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The Book of Exodus recounts the plagues inflicted upon ancient Egypt as encouragement to release the Israelites from slavery. I picture Pharaoh sitting at his desk, with staff bringing him news about the daily disaster.
While usually not required to contend with frogs, locusts, boils or rivers running red with blood, insurance claims adjustors for golf courses must feel equally besieged. Their daily work is filled with unfortunate stories about errant golf balls, overturned and runaway golf carts, slippery steps, hidden holes, territorial alligators, lightning strikes and the occasional unprovoked assault.
Sure, non-golfers smirk at the thought of a slacks wearing game being characterized as a risky sport. However, court dockets are sufficiently filled with lawsuits emanating from golf course misfortune that I confidently proclaim three truisms that country clubs, golf course owners, management personnel, officers and directors should keep in mind:
- Bad things will happen.
- People will get hurt.
- Claims will be asserted.
Though inevitable, claims obviously can and should be managed. There are a number of things that clubs can do to minimize the number and magnitude of injuries, and to reduce the risk of legal liability and exposure to substantial damages.
Preventing Injuries and Legal Liability. As far as legal liability is concerned, the question of greatest concern to a judge or jury is whether a club or its personnel caused an injury due to acts or omissions that were not reasonable under the circumstances. However, there are protocols that a prudent club will put in place that will reduce the chance of injury, and, if an injury occurs, will increase the likelihood that a club will be deemed to have acted reasonably.
1.Obtain input from experts. Every course should include within its operating budget funds allocated to appropriate consultants. While many choose to think about safety reviews in the context of courses being built or redesigned, established courses must also recognize the importance of periodic review. Have trees been checked for fungus or insects that induce rotting and falling branches? What about the risk of golf ball injuries attributable to misaligned / mislocated tee boxes or the absence of buffers between adjacent holes? Are there procedures for online monitoring of approaching thunderstorms with meaningful warning systems for golfers? Is the course subject to trespassers from crime ridden areas? And how big do the alligators have to be before they are considered a threat to humans?
Clubs rely on their superintendent and staff to address safety issues. However, certain issues warrant input from consultants with detailed expertise. Obtaining such input—and acting on it—can serve to prevent injuries, and to provide legal protection if an injury occurs.
2.Establish and follow written procedures. A golf club should develop a set of written procedures that pertain to operational safety. For example, the golf cart maintenance schedule and protocol should be carefully determined, written and followed; the club should have written safety requirements for those retrieving golf balls from the range, or raking traps when the course is in play; and staff should be aware of written guidelines regarding when and how to designate excavation areas on the course.
Written procedures serve two important purposes. First, they enable a club to operate consistently, regardless of who is on the payroll at any given time. Second, developing written procedures requires a club to focus on risk assessment. The act of reviewing operational activities will result in safety issues being considered and addressed.
3.Follow up on important events. Established protocols evolve as circumstances change. On a daily basis, staff may encounter circumstances that warrant consideration of changes to safety procedures. Someone may notice that a neighboring family has installed an outdoor swing set adjacent to “slicer’s heaven,” warranting consideration by the club of the installation of netting to protect children’s safety. A golfer may inform the pro shop that she was stung by a bee, triggering a thought that someone should check for a hornet’s nest before a more susceptible golfer suffers anaphylactic shock. A club should aspire to document and follow up on these daily occurrences.
4.Instill a culture of compliance. Developing procedures is unhelpful if club personnel fail to follow them. Indeed, from a legal liability standpoint, the club that fails to follow its own procedures will be doubly damned: injuries will be likelier to occur, and the club will be confronted with the fact that it anticipated such an event by adopting procedures to prevent its occurrence. To ensure that its procedures do not simply gather dust, clubs should have periodic employee evaluations which include review of compliance with safety procedures, and the imposition of appropriate discipline (on staff and managers) if procedures are not followed.
Limiting Financial Exposure. Reasonableness, like beauty, is in the eyes of the beholder. No matter how diligent a club may be in anticipating and preventing risk, a judge or jury may determine that the club did not act reasonably. Consequently, a prudent club, will act to minimize financial exposure to it, its personnel and its officers and directors.
5.Establish the appropriate organizational structure. State statutes typically enable the creation of entities such as corporations or limited liability companies that the law treats as distinct from the individuals that own them and from subsidiary or affiliated entities. While almost always, ownership of a golf course will be in the name of a legal entity, it may be appropriate to consider establishing multiple legal entities. For example, food and beverage operations may be an appropriate candidate for separation, thereby serving to protect them from risks that are unique to golf operations.
6.Management, officers and directors should have indemnification agreements with the club. In addition to suing the club, a claimant often will name as defendants officers and/or directors of the club. Before agreeing to serve in such capacities, officers and directors should ensure that the club provides indemnification from all costs and liabilities incurred in the performance of their job responsibilities.
7.Waivers. Skiers are familiar with the liability waivers that the ski resorts extract in exchange for the right to descend their mountains. Courts do not always uphold these waivers, and it seems a bit silly that golf is so hazardous that it requires a signed waiver before permitting a golfer to approach the first tee. When it comes to carts, however, a club should consider including language in the rental documentation that references the inherent dangers and that purports to absolve the club of liability. Get good legal advice. Courses are different. Clubs are different. State legal rules are different. Spend a few dollars to have an attorney advise you as to the particular issues you face, and how best to minimize your exposure.
8.Get good legal advice. Courses are different. Clubs are different. State legal rules are different. Spend a few dollars to have an attorney advise you as to the particular issues you face, and how best to minimize your exposure.
9.Insure, insure, insure. We began this article with a sympathetic nod to the plight of the insurance adjustor confronted with a variety of golf-related claims. We conclude this article with the admonition that, no matter how much a club will try to prevent injury and protect its assets, the risk of civil liability will always exist. Preventative actions should serve to keep insurance premiums more modest, but they certainly do not obviate the need to maintain adequate coverage. A club should take advantage of the expertise of an insurance agent who is knowledgeable about the industry.
About the author
Rob Harris is an attorney, arbitrator and mediator who represents and advises business clients regarding contractual and other relationship matters that are critical to their operations. A fuller biography of Mr. Harris is available at www.levettrockwood.com and he can be reached at rharris@levettrockwood.com or (203) 222-3122 .
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