Negligence if your ball hits someone off the course?

[sacm3bill]

The judge did not say the claim is valid. The judge detemined that could not say as a matter of law it was invaliid and that issue had to be determined by the jury.

I understand that. I meant "valid" in the sense that the judge allowed the case to continue on that issue, and that a jury was needed to decide it. My point is that a jury should not be needed to decide that "failure to properly execute a golf swing" can't possibly be defined as negligence. The fact that the judge *does* think that's the case, is a great example of what's wrong with the legal system.

Has it been established before the court that he was, in fact, aiming at the fairway? If not, that is something that needs to be determined in trial, not simply decided by the judge.

Agreed! I made that point myself, when I said earlier that

that is an acceptable point of contention as far as whether negligence was involved. "Failure to properly execute a golf swing" OTOH can't possibly be negligent.

There never seems to be any case where the logical path of implied risk would automatically quash such a suit before it gets started.

Amen brother.

[zeg]

Laws like this which are written to put the onus of guilt on the golfer until proven otherwise are part to problem with the US legal system (and apparently elsewhere too). It seems to have gotten to the point where you can be sued for just about anything any more.

How do you propose to resolve this without a trial? Someone made a claim that a golfer acted negligently, it needs to be evaluated. The way that's done here is via trial, where both sides are permitted to present evidence that supports their side. Also, there's no onus on the golfer to prove anything unless the plaintiff is able to present evidence that he's acted negligently. If she has evidence of that, he needs to refute it. That's just the way it is, I don't see any way around it.

Also, remember that courts don't sue people, plaintiffs do. It's not like there's a magic switch you can flip that will only let cases that will win go through, you have to try the case to determine facts, unless there's flat out no case. I don't see that this is an example of such a case.

I understand that. I meant "valid" in the sense that the judge allowed the case to continue on that issue, and that a jury was needed to decide it. My point is that a jury should not be needed to decide that "failure to properly execute a golf swing" can't possibly be defined as negligence. The fact that the judge *does* think that's the case, is a great example of what's wrong with the legal system.

I disagree that it's as obvious as you believe. Legal language is similar to but decidedly not equivalent to ordinary English. Words and phrases have specific meanings. "Properly" to a golfer means good technique. To a court it may (and probably does) mean something different---specifically, it could well include all the steps necessary to make that swing safe safe. In other words, if you're drunk off your ass, aiming at a house, and not bothering to check that no one is standing in range, legally speaking you may have failed to properly execute a swing even if you nail it on the screws with perfect form...

I don't think it's reasonable to read a news article, guess at the details and meaning of the legal language, and come to a damning conclusion about the legal system. It seems we agree that, other than the details of how the claims are phrased, there's the possibility of actual liability in a general case similar to that here.

[keb]

The debate in this thread shows that reasonable minds can differ and that the case should be resolved by the jury.

[Yukari]

I don't understand why people are upset about this. According to the news article...

" Demo sued in 2007, contending Kinney was negligent by failing to aim properly, failing to properly execute the swing of his golf club and failing to warn her the ball was approaching. She contends she suffers migraine headaches as a result.

Elsner said she couldn't seek damages for failure to warn because someone in the Kinney party did yell "fore." But he said the case on the other two claims could continue. "

The judge allowed only two claims to proceed as highlighted above. It seems reasonably to me to allow a panel of jury to determine whether Kinney was aiming properly or execute the swing properly. These are matter of facts not law. A judge cannot dismiss a case if it involves determination of facts unless there is no other possibility (but this is not one of those cases).

Anyone who thinks the judge should have dismissed the entire case should rethink how dangerous that legal system will be. The judge should only make decisions on the law NOT on the facts. It is the jury that decides the facts. And frankly, I like that system.

No matter how much you complain about the US justice system, it is the best in the world. I have been to many other countries and saw how the laws are handled. Some countries are near anarchy (e.g., Mexico where the drug lords seem to run most of the country) and some countries the money rules (like some Asian countries where you can "settle" by paying the family restitution if you kill someone--either accidentally or even on purpose!!! That is a ridiculous law and absolutely mind boggling.

For what it is worth, the US legal system is by far the best in the world. Granted there are a lot more lawsuits in the US, but it comes with a territory of having a great legal system where one's voice can be heard and not suppressed.

[B Keller]

No matter how much you complain about the US justice system, it is the best in the world.

This is sad but true. The first time I had jury duty I made comments that are entirely true that caused the judge to feel it necessary to mail me a personal letter defending the system.

[Fourputt]

How do you propose to resolve this without a trial? Someone made a claim that a golfer acted negligently, it needs to be evaluated. The way that's done here is via trial, where both sides are permitted to present evidence that supports their side. Also, there's no onus on the golfer to prove anything unless the plaintiff is able to present evidence that he's acted negligently. If she has evidence of that, he needs to refute it. That's just the way it is, I don't see any way around it.

I don't understand why people are upset about this. According to the news article...

