 PM »
Adam:

Starting about six years ago and for the restoration of my club and a few safety issues I started tracking this issue huge---the whole legal evolution and theory behind this kind of thing although certainly the particulars of any situations changes things. But it's pretty interesting how the law looks at people getting hit by golf balls and where the liabilty tends to fall. Things have been changing some though, shifting in the last twenty years or so from almost total liability of the hitter to now being shared by the club. This might fall into the so-called "deep pockets" legal thing that seems to be creeping up on us legally in our increasingly litigous society.

But for all this I did get most all the significant cases studies from the NCA (National Club Association) in Washington, D.C.

There's nothing definite in all this since any lawyer will tell you anyone can get sued for anything but in golf ball and golf related accidents there are some interesting guidelines to know about.

Generally speaking though the law does look at golf as potentially dangerous and so they never ask anyone or any club to try to create a situation where there's zero danger. The law does recognize that's an impossiblity.

rboyce

  • Karma: +0/-0
Re:Fore! Who's at fault if someone gets hit?
« Reply #6 on: May 31, 2004, 06:10:22 PM »
A friend had to pay for a new windshield when he hit a car with an errant shot.

My most embarrasing moment came when I hit a 983k/prov1x-enabled drive into the FRONT yard of a house that BACKED to the fairway. The owners were lingering in their backyard as we approached the tree-lined landing area. He called out, "if you're looking for a titleist it's in my front yard." I offered my apologies and then played my second ball which i had hit 300 yds down the middle.

TEPaul

Re:Fore! Who's at fault if someone gets hit?
« Reply #7 on: May 31, 2004, 06:25:06 PM »
Here's a good story of hitting a ball into someone's yard told to me a couple of months ago by J. Capers of Merion.

Quite some years ago John was playing with Bob Hope and a couple of his friends at Merion for reasons that as I recall weren't all that clear to John, other than he's a very good player.

John said Bob Hope was about the most regular guy imaginable. On hole #8 Bob Hope sliced a ball over the fence into this guy's yard. John didn't know or say whether Bob Hope hit the guy or not but when Bob got to the fence and the yard he said he was sorry and asked the guy if he would throw his ball back to him which apparently was lying right there in the yard on the other side of the fence. The guy wouldn't do it. (John said he didn't think the guy had any idea it was Bob Hope on the other side of the fence).

So Bob Hope asked again politely if the guy would throw his ball back over the fence and the guy refused. So Bob Hope says to his caddie: "Let me have another ball". The caddie gives Bob another ball and Bob throws that one over the fence and says to the guy:

"Here fella take this one too, every asshole should have two balls!"

Brad Klein

  • Karma: +0/-0
Re:Fore! Who's at fault if someone gets hit?
« Reply #8 on: May 31, 2004, 07:01:25 PM »
Ed Getka,

interestingly, there is no protection afforded a club because of "prior risk" assumed by an outsider. It doesn't even matter if the house is built after the course opened. Essex County Club in Ma. faced this situation and ended up having to rebuild a par-3 when a neighbor complained (conclusively) that his house (built in 1927) was getting clobbered from a hole designed in 1916. No state in the country has a statute that absolves a facility for assumed or prior risk like that.

I don't know what the liability of the golfer is, but I would assume the majority of the burden falls upon the club.

The reasoning for no doctrine of 'assumed risk" by outsiders is simple - even in a pre-existing condition, the nature of the risk evolves historically owing to more play, greater velocity and distance of golf balls, etc. Since 9/10ths of the population doesn't play golf, you can be assured lawyers know that 10-11 members of the jury will be predisposed against a golf club if a case goes to trial. So older clubs with older definitions of "acceptable" or "assumed risk" are very much having to reassess their practices these days.

No one is more informed about these matters than Hurdzan among the golf course architects, by the way. And I bet you they all carry extensive liability insurance to cover themselves.

Forrest Richardson

  • Karma: +0/-0
Re:Fore! Who's at fault if someone gets hit?
« Reply #9 on: May 31, 2004, 10:38:02 PM »
I have seen — and been on both sides — of the "golfer" -vs- "club" issue. There are conditons which would hold that both are at fault. There are experts that will defend each.

Both golfer and club have a responsibility to protect off property damages from errant balls.

To answer your question: You are probably at fault...but if the damages are ample, I can bet your insurance carrier will call Hurdzan or me (or another architect) to see if we might testify against the club or any other entity which could possibly be held accountable.

At a case a few years ago a chap got hit and the following were brought into the suit:

a -- Golfer who hit the ball
b -- Course owner
c -- Course management company
d -- Architect
e -- The golf school using the range at the time
f -- The director of golf

There is no stopping the tail of a lawsuit once the stakes get high. In this case the guy lost sight in one eye, so the stakes were plenty.



