Risk or reward?
Jason Straka
What is the most important aspect of the golf course architecture business? Some might suggest environmental sensitivity, others playing strategy, but our firm believes it is safety, liability and risk management.
Yes, that's right. Safety, liability and risk management are our number one priorities when designing golf courses. This may not sound glamorous but, given our litigious North American society and multi-million dollar settlements on seemingly trivial lawsuits, it is becoming increasingly more important for our clients and us to put safety above all else. If you are planning on working in the US, or are even considering it, it would be well worth your time to explore our issues of safety, liability and risk management.
Only around eight per cent of the US population plays golf. Of those, approximately 25 per cent play three times or less per year (National Golf Foundation data). In other words, when a jury is selected for a lawsuit there is a 92- 94 per cent chance that a juror will not play golf. It is also likely that many of those selected jurors view golf as an elitist, white male game that is played by the wealthy, with money to spare. This is why insurers do not deem golf lawsuits to be very winnable. Because most golf lawsuits are civil suits, called torts, the jury ruling does not have to be unanimous, as in a criminal trial. A simple majority can find you guilty, or liable, which is why many insurance companies would rather settle the case out of court for a negotiated amount of money than risk going to court, losing and then pay what could be an astronomical sum of money.
In addition to the issues of juries and insurers, consider that historically a substantive defence against a lawsuit was if a plaintiff contributed to their own loss. This is no longer the case. Now, there is the basis for comparative negligence, which means that even though a plaintiff contributed to their loss, the defendant may still be found at fault. For example, a recent lawsuit involved a lady member of a private club playing her home course. She hit her shot close to a decorative stone wall which was there due to the architectural design. She contemplated the risks of trying to hit her shot over it and proceeded. Her ball ended up hitting the wall, ricocheting back and striking her in the eye, which resulted in lost vision. She sued for her loss. The jury ended up finding the lady's comparative negligence was about 75 per cent to blame, so the golf course was 25 per cent at fault and had to pay 25 per cent of the settlement. Even though she took the risk and was at fault, it was some fault, not all fault. The jury concluded the club did not properly warn her by posting a sign on or near the wall warning her of such risks. She was awarded a percentage of her asking amount based on the club's percentage of concluded fault. I am sure this was still a hefty sum of money. Such are the risks of stone walls on a US golf course.
There are a lot more safety issues regarding golf design than stone walls, certainly more than can be covered here. What is important is to realise there are several legal concepts to consider. First, there are no design standards for golf courses. This is important because in a legal realm the court will first look to what is generally accepted practice. They'll rely on industry leaders and their written publications, and other court cases, to determine reasonable care. In other words, what would another competent professional's reasonable care be if they were in the same, or similar, situation? They'll also only look to issues here in the United States and not abroad, which means a design company may have to alter certain design guidelines and practices accepted abroad but not here. The lesson is to study and research the basics of legal liability and risk management in the US and alter your professional practices accordingly.
Secondly, you should be sensitive to recognising and predicting possible risks. As a design professional you have a legal obligation to protect yourself, employees, employer, clients, golfers, maintenance personnel, golf course adjacent users and even trespassers. There are literally thousands of risks and safety issues on the golf course ranging from contract liability to errant golf balls and from cart paths to environmental liabilities. Having the ability to identify and deal with these risks up front is of major importance. It has been shown in our courts that ignorance is not bliss, nor is it an excuse to get dismissed from a lawsuit. The number of seemingly outrageous lawsuits is stunning, yet they persist and continue to grow.
Lastly, educate yourself on how to protect against a lawsuit. This means being able to cite other examples and procedures that have effectively been defended in court. For example, one method that is well documented is the notion of transferring risk. Take the example of the lady and the stone wall described above.What if there was a warning listed on the scorecard, in the locker room and placed in plain view on or near the wall, that playing near it is hazardous, and to attempt to play over it should be done so at one's own risk? We see that as a silly thing to warn someone about but nonetheless it is likely that the trial outcome would have been different had the golf course taken reasonable care to warn golfers about the wall. The lady may have been shown to be at total fault, not comparative fault. Signage can be advantageous in transferring risk in many instances, but it is only one small safeguard. To take this one step further, one also must consider appropriate signage with graphic symbols for non-readers and secondary language. For example, it may be appropriate for signage in Florida to contain graphic symbols, English and Spanish due to the high population percentage of Spanish-speaking people.
Having the knowledge of your obligations in legal liability and risk management in design, the ability to identify and predict risk and protect yourself against those risks, may enhance your chances of a more successful project in North America.
Jason Straka is a golf course architect with Hurdzan/Fry. He has served as an expert witness, but is not a lawyer.
This article first appeared in issue 4 of Golf Course Architecture, published in April 2006.