Golf car risk and liability management

By Mike Kraker | August 20, 2007

I remember it very clearly. We were playing Superior National Golf Course in Lutsen, Minn., up the scenic North Shore of Lake Superior. We were on a mini-golf vacation that brought us through Duluth, up to Giant’s Ridge in Biwabik and a final round at Superior National. It had been a very good escape from reality … so far.

I was in a golf car with Paul, a friendly giant with a smooth swing and an amiable nature. My game had turned south like the weather. Tired, wet and frustrated by the back nine, I started to poke the gentle giant. My comments were intended as humorous, contained some sarcasm and surely could have crossed the line.

Paul returned the not-so-witty banter with a playful shove. I tumbled from the moving golf car like a rag-doll. I remember thinking that he was very strong, and I was very light. In mid-roll, I saw what I had not expected — the second golf car in our group bearing down — the left front tire taking aim at my head. Our friend Tom slammed on the brakes and veered from the path of the human tumbleweed.

The golf car and my uninjured body came to rest at about the same time. We were all quite amazed at what had just occurred, and how fortunate I had been. If the golf carts were a bit closer, if I had rolled in a slightly different rotation or if Paul had really been mad, the outcome could have been tragically different.

I have read hundreds of golf car cases, jury verdicts and news articles, and what strikes me is that many of them have the same feel as my story. In a split second, everything changed. In a split second, a round of golf turned into an accident scene. In a split second, someone was seriously or fatally injured.

I rarely read these unfortunate and tragic stories and say, “I can’t figure out how that could have happened.”

If you’ve played enough golf, you’ve probably witnessed a close call, near miss or actual golf car accident. In my case it was foolishness. In other situations, it is inattentiveness, pre-occupation, momentary confusion or alcohol consumption that leads to the harmful consequences.

The reasonable person
When golf car accidents occur, in many situations, the golf course must shoulder some of the blame. The golf course may have created, failed to remedy or failed to locate a potentially dangerous situation. An accident occurs and someone is injured. Lawyers get involved, a lawsuit is filed and the litigation begins. In most instances, the case is going to revolve around whether the golf course was negligent. We all have a common sense about what negligence is, but the official Black’s Law Dictionary (8th edition 2004) definition is:

“The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. …”

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As the definition indicates, conduct is compared to that of a reasonably prudent person. Golf courses and all land owners and businesses have a duty to exercise reasonable care to prevent others from being injured. Reasonable care is the test of liability for negligence.

For practical purposes, what exactly is reasonable care?

The answer is not in the law books. It’s not going to be in this article, either. And if you ask me in person, I’m going to give you a frustratingly inexact response such as “it depends.” For in the law of negligence, there are very few black and white rules when it comes to reasonableness.

What is reasonable care to one jury in one state may be inadequate care to another jury in another state. Change one fact and the entire outcome is different. Ultimately, the jury decides what reasonable care is on a case by case basis.

Because reasonable care cannot be reduced to a definitive list of rights and wrongs, how does a golf course fulfill its duty of care? By demonstrating risk identification, risk management and liability management. If a jury is shown evidence that a golf course identified the risk, tried hard to manage it and documented its conduct, the chances are good that the jury will decide reasonable care was taken.

Risk identification
I surveyed hundreds of golf car accident cases, jury verdicts and news articles. The risks reported in those accidents generally fall into three categories — the golf car, the golf course, and golf car operation.

The Golf Car — Lawsuits involving golf car defects are generally filed against the golf car manufacturer, not the golf course. These cases are based on a theory of product liability, not negligence. If the golf course is a defendant in the case, the course’s duty to inspect, maintain and repair the golf car is the basis of the claim. A lion’s share of these cases alleges brake failure as the cause of the accident. Examples of other golf car deficiencies include the gas pedal, hand railing, steering mechanism, and warning sound for reverse.

The Golf Course— The greatest degree of golf car accident risk lies on the golf course itself. This is no surprise. Imagine how wide and varied parcels of land are for golf courses these days. Golf course owners and architects have certainly put the “risk” in “risk reward” golf holes. Examples from the cases, jury verdicts and news articles are so varied they can be sub-divided into three categories: striking objects; course design and maintenance; and failure to warn. (See “Potential golf car risks on the golf course” on left.)

