THIS ARTICLE WAS PRINTED WITH PERMISSION FROM
David B. White, Esq., chair of the BWH Golf Group
“FORE”TUNATELY, A LITTLE PREPARATION GOES A LONG WAY IN
REDUCING LIABILITY FOR ERRANT GOLF BALLS.
While baseball is fast losing ground for Americans’ hearts, golf is gaining ground
quickly. As interest increases, so do liability concerns for course owners due to the
American public’s propensity to sue. This phenomenon can be frightening for golf
course owners whose business revolves around people using their property to hit small
balls long distances (often without conceptualizing their probable destination).
Any number of things can go wrong when a golfer steps up to the tee box, but
with a little pre-emptive planning, a course owner should have only slight worries of
liability for errant golf balls. The majority of suits arise from three groups of people: 1)
players and spectators on the course; 2) passersby; and 3) neighboring homeowners.
While these issues demand careful attention, adherence to a few simple rules regarding
each category can save the course owner from many headaches.
PLAYERS ON THE COURSE
Golf is a dangerous sport. Every court in the country recognizes that there are
inherent risks in the game. Nevertheless, that risk does not have to mean guaranteed
liability for the course owner.i Whenever a person is invited onto someone else’s land,
there is an increased potential for liability. Most states consider golf participants and
spectators to be a business invitees; a business invitee is one who is on the owner’s
premises for a purpose mutually beneficial to both parties (golfer pays the course owner
to play golf).ii This relationship increases the duty of care that the course proprietor owes
to the person on the property. The property must be reasonably safe, which requires the
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owner to minimize the risks of golfing without altering the nature of the sport.iii He
should use reasonable care in designing, maintaining, and policing the course to protect
from unreasonable risks of foreseeable harm.iv This could mean either safe design and
maintenance of the course or reasonable restriction of negligent golfers from the course.v
As a general rule, golfers do not create liability for themselves or the course when
they hit errant shots. Any person on the course is normally considered to have assumed
the risk inherent in golf since “it is a matter of common knowledge that the performance
of a golf ball when struck from a tee by a player using the appropriate club is completely
unpredictable.”vi An analysis of negligence in this instance hinges on the standard of care
imposed upon golfers and course owners.vii Course owners must exercise ordinary care,
and the doctrine of “primary assumption of risk” usually precludes an injured party from
recovering damages.viii
Under this doctrine, the course owner and the golfer are
determined to owe no duty to the injured party (golfers owe children a duty due to
children’s lower mental awareness; course owners must make sure children that are too
young are out of the danger of golf).ix Careless conduct of others is treated as an inherent
risk of the sport.x
The majority of states apply a standard of care that incorporates normal
negligence into the inherent risk of the sport; the duty rises as the sport’s risk decreases.xi
It is only when the conduct is intentional or approaches that of recklessness that a duty of
care arises during golf; this is determined by reference to rules and customs of golf.xii If a
person hits a shot pursuant to the rules, however bad or mishit, most states will find that
person or the course owner not liable for any injury the golfer causes to other participants
or spectators.xiii This rule extends to actions that are not “strictly” within the rules; any
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customary shot, such as a “mulligan” (unless unannounced) will be considered not
subject to liability. There is a caveat: a few states will look into ordinary negligence of a
golfer and impute liability without finding reckless or intentional conduct.xiv In those
states, a golfer who takes very little care in his shot, or swings without proper lookout
will potentially subject him or herself and the course owners to liability.
Additionally, a course owner may be subject to liability for negligent design of
the course. Typically, the course owner owes no duty to golf participants or spectators
due to the effect of primary assumption of risk. But, a duty arises when a course owner
fails to maintain or design a course in a reasonably safe condition.xv The duty is to
minimize risk without changing the nature of the game.xvi “Precautions in design and
location, in the form of play or in protective devices may be required as a safeguard
against injury.xvii One court has said that a course owner might have been negligent in
not updating scorecards to read the property distance.xviii In that case, a golfer hit his tee
shot because he believed the golfer in front to be a safe distance away. This was not the
case, and the golfer was hit.
Nevertheless, a course owner is not liable for physical harm to golfers by any
“activity or condition on the land whose danger is known or obvious to them, unless the
possessor should anticipate the harm despite such knowledge or obviousness.”xix A
course with fairways, which are closely placed, could be negligently designed if coupled
with other defects, but the Federal District Court of Maine stated that there should be no
liability merely for close fairways.xx The harm of closely situated fairways is one that is
apparent to most golfers as many courses are positioned within the confines of limited
space (within a golf development or within an urban setting). Design issues usually turn
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on the circumstances of a given situation, and a jury will usually make the determination
of whether a course owner is liable for negligent design.
