December 2023 - Parks & Recreation - 33

LAW REVIEW
to non-golfers based upon the facts of
this case. " Moreover, in determining
whether a risk is unreasonable, the
court was required to " balance of the
intended benefit of the thing with its
potential for harm and the cost of
prevention. " Also, in determining
negligence, the court would consider
the " obviousness " and the " apparentness "
of the complained of condition:
If the facts
demonstrate that
the complained of condition was
obvious to all, the condition is not
unreasonably dangerous and the defendant
owes no duty to the plaintiff.
City Park conceded an applicable
legal duty to " discover any unreasonably
dangerous
condition,
correct it or warn others of the
condition. " That being said, in this
particular instance, City Park had
argued " it had no duty to protect
a non-golfer traveling the roads traversing
the golf course against injury
from an errant golf shot because
the risk of a non-golfer getting
struck by a golf ball was obvious,
reasonable, and minuscule. "
Further, City Park claimed it had
" acted with reasonable care under the
circumstances. " Assuming " a duty to
warn because of a hidden danger, "
City Park argued it had fulfilled that
duty by adequately warning entrants
to the park of possible golf activity,
erecting signs regarding golfing, including
" golfers only beyond this
point " and " golf cart crossings. " In
addition, City Park claimed it had
acted reasonably by " designing the
golf course so as to avoid the possibility
of injury. " Accordingly, City Park
argued " [P]laintiff failed to prove
that it acted unreasonably. "
Familiar Golf Course
In addressing the issue of potential
negligence liability in this particular
case, the state supreme court
34 Parks & Recreation | DECEMBER 2 0 2 3
would " consider whether these circumstances
presented an unreasonable
or foreseeable danger to the
non-golfer which City Park had a
duty to protect or warn against. " In
so doing, the state supreme court
held Plaintiff was " precluded from
recovery because of his familiarity
with the park and the golf course " :
We note that [P]laintiff testified
that he grew up near City Park,
lived 13 years of his adult life a
mile from City Park, had previously
jogged that route, knew that the
route traversed a golf course, and
observed golfers as he was jogging
that day. This non-golfer therefore
was warned and should have anticipated
encountering golf balls when
jogging near the vicinity of a golf
course because the risk of injury
was obvious and readily observable.
As a result, under the circumstances
of this case, the state supreme court
concluded City Park " owed no duty
to provide additional warnings. "
Further, " to find negligence " under
the applicable " duty-risk analysis, "
the court noted " a risk must be
both foreseeable and unreasonable " :
Ordinary care requires only that
precautions be taken against occurrences
that can and should be foreseen;
it does not require that one anticipate
unusual and improbable, though entirely
possible happenings....
[T]he obviousness and apparentness
of a potentially dangerous condition
are relevant factors to be considered....
[I]f the facts of a particular
case show that the risk is obvious to
all, then the risk is not unreasonably
dangerous and the public entity does
not owe a duty to the plaintiff.
Unreasonable Remedies
In this particular instance, the state
supreme court further found the
" remedies required by the court of
| PARK S ANDRECRE AT ION . OR G
appeals' ruling " would be " prohibitive
considering that this was an
isolated incident of injury. " These
remedies required by the appeals
court included " erecting barriers,
reconfiguring the golf course, or
closing off the street to non-golfers;
i.e., pedestrians or bicyclists. "
In the opinion of the state supreme
court, the erection of barriers
on the golf course would have
the following consequences:
[B]arriers would be required on
both sides of the road to effectively
protect any non-golfers from an
accidental injury;
high barriers
would substantially interfere with
the game of golf, and the cost of
the barriers would be unreasonable
considering that there has been no
reported accidental injury of this
nature since City Park has existed.
With regard to reconfiguring the
park, City Park's head golf professional
as well as the park's general
manager and superintendent provide
the following testimony regarding
the golf course layout over 75 years:
The designs have never been substantially
altered or reconfigured because
of any unreasonable danger to
a non-golfer, and the safety measures
are no different than at any other
public golf course in the country....
[T]he park is open 365 days per year
and every year the park attracts
approximately [14] million visitors
with no pedestrian injury reported.
Read the full article at parksand
recreation.org/PremisesLiabilityRequires
UnreasonablyDangerousCondition.
James C. Kozlowski, J.D., Ph.D., is an
Attorney and Emeritus Associate Professor
in the School of Sport, Recreation and
Tourism Management at George Mason
University (jkozlows@gmu.edu). Law review
articles archive (1982 to present): mason.
gmu.edu/~jkozlows/lawarts/artlist.htm.
http://www.parksandrecreation.org/PremisesLiabilityRequiresUnreasonablyDangerousCondition http://www.mason.gmu.edu/~jkozlows/lawarts/artlist.htm
December 2023 - Parks & Recreation

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