« Last Edit: June 01, 2004, 08:15:57 AM by Forrest Richardson »
— Forrest Richardson, Golf Course Architect/ASGCA
    www.golfgroupltd.com
    www.golframes.com

ed_getka

  • Karma: +0/-0
Re:Fore! Who's at fault if someone gets hit?
« Reply #10 on: May 31, 2004, 10:51:07 PM »
What an utter lack of common sense! Someone can build a house next to an existing golf course and force them to do something about golf balls whizzing about. Sometimes its just embarassing to have to function in this society we live in. ::)
   Sh*t happens, it doesn't entitle someone to win the lottery.
  I read once about a guy stealing a car from a parking lot, then died in a crash resulting from a high speed chase, and the family won a suit claiming the parking lot owner was at fault for not providing good enough security to prevent the theft in the first place. How asinine is that?!!!!
"Perimeter-weighted fairways", The best euphemism for containment mounding I've ever heard.

Brad Klein

  • Karma: +0/-0
Re:Fore! Who's at fault if someone gets hit?
« Reply #11 on: June 01, 2004, 03:33:37 AM »
Ed Getka,

Unfortunately, I don't think it's a reasonable idea (anymore) to assume that the terms "common sense" and "lawyer" belong together. The law is casuistic, meaning that it gives people the leeway to interpret it in all sorts of tortuous ways in an effort to squeeze some advantage out of it. Civil suit lawyers will tell you that this is the only way to protect victims. I think - as I believe you do - that the pendulum has swung too far and that our modern society has abandoned notions of common sense, reasonable risk, and "hey, you know sometimes shit happens" for the view that someone is always to be blamed and thus to be found liable.

TEPaul

Re:Fore! Who's at fault if someone gets hit?
« Reply #12 on: June 01, 2004, 04:28:51 AM »
Brad:

I believe the case study of the hole at Essex G.C. was one of those I read that was supplied to me by the NCA--I also spoke with an NCA consultant lawyer about golf liability situations. Although on the face of it, and the way you present it, the case would seem to have gone against the club unnecessarily when one considers the logic of "assumed" or "prior risk", there were a few other pertinent details in that Essex case that should be presented.

I probably have the case study around here somewhere but from memory the suit was brought by the homeowner against the club but only after some non-legal negotiation with the club apparenty failed over time. The house had been there for a long time, as you said, probably establishing some logic and basis for "prior" or "assumed risk".

However, the complaint/plaintiff/homeowner had recently bought the house and was more than slightly surprised how much his property was getting pummeled by golf balls (apparently a situation that was anything but recent--eg "assumed" or "prior risk" on the part of the previous homeowner(s) ).

It's also my recollection that the new homeowner considered suing, or did sue, the realty company (and perhaps the realtor) for not informing him of this risk (which a realty company legally should have done and is required to do) but there probably wasn't potential satisfaction there financially and the problem with the golf hole would've still existed even if the owner won a suit against the realtor.

So the owner began to negotiate with the club for some sort of satisfaction as to his property being pummeled by golf balls but, as often happens in these pre-existing situations the club didn't take it seriously enough and ended up in court and we know the rest of how the hole eventually got redesigned in some more than minor way.

But, as you mentioned, these kinds of situations are causistic and very individual legally, although there are apparently certain legal guidelines that any judge and jury anywhere are likely to review on previous case studies of golf related danger.

And that, generally speaking, is what the NCA lawyer was trying to explain to me. In layman's terms that would be that the law looks at golf and golf courses as inherently dangerous and the most the law expects a club, particularly an existing club, for instance, to do is the best they can under the existing or even pre-existing situation. That means the law expects them to only do the best they can (which ironically may even mean only doing nothing to make the hole MORE dangerous than it's always been) and not to have to create an atmosphere that completely removes potential danger which the law apparently realizes is an impossibility in the real world.

A good example or analogy to the Essex situation would probably be the 15th hole at Merion East. If a new homeowner bought the property across the street (a property that has always had a good number of incoming golf balls) I seriously doubt that homeowner would get much satisfaction under the law from a realtor who forgot to inform him of the situation or from Merion to redesign that hole somehow.

The reason being although "assumed" or "prior risk" may not run with the land in a legal sense as a recorded or established easement, for instance, the situation would logically be viewed legally as so obvious that the law would likely decide the prospective homeowner should have known to assume that prior risk or just go find himself another house somewhere else.