Further, a course is potentially liable to licensees for errant golf balls. A licensee
is one who desires to be on the premises of another because of some personal unshared
benefit and is merely tolerated on the premises by the owner.xxi In Danaher v. Partridge
Creek Country Club, the Michigan Court of Appeals found a course owner liable for a
licensee’s injuries when he was struck by a golf ball while observing a pond on the
course.xxii The court concluded that a course proprietor is liable for injuries to licensees
if: 1) he knows or has reason to know of a condition, 2) should realize that it involves an
unreasonable risk of harm, 3) should expect that they will not discover or realize the
danger, 4) he fails to exercise reasonable care to make the condition safe or warn the
licensee of the condition and risk, and 5) the licensees do not know or have reason to
know of the condition and the risk involved. In a similar case, the Third Department of
the New York Supreme Court, Appellate Division found a course owner liable for
injuries a man sustained from a golf ball while in the course’s parking lot. The lot and
entrance road were situated in a parallel position to a tee and fairway. The court found
liability because the course owner had notice that balls landed on the parking lot from the
tee and the location and design of that hole arguably created an unreasonably dangerous
condition and increased the risk of injury to people in the lot.xxiii
PASSERSBY
Passersby pose a difficult dilemma since there are two situations that arise with
them. The most common situation is where a golf course is situated in a city park or golf
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development, through which roads run. The second is where a road or highway runs
adjacent to but, not through, a course.
When roads traverse a course or the park or development around it, it is usually
abundantly clear that golf is played there. One can see people walking with golf bags or
driving golf cars and hitting balls around. Here, course operators would only be liable for
an injury occurring on a nearby road if the design and maintenance of the course
presented an unreasonably dangerous risk to non-golfers.
However, even if a dangerous condition is present, a person with his head in the
sand who is injured cannot recover. In a case earlier this year, the Louisiana Supreme
Court stated that an open and obvious condition could not be unreasonably dangerous.xxiv
The court found that course operators owed no duty to a passerby who was struck in the
groin because he had notice of the possibility of danger (he visited the park previously
and warning signs were posted).xxv The court further found that the course owners could
not have foreseen the accident since this was the first injury in that location in 75 years of
operation.xxvi There will always be some risk associated with playing golf, and courts
will weigh the benefits versus the potential harm and cost of prevention. In the Louisiana
case, the public park with four million users and one incident in that location in 75 years
was determined to benefit more through its use as a golf course, and any cost of
preventive measures would far outweigh the burden of such an unforeseeable risk of
injury.xxvii
In the situation where a course is located adjacent to a public highway or road, the
liability question is slightly more questionable, and the scale has tended to tip toward
public safety in use of roads rather than the benefit of the property’s use. Since 1924, the
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courts have wrestled with the question of liability for injuries to innocent passersby.xxviii
Often they have conflicting opinions, but some general rules have emerged. A course
owner has a duty to take reasonable precautions for the protection of the traveling
public.xxix In 1950, a Delaware court held that a landowner only has to take those
precautions, which the inherent nature of the game and past history in that location make
necessary for the protection of the person lawfully using the highway.xxx That court
found a baseball park operator liable for nuisance when two or three balls per game
landed on the highway and in the case being decided, shattered a windshield injuring a
young woman.xxxi
In 1933, a lower level New York court found a course liable for nuisance and
negligence where a sliced ball injured a young girl riding in a car on an adjacent
highway.xxxii There, the hole was situated parallel to the highway so that a right-handed
golfer would hit the road if he sliced the ball.xxxiii The court noted that it was not
necessary that the course owner “should have notice of the particular method in which an
accident was to occur if the possibility of an accident was clear to the ordinary prudent
eye.”xxxiv
The probability of a right-handed golfer slicing the ball to the right is quite high;
correcting a slice is one of the main challenges of golf. In the 1933 case, the course
owners were found liable for negligent design of the course and nuisance.xxxv The design
of the course made a sliced ball reaching the road within the range of natural probability
and increased the risk of the game beyond that inherent in it.xxxvi And, the purpose of a
highway is travel; the court stated that if one interferes with that purpose, it is
nuisance.xxxvii The injured girl had the right to bodily security and the court believed she
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should recover when she did not know the course was there or that a game was in
progress.xxxviii
If the club should have known or created or helped create a dangerous
condition it would be liable for nuisance. The court stated that nuisance does not rest
upon the degree of care used, but on degree of danger existing even with best of care.xxxix
More recently, the New York Supreme Court determined that no liability rested in
a golfer for a ball injuring a person on a road, but the course owner may still have been
subject to liability.xl In that case, the ball traveled over or through a screen of trees, so
upon jury determination the course operator could be liable for nuisance and negligent
design in that instance.