To locate those risks, golf course managers, professionals and superintendents should drive the course — often. Drive it like a 25 handicap golfer. Tee shot is in the right rough. Second shot is in the left rough. (No offense intended to 25 handicap golfers.) It is those areas that contain tree stumps, protruding rocks and generally nasty surroundings — the no-man’s land of the common golfer — places where the golf course maintenance crew make a quick sweep and moves on to tee boxes, fairways and greens.

Golf Car Operation — The third category of golf car risk relates to operation of the golf car. Risks fall into the following categories:

Who — children as drivers, passengers or allowed near golf cars; golfers with known dangerous propensities; allowing three people in cart.

When — after dark.

Where — on sidewalks and roadways; in parking lots; golf course employees driving the paths in the opposite direction of the golfers.

How — instruction for golfers and employees on how to safely operate a golf car; general golf car safety warnings; golfers committing pranks.

Risk management
Bearing those risks in mind, what can a golf course do to manage the risks and fulfill its duty to exercise reasonable care in its golf car operations?

Golf Car — Golf cars are motor vehicles without safety protection. A golf car maintenance program should contain well-defined procedures for the inspection, preventive maintenance and repair of its golf car fleet. The program should be proactive, rather than merely repairing the broken-down carts. Golf cars should be regularly inspected for visual damage, test driven for operating problems and given an “under-the-hood” check by a mechanic. Preventive maintenance and necessary repairs should be carried out by trained mechanics. The golf car should not be released into service until a thorough review and test drive confirms that the problem has been solved.

The Golf Course — To retain market share, golf courses often focus on playability, pace of play and friendly customer service. Ask management personnel to step back and take a look at the golf course from a safety perspective. The staff members may have a whole new appreciation for the perils that lie under their noses. The risks are generally easy to spot and easy to fix. It just takes time, a little bit of money and dedicated effort. If the problem can’t be fixed, reduce as much of the risk as possible. If nothing can be done, warn the golfers to stay away and prevent them from getting too close.

Golf Car Operation — A golf course can regulate golf car-related behavior through rules, policies and procedures. Golf courses should take a very close look at what golfers do and don’t do, what they should and shouldn’t do, and where they go and shouldn’t go. Just as there are rules of the road for motor vehicles, there should be rules of the road for golf cars. Think those policies through and document them in writing. Also, train starters and rangers on enforcement.

Liability management
Liability management is a subset of risk management. Liability management seeks to address the potential liability that could naturally flow from the risk. It partially answers the questions: What happens if I get sued? Is there anything else that can protect me against liability?

Insurance — I’m preaching to the choir here. Insurance is a risk transfer or shifting mechanism. Insurance manages the ultimate financial responsibility should something bad happen. Certainly, every golf course and golf car fleet should be insured against liability stemming from golf car related accidents.

Contracts — Contracts are a liability management tool. Language requiring a person (or entity) to waive, release, hold harmless or indemnify the golf course can be enforceable. Golf car rental agreements should contain provisions related to responsibility for damage to the golf car as well as language that requires the golfer to release the golf course from liability.

Documentation — Document, document, document. A golf course may have a commitment to safety, but if it isn’t documented in writing, it is going to be pretty tough to convince the jury. Golf car inspection, maintenance, repairs, and return-to-service should be documented and stored for safekeeping. A golf course should keep a safety journal that tracks everything it has done in the name of safety. That will be evidence of reasonable care and make the insurance company’s job a whole lot easier.

Conclusion
There was nothing Superior National could have done to prevent the sequence of events that found me tumbling along the rough of the 14th hole. I can’t conceive of any viable legal argument that would justify an action against the golf course.

Now Paul and Tom, that’s another story. I can sit here and conceive of all kinds of miserable outcomes for them. As a matter of fact, I think I’m experiencing a little shoulder pain from being viciously catapulted out of that speeding golf car. Too bad the statute of limitations has run out.

Mike Kraker is an attorney based in St. Paul, Minn. He represents and consults with golf clubs, golf course architects and other members of the golf course industry. He has spoken and written on behalf of the Travelers golf course risk management program and has provided expert witness testimony in legal cases involving errant golf shots. Contact: 651-292-8001, e-mail: michael@golflawyer.com.

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Insurance Journal West August 20, 2007
August 20, 2007
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