"I bet old Tom Morris didn't worry about getting sued" lessons on legal liability in golf course design.Do you think Old Tom Morris ever worried he might end up in Scottish court Scottish court may refer to:
Picture the scene. It is 1895 in St. Andrews, Scotland. Old Tom Morris is toiling away in his clubmaking shop next to the 18th green of the Old Course--a hickory Hickory, city, United States Hickory, city (1990 pop. 28,301), Burke and Catawba counties, W N.C., at the foot of the Blue Ridge Mts.; inc. 1870. It is a processing and trade center for an abundant agricultural region (grain, soybeans, poultry, hogs, shaft in one hand and a newly hammered cleek cleek n. 1. Sports a. A number one golf iron, having very little loft to the club face. b. A number four wood. 2. Scots A large hook, such as one used to hang a pot over a fire. head on his work table. A sheriff officer enters the front door and greets him with a hearty hello. "I cannae believe this is happening. A laddie lad·die n. A boy or young man; a lad. Noun 1. laddie - a male child (a familiar term of address to a boy) sonny, sonny boy, cub, lad fell into Barry Burn at Carnoustie. He knocked his head and has hired a solicitor to sue ye. Ye'd think he had a wee too much to drink out of his gowfing flask flask (flask) 1. a laboratory vessel, usually of glass and with a constricted neck. 2. a metal case in which materials used in making artificial dentures are placed for processing. or something. These papers tell ye what ye need to do. Damned shame Tom, what this world has come to." If you caught Old Tom on a bad day, the response might have gone something like this: "I'll knock that foozler's head off with one swipe of me spoon." Times Have Changed Those noble artisans who make a profession of laying out golf courses, architects, if you will, might have the same initial response today. Golf course designers, and the golf clubs that hire them, however, are faced with the stark reality of today's litigious litigious adj. referring to a person who constantly brings or prolongs legal actions, particularly when the legal maneuvers are unnecessary or unfounded. Such persons often enjoy legal battles, controversy, the courtroom, the spotlight, use the courts to punish age. Some will rightly believe lawsuits and courtrooms are not the time and place to determine industry standards. Certainly, lawyers and judges Alexis de Tocqueville, 1835 Alexis de Tocqueville, a French political scientist, historian, and politician, is best known for Democracy in America (1835). A believer in democracy, he was concerned about the concentration of power in the hands of a centralized government. shouldn't be the ones deciding golf course routing issues. Golf course design is more an art than a science. Attempts to standardize or regulate the profession could be met with an Old Tom Morris-like reaction: "I oughtta--! Time and tide wait for no man. Judges and the courts they serve are charged with settling legal disputes. From time to time, a case will raise the issue of whether a golf course architect is liable for an injury on a course they have designed, remodeled, renovated, or restored. Whether this is perceived as unwanted judicial interference Judicial interference is a negatively connoted term used to describe the actions of courts or judicial officers in matters that are interpreted by some as beyond their constitutionally established role. Many groups accuse the courts of judicial interference. or the proper operation of civil justice is neither here nor there. The truth of the matter is that golf course (design) liability is here to stay. History Lesson It has been written that perhaps the first tiny seeds of golf course architecture date back to 1764. Members of the Gentleman Golfers of St. Andrews golf club suggested a change to the layout of the Old Course. As golf continued to become entrenched en·trench also in·trench v. en·trenched, en·trench·ing, en·trench·es v.tr. 1. To provide with a trench, especially for the purpose of fortifying or defending. 2. in society, so did the need for more formalized for·mal·ize tr.v. for·mal·ized, for·mal·iz·ing, for·mal·iz·es 1. To give a definite form or shape to. 2. a. To make formal. b. golf course design. Throughout the 1800s, golf courses were laid out by the likes of Old Tom and Allan Robertson Allan Robertson (1815 – 1859) was a golf player, considered one of the first professional golfers. He was born in Saint Andrews, Scotland, the "home of golf". In the mid 19th century golf was played by well off gentlemen as hand-crafted clubs and balls were expensive. . It is not until the early 1900s that the courts of Scotland
