The Pellucid Perspective - April 2012 - (Page 15)

DAMAGE LIABILITY Fore, right! Who’s to blame? Courts and facts — not signage — determine golfer liability By Jim Dunlap M ost of us have been there, or close to it. Reaching back for an extra few yards to cut the dogleg or clear the last sand trap, instead we produce a boomerang slice or a screaming hook, headed with unerring accuracy that we wish our short game featured for a homeowner’s plate glass window or, worst case scenario, a child playing in the back yard. There’s going to be hell to pay for this – the question is, who’s going to pay it? Most golfers, having been advised by on-course signage or warnings posted on the scorecard that they are responsible for any damage caused by their errant shots to neighboring homes or persons, will either (a.) advise the homeowner that they did the damage and are willing to pay for it, or (b.) continue playing (quickly) and hope that nobody was home or witnessed the incident. There is, however, a third option, and in a great many cases, it will stand up in court if it comes to that. As a general rule (and the attorneys I’ve talked with have urged me to emphasize the “general” part), assuming that the golf course preceded the adjoining homes and the golfer is not acting irresponsibly or irrationally, the principal of assumed liability on the part of the homeowner who purchased a golf course lot carries the day. It is not a bad idea for golf course owners to post signs urging players to be considerate of course neighbors and their property, but blatantly stating that golfers are responsible for any damage they cause with errant shots is disingenuous at best in many cases. Michael Kraker, a St. Paul, Minn.-based attorney who operates the golflawyer.com web site, said “Sometimes I find it comical that golf courses are trying to make a legal statement about who’s at fault,” referring to the afore-mentioned signs, scorecard warnings or other postings. He is, however, in favor of owners recognizing that a problem area exists on (or just off ) the course and doing whatever they can to alert golfers to the potential danger, saying “My general approach is don’t stick your head in the sand, but some owners think if they put up a sign, they’re afraid they’ll be acknowledging there’s a problem and establishing liability on their part.” If the homeowner knowingly purchased a home on the existing golf course (and paid a lot premium for the privilege as a rule), most courts have ruled that to constitute an assumption of risk and absolved the golfer from damages. The assumption of risk doctrine is even more hacker-friendly in cases of injury to another player from an errant shot, with the majority of court decisions ruling that the injured player assumed the risk of injury by participating in a sport where hard objects are being struck by players of varying skill levels. The patron judicial saint of duffers is Justice Craig J. Wright of the Ohio Supreme Court who wrote, in an injury suit: “Shanking the ball is a foreseeable occurrence in the game of golf. The same is true for hooking, slicing, pushing, or pulling a golf shot. We [the court] would stress that ‘[I]t is well known that not every shot played by a golfer goes to the point where he intends it to go. If such were the case, every player would be perfect and the whole pleasure of the sport would be lost. It is common knowledge, at least among players, that many bad shots must result although every stroke is delivered with the best possible intention and without any negligence whatsoever.” As any golf course owner will unhappily tell you, the litany of lawsuits that can derive from events or situations on a golf course is extensive. Even within the somewhat limited area of errant shot damage, Connecticut-based attorney Robert Harris, who posts a steady stream of golf-related legal issues on his Golf Dispute Resolution Internet chat board, urged caution in anticipating court rulings in the field. “There is no national statute that applies state to state,” Harris said of golf ball damage cases. “Overshadowing all this is that the facts will determine the outcome. In my experience, courts will look at the facts, and the law often has enough ambiguity or malleability to justify the eventual decision. They will typically get to the result that makes the most sense.” Kraker agreed, saying, “From my view of cases that have come across my desk, this [errant shot damage] is one of the harder ones to establish a standard rule. It typically depends on the facts of the case, and there’s no clear pattern on how the courts will come down.” The basic rule for course owners with homes adjoining their course would seem to be: recognize that a problem with errant shots may exist, take whatever steps that a court might deem reasonable to mitigate the problem … and make sure you have n enough insurance. As any golf course owner will unhappily tell you, the litany of lawsuits that can derive from events or situations on a golf course is extensive. www.PellucidcorP.com The Pellucid PersPecTive 15 http://www.golflawyer.com http://WWW.PELLUCIDCORP.COM

Table of Contents for the Digital Edition of The Pellucid Perspective - April 2012

The Pellucid Perspective - April 2012
Contents
Golf associations seeking new ways to stem membership decline
Are you the master of your domain?
Military base redevelopment puts golf in limbo
iPad + cloud = simpler, cheaper golf operating system?
March weather impact: Nature’s baffling benevolence continues!
Fore, right! Who’s to blame?
Detroit market holding its own
Course purchase opportunities abounding on Florida’s ‘First Coast’
An uncluttered mind yields Masterful performance

The Pellucid Perspective - April 2012