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Court Rules On Legal Rights Of Injured Golf Spectator

Posted by Golf Dispute Resolution
Golf Dispute Resolution
By way of background, I am an attorney who advises clients on how to avoid and resolve business disputes. I a...
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on Tuesday, 18 September 2012
in The Golf Business

Imagine you are standing on the first tee, when the starter directs you to drive, even though the group ahead appears to be within range. While you have concerns, you defer to the starter, hit it a ton and your drive ricochets off the skull of a golfer. Does the injured golfer have a claim, or is being struck by a driven ball part of the inherent risk of stepping foot on a golf course? If there is a viable claim, is it properly brought against you, the golfer who inflicted the injury? Against the starter, and the club that employed him? Or both?

The Wyoming Supreme Court has issued a groundbreaking decision that provides some guidance to these issues. The Wyoming case arose in the context of a tournament where the injury was suffered by a spectator. Here’s the scenario:

The 2006 Wyoming Open was being played at the Cheyenne Airport Golf Course. The first hole, a par four, was 320 yards and driveable by a number of the players. The galleries were small, consisting basically of players’ families and friends. Sixteen year old Josh Creel, who had begun his round on the back nine, had his parents in attendance.


While Creel’s group was putting, the next group of competitors, including Brett Veesart, were on the tee. The starter, concerned that play was running late, directed Veesart to tee off, after he and others in the group expressed their views that they could reach the green.  Veesart followed instructions, and his drive struck father Creel, who was standing just to the right of the green, in the head.

The ensuing lawsuit named multiple defendants, including Veesart, the starter, the company that owned the course and operated the tournament and the company’s owners.

All of the defendants asked the court to grant summary judgment, contending that applicable law shielded them from liability on these facts. In particular, the defendants invoked the Wyoming Recreation Safety Act, a statute that provides there is no legal duty to protect individuals from risks that are inherent in a sporting activity.

The lower court ruled in favor of the course owners and the starter, finding that Mr. Creel, by opting to attend the golf tournament, faced the inherent risk of being struck by a golf ball. However, as to the golfer, Mr. Veesart, the court found there were factual questions concerning whether his conduct had increased the inherent risk to Mr. Creel. In particular, the court found there were questions concerning the fact that he followed the starter’s order to tee off, without seeking input from a rules official, whether he could have avoided the injury had he yelled “Fore”, and whether Mr. Creel was visible to him from the tee box.

Under Wyoming law, the lower court’s denial of summary judgment in favor or Mr. Veesart was not appealable, meaning that a trial would first have to be held, with him having the right to appeal if the jury found against him.

However, the lower court’s grant of summary judgment in favor of the golf course operators and the starter was appealable. (Mr. Creel settled his claims with the starter pending the appeal.)

The Wyoming Supreme Court in a 3-2 vote, reversed the decision of the lower court. The two dissenting judges agreed with the lower court that a spectator setting foot on the golf course assumed the risks associated with being struck by a golf ball.

The majority, however, found the issue was not that clear, and that liability questions were fact based, requiring that a trial be held. According to the Court, “the question…is whether [the course owner] did anything to increase the risk that Mr. Creel would be hit by a golf ball. That is,did the conduct of [the starter, who was the owner's] agent, increase the risk beyond what everyone agrees would normally be an inherent risk.” As to this point, the Court found that a jury must resolve the question of whether the risk of injury was increased when the starter “instructed a player to tee off when golfers and spectators were on and around the green and the player expressed concern that he could hit the group ahead of him.”

All golfers immediately will recognize there is a substantial difference between the inherent danger of being struck by an offline shot and the risks posed by golfers hitting into the group ahead.

In all likelihood, there will be no trial, and the Supreme Court’s decision will lead to a settlement. However, whether argued in the context of settlement discussions or before a jury, the issue to be debated will be the relative responsibility to be assessed against the golfer, who followed the instruction of the starter to tee off, and the club, whose starter issued the directive. The lower court’s decision, which effectively was to place sole responsibility on the golfer, has been set aside by the Wyoming Supreme Court. According to the Supreme Court, the responsibility must be determined based on the facts and circumstances, not a blind principle of law.

So, the next time you see Phil Mickelson sign a hat and give it to an injured spectator, look closely to see if he’s added language releasing him from liability.

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Golfdisputeresolution.com is operated by Rob Harris an attorney and general counsel at general counsel to Clayton Holdings, LLC and is a contributing partner of the Hacker's Central Contributors Network.

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