In the context of general equities, this describing a buy interest in which a dealer is asked to offer stock, often involving a capital commitment. Antithesis of in touch with. lost gutta percha Gutta percha An inert latex-like substance used for filling root canals. Mentioned in: Root Canal Treatment balls in neighboring neigh·bor n. 1. One who lives near or next to another. 2. A person, place, or thing adjacent to or located near another. 3. A fellow human. 4. Used as a form of familiar address. v. farmland. A Scottish judge, Sheriff Hay Shennan, determined that a golf course must be laid out so that golf balls are not likely to be driven onto adjoining farm fields. "The defenders ought to have foreseen that from the position of the teeing grounds, greens, and holes placed on their course, near the march fence, a very large number of golf balls would fall on the adjoining land ... " The Scottish cases of the early 20th century are remarkable for another reason. They illustrate an important point that is even truer today. The "defender," or defendant, in the lawsuit is not the person who laid out the golf course, but rather the golf club. In this case, it is Dysart Golf Club. As the game took shape oversees in the 1700s, it was golf clubs such as the St. Andrews Society of Golfers, the Honourable Company of Edinburgh Golfers, and the Royal Burgess Golf Society that laid down the rules and laid down the courses. It was a member of the golf club who charted the course of play. If we boil this history lesson down to two simple rules, they would look like this: 1. People who lay out golf courses are responsible for the flight of the golf ball. 2. Golf clubs are responsible for the people who lay out the golf courses. Fast Forward 100 Years Both rules are just as true today as in days gone by. The reasons may have changed, but the rule is just the same. Courts can hold the architect liable for the flight of the golf ball. Courts can hold the golf club liable when a remedy against the architect is unavailable. One way a golf course designer can become "unavailable" is when a legal claim against them is barred by the Statute of Limitations A type of federal or state law that restricts the time within which legal proceedings may be brought. Statutes of limitations, which date back to early Roman Law, are a fundamental part of European and U.S. law. . A Statute of Limitations sets forth the amount of time a claimant CLAIMANT. In the courts of admiralty, when the suit is in rem, the cause is entitled in the Dame of the libellant against the thing libelled, as A B v. Ten cases of calico and it preserves that title through the whole progress of the suit. has to bring a lawsuit after they have been injured or damaged. The length of time varies from state to state and depends on the type of lawsuit. Thus, once the Statute of Limitations runs out on the golf course architect's work, the designer can breathe a huge sigh of relief. In the eyes of the court, golf clubs step into the shoes of the designer the day professional liability is extinguished ex·tin·guish tr.v. ex·tin·guished, ex·tin·guish·ing, ex·tin·guish·es 1. To put out (a fire, for example); quench. 2. To put an end to (hopes, for example); destroy. See Synonyms at abolish. 3. . The lawsuit will speak in terms of negligent maintenance and failure to warn rather than faulty golf course design. Hence, the vast majority of our golf law decisions do not come in cases with defendants named Jones or Nicklaus or Fazio--they come in cases where the defendants are named "Club" and "Course." Common Ground There is no doubt that architects design challenging, enjoyable, and safe golf courses. Professional golf course architects are genuine stewards of the game. The American Society of Golf Course Architects has been around for 60 years. Their members have grappled with the industry's most difficult social and safety issues. Architects and golf clubs certainly share in the desire to protect members and their guests from danger. Besides altruistic al·tru·ism n. 1. Unselfish concern for the welfare of others; selflessness. 2. Zoology Instinctive cooperative behavior that is detrimental to the individual but contributes to the survival of the species. reasons, architect and club also have financial reasons to promote safety. They share in the common goal of avoiding accidents that result in a claim on their insurance. The architect wants to avoid a claim on their liability insurance policy just as much as you do. Both architect and club have a vested interest Vested Interest A financial or personal stake one entity has in an asset, security, or transaction. Notes: For example, if you have a mortgage, your bank has a vested interest on the sale of your house. See also: Right in a golf course free of as much risk as possible. Both architect and golf club would like to keep the risk / reward on the golf course--and out of the courtroom. Golf Course Design Liability There are many potential golf course liability landmines. Golfers have been injured on the golf course in a myriad of ways. Most of these situations, however, do not hark back hark intr.v. harked, hark·ing, harks To listen attentively. Idiom: hark back To return to a previous point, as in a narrative. to the inception of the golf course. The two that do, errant er·rant adj. 1. Roving, especially in search of adventure: knights errant. 2. Straying from the proper course or standards: errant youngsters. 