So in a real way, and certianly in some situations, the legal logic of "assumed" or "prior risk" apparently does exist.
« Last Edit: June 01, 2004, 04:31:11 AM by TEPaul »

Brad Klein

  • Karma: +0/-0
Re:Fore! Who's at fault if someone gets hit?
« Reply #13 on: June 01, 2004, 08:14:32 AM »
TEPaul,

you are right, that the homeownewr in question at Essex had recently moved in and had been assured by the then-owner of no risk. Coincidentally, the fellow who filed the complaint had many other suits going on at the time or on his resume, so to speak, and it's my understanding that he was subsequently jailed for tax evasion. The relevant issue for this thread is that Essex County Club ducked its head in the sand and assumed it could get away w/o addressing the issue. I wrote a very detailed article about this in Superintendent News at the time, including quoting Hurdzan, and would be glad to forward it to you or to anyone.

A_Clay_Man

Re:Fore! Who's at fault if someone gets hit?
« Reply #14 on: June 01, 2004, 09:50:42 AM »
If "the club" can be held liable, shouldn't they be more circumspect as to who tees it up?

Doesn't a plantiff have to show damages? Shouldn't the homeowner do something, to minimize the balls hitting their house? (sure it sucks, but it don't hurt, or do long-term damage)

I know of one situation where a guy was struck, and was seriously injured. He was awarded 400k. And supposedly is seriously messed-up to this day. The city, whose insurance co paid the 400k, put up a sign telling people to be careful, and that mitigates their liabilty? The Dr. is right, that the law and common sense have diverged to the point of ridiculous.




Dave_Miller

  • Karma: +0/-0
Re:Fore! Who's at fault if someone gets hit?
« Reply #15 on: June 01, 2004, 10:14:12 AM »
This is an issue that arises frequently at Charles River primarily with automobiles being hit.  A reasonably well traveled road runs along the left side of the Par 5 16th hole.  It is not unusual to see Tee shots and occasionally second and third shots hit into the road.  Over the years more than one automobile has been hit.  The Club carries insurance to cover this and, according to my Attorneys, my homeowners insurance and Umbrella liability policies come into to play to protect the golfer and provide coverage for other injuries.  Fortunately windshields in Massachusetts are covered without deductible by all car insurance policies.

Fairways and Greens only (Stay out of yards and roads ;))

Dave

fred ruttenberg

  • Karma: +0/-0
Re:Fore! Who's at fault if someone gets hit?
« Reply #16 on: June 01, 2004, 12:31:00 PM »
I was impressed with Tom Paul's comments-he is starting top sound like a lawyer(which I am). We have discussed this issue on occasion. A few observations:
1.Facts are rarely clear and that leaves the decision in the hands of a jury-which can be random.
2.Negligence is a major factor-if someone hits a drive when the preceding foresome is in range-the golfer will probably be liable. If a person(not a long driver) hits a once in a lifetime drive over 300 yards, and yells "fore", he would probably not be liable for striking someone in the preceding foresome.
3. Someone buying a house next to a golf course (eg. golf course lot in a development) knows about the probability of golf balls striking his property and would not have a claim unless there has been a change to the hole which increses the liklihood of errant balls hiting the property.
4. I am not aware of absolute liability statutes for hitting golf balls (haven't researched the issue) . Without such a statute I assume a player slicing a ball and hitting something (person, car,etc.) would not be liable. If a club parks cars in an area where balls lands,even as a result of an errant shot, the club could be responsible.

These are all general statements and specific facts are necessary.
« Last Edit: June 01, 2004, 12:31:43 PM by fred ruttenberg »

Steve_ Shaffer

  • Karma: +0/-0
Re:Fore! Who's at fault if someone gets hit?
« Reply #17 on: June 01, 2004, 02:07:14 PM »
For those of you interested in reading a law review article on this topic, here it is:

www.njinjurylaw.com/Articles/Golf.htm

I think this article presents a good overview on the various issues that can arise.

I'll post later about an opinion letter that I wrote for my former club concerning a dangerous condition on the course and my personal experience with this dangerous condition. I'll try to find it in my closed files tonight.

Steve
"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”

Mike Hendren

  • Karma: +0/-0
Re:Fore! Who's at fault if someone gets hit?
« Reply #18 on: June 01, 2004, 03:08:13 PM »
I blame the USGA.  Had they reigned in the golf ball, nobody would get hit as the ball would always drop and stop before it reached its victim.

Mike
Two Corinthians walk into a bar ....