NEIGHBORING HOMEOWNERS
In general, persons with homes adjacent to golf courses assume the risk that a ball
will enter their property. However, that general rule may be put aside in instances where
the seller misrepresented the extent to which errant balls would interfere with a
homeowners right to enjoy his/her property or where errant balls interfere with the
homeowners rights through the sheer magnitude of errant balls. An exception may also
be found in instances where negligent design causes an exorbitant amount of balls to
enter a homeowner’s property.
The majority of adjacent homeowner suits against courses involve nuisance
claims where the homeowner claims a course operator has permitted and unreasonable
use that has materially interfered with his or her physical comfort or use of the real estate.
Nuisance imports a continuous invasion of rights; therefore any action for nuisance
cannot typically be maintained for just one occurrence.xli A recent Indiana case involved
a condo that was situated in the crook of a dogleg left, which was in the path of golfer
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attempting to strategically “cut the corner.”xlii The court found it permissible for a jury to
determine whether a nuisance existed.
However, nuisance is a difficult claim for a homeowner to win because an
objective test is used to determine if the homeowner’s sensibilities should be offended.xliii
Also, if an adjacent homeowner lived in his or her house before the golf course
commenced operations, the standard he or she must meet is considerably lower because
the situation was imposed on him or her ex post facto. If, on the other hand, the
homeowner is part of a planned golf development or merely moved to a home bordering
a course, he or she will be held to have assumed the risk of errant balls entering the
property. The New York Supreme Court has said, “One who deliberately decides to
reside in the suburbs on very desirable lots adjoining golf clubs and thus receive the
social benefits and other not inconsiderable advantages of country club surroundings
must accept the occasional concomitant annoyances.”xliv In that case, the court agreed
with a prior case by stating that there was no nuisance where balls had broken a window,
hit one daughter, and narrowly missed another. The court determined that a separation of
20 to 30 feet between the property and the fairway and 45 foot high trees along the border
were sufficient to hold that the homeowners had accepted the risk and were indifferent to
the consequences.xlv Moreover, a negotiated contract with adjoining neighbors licensing
the golf course to permit balls onto the property can assist in alleviating any bad feelings
between neighbors, and, in planned golf developments, restrictive covenants and
easements for ball retrieval may be recorded prior to the sale of homes.
A second path that an adjacent homeowner might take regarding errant balls that
land on his or her property is a claim for negligent design, since a course owner has a
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duty not to increase unreasonably the risks of golf.xlvi Neighboring homeowners are not
entitled to the same protection as a traveler of a public highway.xlvii They typically
assume some measure of the risk and must endure some damage, annoyance, and
inconvenience by virtue of living in an organized community.xlviii
SO WHAT SHOULD THE COURSE OPERATOR DO?
The course operator should follow these simple rules to decrease the potential of
errant golf ball liability:
1. If the course is part of a golf development, or will be part of a golf development,
it is the duty of the course owner to provide a minima of residential comfort. This
includes designing the course to reduce errant balls that would land in
homeowner’s yards (It is understood that this can never be eliminated).
2. Any planned development should attempt to negotiate with current homeowners
and create easements and restrictive covenants, which are recorded in order to
reduce liability for errant balls and enable golfers to retrieve errant balls that land
on adjacent property.
3. Design your course with the assistance of expert golf designers. A Texas court
declined to find negligent design where the owner commissioned Jack Nicklaus to
plan its redesign initiative.xlix
4. Design your course with this fact in mind: golfers slice, hook, push and pull.
5. Any hazard (bunker, water hazard, tree) should attempt to force a golfer to “aim”
away from homes and roads.
6. In some cases, it may be necessary to install fencing throughout the course in
order to block foreseeable shots from being directed at players on other holes (if
closely situated). Remember, there no general liability to golfers on the course,
but if an unreasonable risk is created by the design of the course, liability may
follow.
7. Keep vigilant in locating and remedying potential hazards, and warn patrons of
potential or known hazards that have not been remedied.
8. Develop policies for determining those eligible to play (age, experience, etc.).
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9. Develop a policy and procedure for instances when a person files an errant ball.
This should include speaking with witnesses, speaking with the person that hit the
ball and speaking with the person injured or damaged by the ball.
10. Keep scorecard information current and accurate.
Finally, there can never be complete safety from liability, but the course owner
can find peace of mind. The course owner should remember to contact an attorney
familiar with golf and its many issues because each situation is unique and deserves
enthusiastic and personal consideration.
The Burns, White & Hickton Golf Group represents our clients in evaluating and
cost effectively assisting in the resolution of existing issues and avoidance of potential
obstacles. The BWH Golf Group’s dedicated and experienced professionals can provide
an in-depth understanding of the broad spectrum of golf course building, ownership and
management issues so as to position our clients to maximize their investments.
Contact David B. White, Esq., chair of the BWH Golf Group, with any golf
course
liability
questions
or
concerns.