3. golf shots and golf car accidents, make up the lion's share of golf course litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute. When a person begins a civil lawsuit, the person enters into a process called litigation. . These issues may relate back to the original design and construction of the golf course. Fore! Given the infinite distances in·fi·nite distance n. A distance of 20 feet or more, at which light rays entering the eyes are practically parallel. and directions players hit the ball these days, safety from errant shots is a very real concern. Errant shots often leave the intended line of flight destined des·tine tr.v. des·tined, des·tin·ing, des·tines 1. To determine beforehand; preordain: a foolish scheme destined to fail; a film destined to become a classic. 2. for unintended golf holes, private homes, businesses, and roadways. Architects need to consider the proximity of the golf hole to other golf holes, as well as the relationship of the golf hole to adjacent property. Golf course designers utilize planning tools to predict the flight of the ball and to protect against injury and damage. These tools have many names--safety cones, buffers, perimeters, corridors, and envelopes--but they have one common goal: to anticipate when and where those little white orbs will fall back to earth. These planning tools help the architect see potential zones of danger on (tees, greens, fairway, and rough) and off (neighboring residential and business communities) the course. But in today's golfing landscape, few distances are unreachable. Cones, corridors, and envelopes that created sufficient buffers 20 years ago are being shattered shat·ter v. shat·tered, shat·ter·ing, shat·ters v.tr. 1. To cause to break or burst suddenly into pieces, as with a violent blow. 2. a. by tech hungry players. Some of the courses designed in the golden age of golf architecture feel like shooting galleries shooting gallery Substance abuse A place–eg, an abandoned building in an economically-depressed urban area–ie, a ghetto, where IV drug users congregate, purchase, inject–'shoot' heroin, cocaine, oxycodone or other drug. compared to the expansive 7,500-yard golf "facilities" of the 21st century. These clubs that house these historic courses, therefore, are left with a thorny thorn·y adj. thorn·i·er, thorn·i·est 1. Full of or covered with thorns. 2. Spiny. 3. Painfully controversial; vexatious: a thorny situation; thorny issues. issue. With very little spare acreage to work with, golf clubs and architects will be hard pressed to find enough land to fix the problem. The other alternative may be equally unsatisfactory. A combination of walls, fences, nets, and warning signs may impose on the atmosphere and ambiance am·bi·ance also am·bi·ence n. The special atmosphere or mood created by a particular environment: "The noir ambience is dominated by low-key lighting . . . of the course. The golf club is truly between a rock and a hard place. Golf Car Paths People are traumatically injured in golf car accidents. Golfers fall out of ... get run over by ... and get thrown out of golf cars. A golf club could be a defendant in a lawsuit that also includes the golf course architect and golf car manufacturer. The club would be sued under a theory of negligent maintenance, the architect because of negligent design, and the manufacturer under a theory of product liability. The plaintiff can let the judge and jury sort things out and determine who is liable. Robert Muir Graves and Geoffrey Cornish in Golf Course Design list five major sources of golf car path liability: 1. Steep slopes. 2. Sharp curves. 3. Improper surfacing. 4. Inadequate protective guardrails. 5. Pathways that lead golfers toward incoming shots. Golf cars are an integral feature of most golf clubs. They have many important virtues. Golf cars make the game accessible for those who can't walk 18 holes, and more enjoyable for those who ride by choice. Golfers benefit from their convenience. But there is a cost. Architects and golf clubs shoulder a heavy burden. From a liability standpoint, golf cars have become a necessary evil. Making the Case If you have avoided a serious accident at your club up until now, consider yourself very lucky. This is why: (Very) Bad Things Happen At (Very) Good Golf Courses. It is estimated that almost 52,000 people are injured in golf related incidents each year. (See graphic on pg. 85) There is no shortage of tragic stories involving errant shots, golf car accidents, and lightning. The circumstances are well documented in golf industry trade journals. Injury + Attorney = Lawsuit. There are approximately 1 million lawyers in the United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. . You can practically knock a ball down any main street in America and hit the office of a personal injury attorney. If an accident occurs and someone is injured, brace yourself. Lawyers Sue Everyone (They Have To). Attorneys have to practice classic CYB--cover your backside. An attorney could face a legal malpractice A lawyer is obligated to comply with a code of ethics that is adopted by the state in which the lawyer practices. These rules, typically known as the Model Rules of Ethics, or Ethical Rules, address a lawyer's conduct in various situations. lawsuit if they fail to sue a party that could be responsible for the injury. If you don't like attorneys, you can be heartened by the fact that lawyers get sued too. Golf Course Risk Management and Liability Control What can a golf club do to prevent accidents, protect people from injury, and avoid liability? Common sense combined