What is the liability of a golf course owner or operator for injuries suffered from the playing of golf?

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1 Categories: Liability, Golf Liability of the Golf Course Owner or Operator What is the liability of a golf course owner or operator for injuries suffered from the playing of golf? Perhaps the best place to begin is to understand the general rule that a business owner owes a duty to an invitee to exercise ordinary care for the invitee s safety and protection. Saying this another way, a possessor of land, such as a golf course operator or owner, who holds it open to the public is under a duty to take reasonable action to protect those who enter the property in response to the possessor's invitation. This duty includes the duty to warn of latent or concealed defects of which the owner knows or should reasonably have knowledge of. This does not mean that a business owner is strictly liable as an insurer of the safety of those who enter the property but it does establish that there is a duty to exercise reasonable care to protect those who are invited onto the property and use it against unreasonable risks of foreseeable harm. This rule generally applies to an invitee. An invitee is generally either a public invitee or a business invitee. A public invitee is a person, who as a member of the public, is invited to enter and remain on property for a purpose for which the property was held open to the public. This would be, for example, a user or player of golf, who as a member of the public, is invited onto a golf course to play. Hand in hand with this public invitee is a business visitor who is a person invited to enter or remain on land for the purpose directly or indirectly related with business dealings with the possessor of the land. Again, this can be seen as including the user or player of golf coming onto a golf course.

2 In the specific context of playing golf, however, the general rules of the duty owed to an invitee as may play on a golf course are interwoven with the legal rules that conditions or conduct that otherwise might be seen as dangerous are sometimes a foundational part of the game of golf. Those things that are an inherent risk of golf, like being hit by a golf ball on a driving range, and as might be considered part of the risk of golf do not translate into a failure of a golf course owner or operator to provide an invitee ordinary care for safety and protection. This interwoven situation, is that if an injury is sustained as a result of an inherent risk of the game of golf then that injured person is not likely to have a successful claim against the golf course owner or operator. The owner or operator is generally seen as not having a duty to eliminate those risks inherent to the playing of golf itself. But, the golf course owner or operator is to provide a reasonably safe golf course, even accounting for the inherent risks of the game. This duty requires the golf course owner to minimize the risk that players will be hit by golf balls, for example, by the way the various tees, fairways and greens are aligned or separated. In certain cases, because of the alignment or separation of the tees, fairways and/or greens on a golf course, the golf course owner may also have a duty to provide protection for players from being hit with golf balls where the greatest danger exists and where such an occurrence is reasonably to be expected. However, even with this, if the risk is inherent in the game of golf, the fact that the golf course owner had a feasible means to address the danger does not impose a duty to do so. The duty is not created because safer materials might be available to remedy the inherent risk. The standards in the industry define the nature of the game of golf.

3 Let's put all this into some specific examples. If a golfer hits an errant golf ball causing damage to another on the golf course, this would probably not result in liability against the participant hitting the golf ball. As discussed in the previous article, this would be an inherent risk of the game of golf. However, if it is determined that the area in which the golf ball was hit is a dangerous place due to the design of the golf course, including for example design of the tees or the removal of trees, then this might support a finding that the golf course owner or operator breached a duty of care owed to the injured party. Specifically, for example, the layout of the cart paths may suggest a dangerous condition. If, for example, a cart path loops behind a building such that the golf player hitting a golf ball would not be able to see other golfers on the path, then, it is possible that this routing of the cart path behind the building could be shown to be negligent design. Thus, one injured by a golf ball struck by another player who did not see the player coming along the cart path and out from behind such a building might have a successful claim against the golf course owner or operator. What about golf course injuries sustained as a result of golf ball deflection off of wooden yardage markers? When yardage markers are viewed as an integral part of the game of golf and as a standard in the industry, the rules above stated (i.e. the standard of the industry may control), would make it less likely that and golf shot deflected off a wooden yardage marker injuring someone on the golf course would result in liability for the golf course owner or operator.

4 Another example, closely related to the negligent design of the golf course, where the failure to warn by a golf course owner may come into play, is in the case of erroneous scorecards or the failure to correct erroneous yardage indicated on the fairway or scorecard. The golf course owner or operator should reasonably foresee that golf players will rely on the yardage indicated on the scorecard in determining whether it is safe to hit the ball. Relying on the distance indicated on the scorecard would be standard in the play of golf and is generally foreseeable. As a result of that, a player on the course injured because another player hits a golf ball, thinking all is clear based on the scorecard yardage, may have a claim against the golf course owner or operator who knew or should have known that the distance on the scorecard was erroneous and in reality less then stated. In many cases where defective design of the golf course is alleged, the question of liability will come down to the standards of the game of golf established through expert witness testimony. It is essential for actions based upon negligent design of a golf course to be supported by expert witness testimony. Qualification of that expert, whether the expert is suggested to be a professional designer, professional golfer or merely a member of the relevant golf course for many years who is active in the playing of golf for even more years, would be dependent upon the particular jurisdiction and trial court judge. Liability of the golf course owner for negligent design as discussed above can extend not only to those playing golf but also to adjacent property owners. The same rules would generally be applicable. But the rules of nuisance, as well, may be relevant. Some courts will ask Are golf balls occasionally entering the adjacent property or are they continuous? Did the adjacent property owner come to the existing claimed nuisance of the golf course operations? If so, it may be less likely that the adjacent property owner will be able successfully to assert a claim for a nuisance, particularly if the adjacent property owner seeking to make a claim can only show occasional entry of errant golf balls and had knowledge of the possibility or probability of golf balls being hit onto their property from a preexisting golf course. This post is a follow up to Liability of the Golfer. Jim Scavo is nationally recognized for his representation of clients involved in the resort, recreational property, real estate and club and travel industry. His clients include developers, and managers/clubs associated with golf course communities and country clubs, multilocation vacation clubs, fractional developments, destination and travel clubs, cruise club/use offerings, condominiums, residential second homes and subdivisions. He is well known for his origination of the legal work on many innovative resort and club products offered in the United States, some of which have grown to be industry leaders. regulations. Scavo offers his clients a full range of legal services including assistance in club operational, governance and management issues, covenant and rule enforcement, project development, financing and creation of club and resort plan documents, workouts and providing legal advice in respect to compliance with state and federal marketing Scavo received his law degree from St. John s University in New York in 1976 where he was a member and editor of the St. John s Law Review. Jim is a frequent speaker and author in respect to topics regarding resorts and clubs. He is a Trustee of ARDA, a routine instructor for Continuing Legal Education for attorneys, the author of

5 many law reviews and trade journal articles regarding resorts, clubs and regulated real estate, a past national trustee for CAI and past author of the Ask the Attorney Column for the Savannah Morning News.