Imagine you are on hole number seven, riding in a golf car up the fairway towards the green, a place where you’ve been hundreds of times over the years. Seemingly out of nowhere an incoming ball strikes you in the eye. Your first concern is your pain and the extent to which you’ve been injured (trust me, I’ve been there twice). Your second thought may be wondering where the ball came from (in this case someone on a nearby hole duck-hooked his tee shot way off the intended course). And your third thought may be about who is at fault, because the instinct is strong to place blame.
This is a short-hand description of what happened in the summer of 2020 at Cazenovia Golf Club, a century-old, nine-hole club in upstate New York. The unfortunate situation occurred during the club’s Member-Member tournament, at which Justin Hubbard hit an errant tee shot on hole number three, and David Katleski was the unlucky victim of the mis-hit. Subsequent to the accident, Mr. Katleski sued Mr. Hubbard, sued his playing partner (Hubbard’s father) and sued Cazenovia Golf Club. The suit against the Hubbards was dropped, leaving the club to defend itself. As the case has made its way through the New York judicial system, the National Golf Course Owners Association submitted a critical amicus brief to the court on behalf of the defendant. NGCOA’s two primary concerns were to ensure the club had auxiliary support to win their case, and to prevent a dangerous precedent that could challenge the “assumption of risk” doctrine, which applies to so many sport and recreation situations.
On March 12, I traveled to Binghamton to bear witness to the final oral arguments between Katleski and Cazenovia in the New York State Court of Appeals, the highest court in the state. The legal proceedings alone were fascinating to watch, including seven judges rapid-firing a series of questions to both attorneys, who only had fifteen minutes each. All the questions from the judges were reasonable and cracking-smart, but it was obvious who understood golf and who didn’t. And understanding the inherent nature of the game, and the risks associated with stepping onto the property, are going to be key to settling this conflict.
Center to the plaintiff’s argument is whether or not the third tee box, which has a back set of tees added about fifteen years ago, presents a risk that is above-and-beyond what would be considered reasonable and inherent to the game. As most readers know, many shots in golf involve lines-of-sight that are fully or partially obscured. From the third tee box in question, you really cannot see the seventh hole that seems to be about 35 degrees to the left of the straightaway third fairway (your intended path). I stood at that tee box on March 11, and as a golfer for forty years, did not intuitively feel there was anything unreasonable about the fact that I couldn’t see the seventh hole. Longtime members of Cazenovia, like Mr. Katleski, would know about the third tee box as he hits his own approach shot to the seventh green. As golfers, we rely on our own special awareness wherever we are on the course and know that a flying projectile could come from just about anywhere. Knowing the risks, we play anyway.
That being said, some key questions before the panel of judges are: what safety assessment was conducted around 2010 when the back tees were added to number three? Was it or should it have been required, and if so, under what authority? Are there industry standards for course owners to assess risk anytime an adjustment is made to a golf hole (the answer is no, but that didn’t stop plaintiff’s counsel from trying to argue there are)? What change on a course could cause a new risk to exist, which is not generally inherent to the game? What special adjustments might there be for “classic courses” (say, those over one hundred years old) to make to accommodate the modernization of golf equipment? The ball may fly faster and farther than in 1925, but duck-hooks surely happened with persimmon equipment. Did the fact that this was a tournament format somehow increase risk (no, but plaintiff’s counsel tried arguing that it may have)?
If Cazenovia prevails, and it may take weeks or months to know, then the case is closed. If Katleski prevails, the case moves to a jury trial. If a jury trial is to happen, the door opens for a potential financial settlement. Either way, NGCOA will remain engaged and will keep the industry updated. In the end, we industry practitioners know that safety is paramount to the business of golf. NGCOA is working to make sure logic and reason also remain paramount.
Jay Karen, CAE
Chief Executive Officer