with sound risk management principles and a little time and money can remedy most dangerous situations on the golf course. Here are a few thoughts. Commit to an Atmosphere of Safety. Golf course architect, historian, and author Dr. Michael Hurdzan stated it best in his book, Golf Course Architecture: "The most important criterion for a golf course, the one that should take precedence over all others, is safety." Train your personnel to take safety seriously. Educate your membership to act responsibly. The message will come through loud and clear: We care! Conduct a Safety Audit on Your Course. In their musings on golf course architecture, Tillinghast and Mackenzie recognized that golf courses could be dangerous places. Take the first step. On a regular basis, identify problems that can lead to accidents and injuries. Start a Grass Roots grass roots pl.n. (used with a sing. or pl. verb) 1. People or society at a local level rather than at the center of major political activity. Often used with the. 2. The groundwork or source of something. Safety Campaign. Get feedback from the people who are on the course the most--your members and your staff. Provide preprinted cards, comment boxes, and surveys that give golfers and employees the opportunity to mention things they see on the course. Evaluate the Frequency and Severity of the Risk. Once your audit has identified existing risks, ask yourself two questions: 1. How often will this danger occur, i.e. frequency? 2. What is the worst thing that could happen, i.e. severity? Your commitment of precious resources such as time, money, and labor should be proportional to the frequency and severity of the risk. Eliminate the Risk. If possible, eliminate the risk--fill the hole, fix the railing, put up a fence or netting. Reduce the Risk. If you can't eliminate the risk, reduce as much of the danger as. possible. It is long a principle of law that a property owner is not an "insurer" of the safety of those who visit. What is expected is that golf courses make "reasonable" attempts to eliminate and reduce dangers. Transfer the Risk. Risk shifting is a very common practice in business. Insurance is a prime example of transferring the risk. The golf course has transferred the risk to the insurance company, albeit at a price. Other examples of risk shifting include warnings (signage, scorecard language), waivers (golf car rental agreements, release of liability clauses), and contracts. Document. Document. Document. Keep detailed notes of your audit and decision-making process. A safety journal can track the decisions you make that reflect positively on your commitment to a safe facility. If an accident does occur, your insurance company and their defense counsel will thank you. A court (and jury) should be more sympathetic to a club that tried than to one that never tried at all. Get Professional Help. If you are not sure what to do about a particular situation at your club, contact an expert in the relevant area. Attorneys, architects, and risk managers can provide you with valuable insight, and ultimately save you time and money. Develop a plan of action to address risk at your golf club. Today's golf manager, professional, and superintendent have many responsibilities, wear many hats, and work excruciatingly long hours. If liability issues are a concern, start the process. As unyielding as courts may be, they do not demand perfection. By exercising sound risk management judgment, you can control many of the liabilities found on the golf course. The end result is a win-win-win situation. Your members, guests, and neighbors are safer, the golf club has fewer headaches, and you get a good night's sleep. Back to Old Tom We know it's not possible to go back in time. We can't turn back the clock to 1895. But what about transporting Old Tom Morris to this time and place? What would he think about today's influence of the law on golf?. "I dunnae know 'bout any safety cones or buffers or gowf car rental agreements. These dinnae exist in my time," Old Tom might say with a steely steel·y adj. steel·i·er, steel·i·est 1. Made of steel. 2. Resembling steel, as in color or hardness: steely eyes. look. "I much prefer the way it used to be. Yer wantin trouble wit all this talk of liability and risk and the like. And who is this 'reasonable man' I keep hearing about? "Back in my days, ye played gowf for the love of the game and the comaraderie of a friendly match"(Old Tom now rising to stand). "It seems as though ye've taken all the fun out of gowf. I have to be honest, I dunnae care for it much." The wise old clubmaker might just have a point. Michael Kraker is an attorney based in St. Paul St. Paul as a missionary he fearlessly confronts the “perils of waters, of robbers, in the city, in the wilderness.” [N.T.: II Cor. 11:26] See : Bravery , MN. He represents and consults with golf clubs, golf course architects, and other members of the golf course industry. He has spoken and written on behalf of the St. Paul Travelers golf course risk management program and has provided expert witness testimony in legal cases involving errant golf shots. Mike can be reached at 651292-8001 or michael@golflawyer.com. |
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