Cathy Devlin is a high powered attorney. Litigation Department Chair at Saul Ewing LLP, she’s also a proficient single-digit handicap golfer and for the 20+ years I’ve known her has had a keen interest in golf course safety issues. Compared with other sports, golf isn’t something most people associate with high safety risk. There’s no contact and while injuries (back, shoulder, hand, tendonitis, etc.) do occur, risks at golf facilities do exist and create a variety of hazards not often considered by the typical golfer or club member.
Several years ago, my friend Mike Hurdzan authored the wonderful book Golf & Law, Safety, Security & Risk Management for Golf Courses, which I profiled in this blog post. There are firms specializing in safety consulting for golf facilities like Obbi Solutions, an Ireland based safety consulting firm.
Obbi president Gareth Macklin says: “We have encountered a very wide variety of safety issues but generally, that Managers are struggling to keep on top of the compliance issues that they have. Even the very best of people we have seen, with systems currently in place have indicated they are 95% on top of 95% of their stuff, for 95% of their people and don’t necessarily know where the other 5% ranks. Additionally, there is significant time spent in audit processes and looking at information to find the 3, 4, 5% of problems which means they are effectively wasting 95% of their time looking at things that are correct.” The following are just some of the areas where safety risks exist at golf and club facilities:
- Kitchen
- Fire Alarm/Detection
- Course Maintenance & Machinery
- Errant golf shots
- Steep slopes
- Tree Management
- Swimming Pools
- Health & Well-Being of employees
- Water features and wildlife
Macklin emphasized that compliance and training are essential to maintaining a high level of safety in a club operation. They assist clubs in digitizing and circulating policies and procedures for safe operations.
Since reading the Hurdzan book mentioned above, I look at every golf facility differently now, recognizing risks not previously noticed. The legal risks related to these safety issues are significant so I asked Devlin to share some thoughts with me on those risks which could land golf or club facility management in court.
To the list of risks above, she adds: Issues related to chemical use; theft and criminal activity; wildlife encounters; social host liability (alcohol).
I asked Devlin about the risk to a club of injury to a golfer from a lightning strike. She responded: A golf course owner/operator owes a duty of care to patrons, which is a legal responsibility to take reasonable steps to ensure the safety of patrons and protect them from foreseeable risks of participating in the sport on the course. Given this, a golf course owner/operator can be held liable to a person injured by a lightning strike on a golf course, if it can be proven that the golf course failed to take reasonable precautions to protect against injury from lightning strikes. Fulfilling the duty of care may include establishing safety measures such as lightning detection/warning systems, together with protocols to respond to same effectively that are implemented consistently – i.e. sirens/horns and/or other warnings transmitted to carts, suspension of play and course evacuation procedures, lightning shelters, etc. Prominent signage about the risks of lightning strikes and about course safety policies for same also helps meet the duty of care. Devlin suggested that the line can be drawn between assumption of risk by the golfer and responsibility of the golf facility often by a determination of whether the hazard was “open and obvious”. If “open & obvious” the golf facility may not be obligated to warn the golfer.
Who’s liable is one of the trickier issues. The golfer or the club? Devlin points out that while the golfer does assume some level of risk, which varies from state to state, the club is also responsible for providing a reasonably safe environment and implement precautions against foreseeable risks. Code compliance is part of this responsibility and failure to comply can result in negligence on the part of the operator. Devlin emphasized that in a courtroom situation, every aspect of the event in question that caused injury will be explored and exposed, hence the need for each course to do a safety analysis.
One common issue is errant shots damaging adjacent property. Devlin commented as follows: The claims by the neighboring property owner here would typically arise from golf shots leaving the golf course property, and would be accusations of either nuisance and/or negligence; several competing concepts are in play. To establish that a golf course owner/operator is causing a nuisance, it must be proven that the course is causing an “unreasonable and substantial interference with use and enjoyment of your property.” That said, there is a legal doctrine called “coming to the nuisance,” which says that a person who moves to a location where a nuisance already exists essentially assumes the risk of potential injury from residing there, and may be limited or foreclosed from holding the source of the nuisance liable. The application of these concepts can of course vary from state to state. To establish that a golf course owner/operator is negligent, it must be proven that the course failed to comply with its duty of care to neighboring property owners, which in this context, is a duty to conduct their operations in a manner that is reasonably safe for neighbors, and does not cause them unreasonable risk of injury or property damage. This duty of care might be met by installing nets, landscaping or other barriers to minimize risk of injury to neighbors from errant shots; reconfiguring tee boxes, fairways, rough, greens, bunkers, water bodies and/or trees and landscaping to minimize risks of balls leaving the golf course property; and/or prominent signage warning players about potential responsibility for damage or injury caused by errant shots.
Over the years, I’ve noticed that while some golf courses require signing a waiver of liability for golf cart use, rarely do they require a waiver for the numerous other risks involved. Devlin says: Written waivers of liability are often ruled unenforceable for various reasons, and will not usually, standing alone, insulate a golf course owner/operator from liability. Equally or more important is the golf course owner/operator’s ability to prove that it satisfied its duty of care under the circumstances by designing, operating and maintaining the course in a reasonably safe manner, and by taking reasonable steps to protect patrons from known risks. Compliance with any requirements imposed by insurers in order to maintain coverage is also, as you note, a best practice.
Insurance, both property/casualty and liability are a growing problem for golf courses. I’ve observed annual premiums well into the mid 6 digits for some clubs, especially those in areas considered high risk for severe weather. Many clubs are under-insured given the recent increases in construction costs. This will be covered in a future post. For now, I encourage all clubs to consider a risk review and invite your discussion on same.
Devlin suggests retention of legal counsel and golf consultant familiar with golf course issues to visit and tour the site as if they were golfers, and develop a checklist of risks to be addressed at that club. They can be categorized as “green light”, “yellow light” & “red light” issues and suggested solutions from mitigation to simply establishing signage notifying the golfer of the risks. Given the potential impact on insurance costs, bad publicity and ultimately the club’s bottom line, this seems to be good advice and well worth the investment.