Call:
(412)
394-2500
or
E-mail:
dbwhite@bwhllc.com
i
Heiden v. Cummings, 786 N.E.2d 240, 242 (Ill. App. Ct. 2003).
Danaher v. Partridge Creek Country Club, 323 N.W.2d 376 (Mich. Ct. App. 1981).
iii
Thompson v. McNeill, 559 N.E.2d 705, 708 (Ohio 1990).
iv
Bundschu v. Naffah, 768 N.E.2d 1215 (Ohio Ct. App. 2002).
v
See, e.g., Merritt v. Nickelson, 407 Mich. 544 (Mich. 1980).
vi
Gardner v. Heldman, 82 Ohio App. 1, 6 (Ohio App. 1948).
vii
Bundschu, 768 N.E.2d at 1215.
viii
Am. Golf Corp. v. Becker, 93 Cal. Rptr.2d 683 (Cal. 2000). Secondary assumption of risk permits an
injured party to recovery something, albeit a diminished recovery.
ix
Bundschu, 768 N.E.2d at 1221; Gyuriak v. Millice, 775 N.E.2d 391, 393 (Ind. Ct. App. 2002); Outlaw v.
Bituminous Insurance Company, 357 So.2d 1350 (La. App. Ct. 1978).
x
Bundschu, 768 N.E.2d at 1221.
ii
10
xi
Illinois applies ordinary negligence when the injured party is struck while in the zone of danger. In that
case, improper swing, poor appreciation of the field in front of the golfer, no warning shout, and
carelessness still would not find negligence when two holes were parallel to each other. Heiden, 786
N.E.2d 240.
xii
Thompson v. McNeill, 559 N.E.2d at 707.
xiii
Thompson, 559 N.E.2d at 707; Hennessey v. Pine, 694 A.2d 691 (R.I. 1997) (using antiquated hockey
case law to justify a higher threshold to generate assumption of risk where former case stated, “the average
person would not know of the danger of a puck.”)
xiv
As the law evolves quickly, consult an attorney to find out if your state applies an ordinary negligence
standard.
xv
Bundschu, 768 N.E.2d at 1221, 1222; Morgan v. Fuji Country U.S.A., Inc., 40 Cal Rptr.2d 249 (Cal.
1995)(quoting Knight v. Jewett, 11 Cal. Rpt.2d 2, 15 Cal. 1992).
xvi
Morgan, 40 Cal. Rptr.2d at 249.
xvii
Hawkes v. Catatonk Golf Club, Inc., 288 A.D.2d 528, 530 (3d Dept. 2001) (citing 2B Warren,
Negligence in the New York Courts: Golf and Operator of Course § 49.02[2], at 441 (4th ed.).
xviii
Cornell v. Langland, 440 N.E.2d 985 (Ill. App. Ct. 1982).
xix
Lemovitz v. Pine Ridge Realty, 887 F. Supp. 16, 18 (D. Maine 1995).
xx
Id. at 19 (stating that liability merely for fairways being close, without other factors of causation, seems
like negligence in the air).
xxi
Danaher, 323 N.W.2d at 279.
xxii
Id.
xxiii
Catatonk, 288 A.D.2d at 528.
xxiv
McGuire v. New Orleans City Park Improvement Assoc., 835 So.2d 416, 421 (La. 2003).
xxv
McGuire, 835 So.2d at 421.
xxvi
Id. at 422.
xxvii
Id.
xxviii
Gleason v. Hillcrest Golf Course, Inc., 148 Misc. 246 (N.Y. Mun. Ct. Queens 1933).
xxix
Salevan v. Wilmington Park, 72 A.2d 239 (Del. Super. Ct. 1950).
xxx
Id.
xxxi
Id.
xxxii
Gleason, 148 Misc. 246.
xxxiii
Id. at 248.
xxxiv
Id. at 249.
xxxv
Id. at 256.
xxxvi
Id. at 253, 254.
xxxvii
Id. at 254.
xxxviii
Id. at 250.
xxxix
Id. at 254.
xl
Rinaldo v. McGovern (NY 1991).
xli
Hennessey, 694 A.2d 691. Without a continuous invasion, there would still be liability for trespass for
one incursion, but only if the act was intentional.
xlii
Id.
xliii
Sans v. Ramsey Golf and Country Club, 141 A.2d 335, 339 (N.J. App. Div. 1958).
xliv
Nussbaum v. Lacopo, 27 N.Y.2d 311 (N.Y. 1970).
xlv
Id. at 317.
xlvi
Id. at 319.
xlvii
Id. at 316.
xlviii
Id. at 315.
xlix
Malouf v. Dallas Athletic Country Club, 837 S.W.2d 674 (Tex. App. 1992).
11