Tragic lessons in golf car liability: a case study.

The Facts: On April 27, 1997, John Post was playing golf at the Belmont Country Club in Belmont, MA. The club was undergoing construction at the time and the order of the holes had changed, so roping was used to guide golfers to the next hole. On his way to the 7th tee, John Post's golf car came into contact with the roping. One end of the roping was secured in the ground with a stake and the other end was tied to a tree. Post was struck in the head by the metal stake from the roping, and he died five days later from injuries sustained in the accident.

The Lawsuit: Later that year, the estate filed a wrongful death lawsuit against the Belmont Country Club. The lawsuit alleged that Belmont was negligent in its placement of the directional roping. The club filed a counterclaim against the estate based on an "indemnity provision" in the club handbook. The handbook, or "green book," as it was called, read as follows:

Rules and Regulations Related to Electric Carts

Each person using a cart does so at his/her own risk. Each person renting or driving a cart is responsible for any personal injury or property damage caused, including, without limitation, injury to him/herself and damage to the cart and agrees to indemnify the Club against all loss, claims or expenses resulting from use of said cart.

The Settlement: The Belmont Country Club settled the wrongful death lawsuit by the estate for $4.5 million. However, the settlement of the wrongful death lawsuit did not resolve the counterclaim by the club (based on the indemnity provision). This action remained open. The terms of the settlement stated that if the club were to be successful on the counterclaim, the club would recover from Mr. Post's homeowner's insurance policy. This policy included $5 million worth of coverage.

The Court's Decision: A Massachusetts trial court upheld the validity of the handbook's indemnity provision. The Massachusetts Court of Appeals agreed--the indemnity provision required its own members to indemnify (reimburse) the club for any loss, claims, or expenses resulting from use of the golf car. The inclusion of the indemnity language in the Belmont Country Club "green book" saved the club (and/or its insurance company) $4.5 million.

Three Lessons from Post v. Belmont County Club

Legal cases teach lawyers about the law. They also serve as excellent "case studies." They allow us to learn from other's mistakes, as well as other's wisdom.

Lesson #1--This Could Be You

If you operate a private golf course or country club, you stand a very good chance of having a golfer seriously injured on your watch. Odds are also very good that a serious injury will be connected to a golf car. Consider the statistics below:

Five Year Total of Golf-Related Injuries

       Golf-Total    Golf Car

2005     46,192       12,978
2004     48,062       12,157
2003     50,161       12,506
2002     49,565       10,663
2001     56,201       10,634

Source: The National Electronic Injury

Surveillance System (NEISS) of the U.S.
Consumer Product Safety Commission estimates
the total number of injuries associated with
certain types of products and activities.
These estimates are based on electronically
reported emergency room visits. The
classification of these injuries does not
indicate whether the injuries occurred on
or off a golf course.

The National Golf Foundation estimates that almost two-thirds of all rounds of golf are played with a golf car. There certainly doesn't seem to be any indication that the golf course industry's reliance on golf cars is diminishing. Golf cars are a consistent source of revenue for golf courses. They are also a consistent source of accidents, injuries, and lawsuits.

Lesson #2--Manage Golf Car Risk

As members of the golf industry and various professional associations, you've read the journal articles and heard the stories. You know what risks are out on your golf course.

Every hazard designed to create risk-reward for the golfer also creates risk for the golf car operator. Golf courses with dramatic topography are exhilarating to play, but they can be harrowing to negotiate in a golf car.

The challenge is finding the time, money, and commitment of resources to fix those dangers. Country club personnel need to look at every inch of their golf course in search of golf car risk. You can pretty much anticipate that wherever a golfer can walk, a golf car is sure to follow.

"Human behavior presents the greatest threat to safe golf car operation" said Dana Blose, risk control account consultant for Travelers Insurance National Accounts. He manages risk control services for their "Eagle 3" golf program and their Tournament Liability Program customers. He's assigned to the PGA TOUR, Inc. account and provides consultive risk control service to their TPC network.

Over the past year, Blose has reviewed many thousands of past claims associated with their golf insurance products. His conclusions are simple: "Complacency doesn't change behavior. To make a real reduction in golf car accidents, management must be fully committed to reducing or eliminating the hazards." The top 10 golf car-related risks are listed in Figure 1 on page 38.

Once these risks are identified, the private club should make every effort to protect their members, guests, and employees. The ideal scenario is to completely eliminate the risk.

Oftentimes, risk management efforts only require labor and materials, and do not force the club to dip into its budget for significant expenditures.

At some point you have to ask yourself: Is the safety of our members a priority? Certainly, a lot of time, money, and effort are invested in keeping members and guests comfortable and content. Wouldn't the same level of commitment be appropriate for their physical well-being? "One of the most haunting experiences is realizing you had the power to prevent an accident--after it occurs. This is an experience that tends to stick with you for a very long time," Blose said.

Lesson #3--Manage Golf Car Liability

After you have done everything reasonably possible to eliminate and reduce golf car risk, is there anything else you need to do? The answer is 'yes.' When appropriate, you should attempt to shift the cost of liability.