Steve_ Shaffer

  • Karma: +0/-0
Re:Fore! Who's at fault if someone gets hit?
« Reply #19 on: June 01, 2004, 11:39:46 PM »
Strangely enough, I was able to locate the closed file containing my opinion letter to my former club concerning their potential liability for a dangerous condition on the course.
As many of you who are from the Philadelphia area know, my former club's 16th hole, a straight away 170y 3par, is located within the corner of the 15th hole, a dogleg right 4 par. The 16th green catches errant tee shots(slices and bad shots from those trying to cut the dogleg) from the 15th tee. The 16th hole was originally to be located on a diagonal towards the 15th tee with the green in a wetlands area. This was not approved by the enviromental authorities. The only location to place the green was at the corner of the dogleg and so it was built there. Over the 10 years since the club opened, there were many close calls of golfers on the 16th green almost being hit by errant tee shots from 15th tee. The club tried to place a sign on 15th tee reminding golfers to yell "Fore" and even placed a bell there to be rung when tee shots were hit. Nevertheless, the close calls continued. The club considered reapplying to the environmental authorities for permission to build a new 16th hole as originally planned with the green in the wetlands. I wrote an opinion letter stating that the design was a dangerous condition on the property and the club faced potential liability if a golfer on the 16th green was injured as result of an errant tee shot from 15th tee. There was a PA case from 1967 denying recovery to a caddie who was injured as a result of a dangerous condition on the course similar to my club's situation;however, the denial was based on Worker's Comp law in that an employee(the caddie) can not sue his employer(the club) for negligence. There was also a 1995 CA case granting recovery to someone injured on a golf course as a result of the course owner failing to screen a particular area on the course from errant shots. I suggested that my club either screen the area or try to move or redesign the 16th green. Shortly after I wrote this letter, I was on the 16th green, and while bending over to mark my ball, a ball whizzed by my head very closely.
The club tried for environmental approval and while the application was pending there was heavy rainstorm flooding the wetlands. The club realized that if they spent the money to locate the green in that area, money would be wasted if the green were flooded often. A redesign was suggested and obtained but the club has yet to decide to rebuild the 16th green. I'm not a member anymore, but if someone is now injured on the 16th green, it's a slam dunk case against the club.

Steve
"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”

TEPaul

Re:Fore! Who's at fault if someone gets hit?
« Reply #20 on: June 01, 2004, 11:45:23 PM »
"I was impressed with Tom Paul's comments-he is starting to sound like a lawyer (which I am)."

Fred, you just hold on now--you know I can stand talk like that!! All I ever wanted to sound like was Fireball Roberts--God rest his soul.   ;)

TEPaul

Re:Fore! Who's at fault if someone gets hit?
« Reply #21 on: June 01, 2004, 11:50:04 PM »
"I blame the USGA."

MikeH:

Of course you do. Everybody blames the USGA for everything these days. They probably were responsible for 9/11 and the war in Iraq too. Do me a favor and everytime you blame the USGA just try to write it USGA/R&A!

DMoriarty

Re:Fore! Who's at fault if someone gets hit?
« Reply #22 on: June 02, 2004, 02:00:29 AM »
My ears were burning . . . I could have sworn that Sean was around here somewhere with an enlightening and powerful indictment of one of us, for sure.  

Mr. Shaffer,

Thanks for the link to the informative article.  Too bad it isnt a more recent, as it would be a valuable reference for anyone who was curious about these issues, or should be.  

A_Clay_Man

Re:Fore! Who's at fault if someone gets hit?
« Reply #23 on: June 02, 2004, 09:01:56 AM »
I wonder, if in that $10 million study, the USGA will discover, that a person hit with a wound balata, will suffer minimal injury, compred to the newest type of hard centered and hard covered balls? Will that evidence be admissable in a court of law? Wouldn't that place, most of the onus of responsibility, on the manufactuer, of that ball? With a majority of the remaining fault, falling on the person who hit it?

Is this a logical avenue to explore for the "rollback" advocates?

JakaB

Re:Fore! Who's at fault if someone gets hit?
« Reply #24 on: June 02, 2004, 09:18:36 AM »
I wonder, if in that $10 million study, the USGA will discover, that a person hit with a wound balata, will suffer minimal injury, compred to the newest type of hard centered and hard covered balls? Will that evidence be admissable in a court of law? Wouldn't that place, most of the onus of responsibility, on the manufactuer, of that ball? With a majority of the remaining fault, falling on the person who hit it?

Is this a logical avenue to explore for the "rollback" advocates?

Adam,

One point you are missing is that with the new balls a golfer or me for example does not hit as freaky a duck hook or huge bananna as we used to with an oblong shaped Blue Max...It is much easier to estimate the landing area of the linear flight of the modern ball.....not to mention the lack of heel and toe shots we used to hit off of persimmon.

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