In golf course terms, liability can be transferred any number of ways. Warning signs shift responsibility to the golfer to avoid danger. Scorecard language and written policies and procedures also try to transfer liability for a particular risk. The most effective liability shifting mechanisms are contracts; they are written, they spell out each person's duties and obligations, and a signature binds their intentions.

Liability waivers are a subset of contracts specifically designed to address liability. They come by many names--waivers, releases, indemnity provisions, exculpatory clauses, hold harmless agreements, covenants not to sue. We will use the term "waivers" generically to refer to the entire group of liability-shifting clauses and contracts.

Waivers are neither underhanded nor unethical. They merely recognize a business reality--you cannot operate a business and provide the recreational services you do if you must assume ALL of the risk of liability. How many of you would maintain and operate your golf car fleet if you knew that, at any moment, you could be liable for a multi-million dollar personal injury or wrongful death lawsuit?

Courts evaluate waivers on a number of different grounds. It can vary from state to state, from contract to contract, and from situation to situation. There is no one set of criteria that every court uses to determine the enforceability of a waiver. Here is a list of some of the core principles courts use to evaluate the language of a waiver, release, or indemnity clause.

The Language Should be Simple and Clear. Golfers must understand what legal rights they are relinquishing. Waivers must be written in common language that is easily understood by the average reader. Avoid jargon and 'legalese.'

The Language Should be Specific. The waiver should cover the whos and whats of the situation--who is releasing whom from what?

The Language Should be Conspicuous. If the waiver or release language is contained within a larger document, the provision should not be hidden or in such small type that it is impossible to read. The placement and appearance of the language should make it obvious that it is important. Bold and all capital letters can be used to emphasize the importance of the provision.

The Waiver Should be Signed Voluntarily. Waivers are evaluated to determine whether they are entered into voluntarily and not under duress or pressure. A question of voluntariness arises when the provided service is considered a "necessity," such as medical treatment. This is generally not a problem for recreational activities such as golf. Give the golfer the time and opportunity to read the waiver, and if they choose not to accept the terms, they can walk away and choose not to play.

The Waiver or Release Should be Signed by an Adult. In order to be enforceable, the person signing the waiver must have the capacity to contract, i.e., must be old enough. Contracts signed by minors are generally "voidable" which means that they can later legally cancel the contract.

Waivers, releases, and indemnity clauses are not favored in the law. Courts generally interpret the language against the author of the agreement; however, this does not mean you should not try to use them to shift the liability of an accident. Courts recognize the right of individuals to contract with one another and set the terms of the agreement. As long as this is done in an open, obvious, and honest manner, courts can enforce the waiver and limit liability on the private club.

Golf course forms with waiver language include:

* Rental Agreements--Golf car, golf club, pull cart, and locker;

* Player Releases--Golfer, tournament, corporate event, charity event;

* Non-Player Releases--Walk-alongs, ride-alongs, volunteers;

* Special Events Contracts--Tournament, corporate event, charity event;

* Storage Agreements--Golf car, golf club;

* Junior Golf--Lesson, clinic, golf tournament;

* Membership Agreements; and

* Independent Contractor Agreements.

Private golf courses are presented with a unique problem. Under what circumstances is it advisable to transfer liability to members and their guests? It is a very delicate question. Each situation at your club will be different and should be analyzed in a thorough and thoughtful manner. It is not a callous business decision in the private club setting. You can take on none of the liability, some of the liability, or all of the liability. It may be a challenge to sort it all out, but at least you know you have options.

Conclusion

The Massachusetts Court of Appeals opinion in Post v. Belmont Country Club presented us with the tragic factual scenario on which we based our "case study." Unfortunately, this is so often the case in the law. But Post v. Belmont Country Club taught us a few lessons--about the cruelty of fate, about golf course risk, and about legal liability. Take them to heart: Think of John Post, think of the golf car accident, think of the Belmont Country Club, and think of the indemnity provision in their handbook. I am sure nobody at Belmont County Club ever conceived that they could be dealing with such a horrible tragedy. Be thankful that it wasn't you.

The Top 10 Golf Car-Related Risks:

1. Steep golf oar paths

2. Sharp curves on golf oar paths

3. Golf car paths near hazards

4. Golf car paths near roadways

5. Poor maintenance of golf car

6. Driver/passenger horseplay

7. Minors operating golf cars

8. Holes, rocks, and roots

9. Poorly signed directions or warnings

10. Lack of golf car operating instructions

List compiled after review of legal cases, jury verdicts, and news articles. This list is not in any particular order and does not represent all golf car-related risks.

By Mike Kraker, Attorney at Law

Mike Kraker is an attorney based in St. Paul, 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 golf course liability issues and has provided expert witness testimony in legal cases involving errant golf shots. He is also one of two founders of www.golfcourseforms.com. Mike can be reached at 651-292-8001 or [e-mail].

Club Management readers are entitled to a 20 percent discount on any order of golf course forms from golfcourse forms.com. Simply type 'CM' in the comments box as you select your forms. The discount will apply to your entire order.

Disclaimer: This article does not constitute legal advice. Please consult with an attorney to address your individual situation.