These are things that should be determinable by investigation, not by a jury trial. How would you determine what is proper aiming anyway? I can aim left and still hit the ball to the right just by not closing the clubface at impact. If every slicer out there is at risk of a lawsuit for improper aiming, then they better close about 3/4 of the golf courses in the US. Errant shots are an integral part of playing golf. If you are at risk of being sued any time you hit a shot off line, then the law is wrong, not the game.

Even so, my problem is with the issue of implied risk. If the judge can't make a ruling on that issue alone then there is something wrong with the law. If the home was there before the course was built, then the homeowner may have a case with the course management, and possibly in part with the golfer. If the course was there first, or if the development was a planned golf course community, then the homeowner shouldn't have a leg to stand on. He knew what he was doing when he bought or built a house in harm's way. He should be required to have his own hazard insurance or pay the penalty for such omission if an incident like this is a possibility. I have no sympathy for anyone who feels that he has to put blame anywhere but squarely on his own shoulders for his own stupidity or negligence. (And yes, it's stupid to ignore the fact that there is a definite risk to owing a home right on a golf course.)

[sacm3bill]

Anyone who thinks the judge should have dismissed the entire case should rethink how dangerous that legal system will be...

Well, I for one have never made such an assertion (my only complaint has been about the "failing to execute the swing properly" aspect).

However I will make it now. This case should have been immediately thrown out. The legal system is FLAWED. It may very well be the best in the world, but that doesn't change the fact that frivolous lawsuits are a serious burden on the judicial system. And no matter how you slice it, this is a frivolous lawsuit. You accept an implied risk living next to a golf course. Common sense tells you that, and the law should be based on common sense first and foremost. We've gotten soft as a nation, and one aspect of that is this "It's always someone else's fault" attitude exemplified by the existence of this case. - Bill

[PS90]

I would wonder though if the same premis applies where a person fires a shot from a firearm (rifle/handgun/or bow), and the shooter is responsible for his/her projectile until it has stopped. Also that the shooter is responsible for any damages caused by the projectile, whether within the line of sight or not, until all energy has been dispersed. Which really means that you could be shooting your favorite .22 rifle on a legal range, have a "freak" ricochet, and the bullet travels outside of the range to a neighboring property causing someone bodily harm. The shooter is still liable. As BS as it sounds, it would seem the same would apply here. You are using an implement - a golf club - to apply force to a projectile, for which the golfer is responsible for until it energy had dissipated enough to be deemed safe. The club can be aimed (similar to a gun), a shot can be taken at will (the gun fired), and the golf course would be the "range" in this case since O.B. is designated.

I don't know that this is universally true, considering the gun range analogy. I would have to do some digging to find the reference, but I know of at least one case in which this occurred in WA state, and the range was found liable, due to inadequate facilities, rather than the shooter liable for being a crappy shot.

I that case were extended to a golf course, then it would make the course liable for the people it lets hit golf balls on its course. Just sayin'

[PS90]

Incredible that a golf course is not obligated to carry liability insurance for damages occured by non-negligent players. The golf course shoud pay the lady for whatever damages the player of that course caused. The golf course shoudl then go after the player if negligence is believed to be the cause of the mishap.

I agree that the lady with a neighboring house should be assuming risk, but I also completely agree with you - in that, if you pay someone to perform a sanctioned event or sport on their land, then that person/company that you paid should assume all liability for uncontrolled/errant shots, since that is the nature of golf.

Again, I don't have a legal reference, unless I look it up, but I know that cars and/or even people have been hit by foul balls or home runs many times outside of baseball parks. But I have never heard of the batter being held responsible for the ball. It is an assumed risk to be around the ballpark, and at worst, the baseball field assumes responsibility.

[PS90]

The judge allowed only two claims to proceed as highlighted above. It seems reasonably to me to allow a panel of jury to determine whether Kinney was aiming properly or execute the swing properly. These are matter of facts not law. A judge cannot dismiss a case if it involves determination of facts unless there is no other possibility (but this is not one of those cases).

\

I agree that our legal system is probably as good as it gets. That whole problem, and the reason I would be worried about this, if I was the golfer, is your first sentence. If it goes to trial, then a jury gets to decide. It's very possible that the majority of the members of the jury know NOTHING about golf. How are they supposed to make an informed decision? This happened in my profession just recently - not a jury decision, but a bunch of law makers outlawed horse slaughter, because "animal rights activists" thought it would be a good idea. Now, these lawmakers who made the decision know nothing about the horse industry, and what they didn't take into account are all the horses out there now that aren't worth anything, and are being let go in the forest because no one wants to pay for their feed. So they starve to death - a much worse death than being processed for meat. My point - maybe bad shots in golf happen all the time, but is the jury (who is possibly completely ignorant concerning golf)- going to know that?

[sacm3bill]

My point - maybe bad shots in golf happen all the time, but is the jury (who is possibly completely ignorant concerning golf)- going to know that?

Great point, and I think best case scenario is: A) The defendant's attorney does a good job of explaining it (despite the plaintiff's attorney no doubt trying to confuse the issue), and B) an intelligent and reasonable jury. But even if that's the case and justice prevails, the problem is the time and expense required to come to a conclusion that should have been obvious from the beginning.

[spitz20]

if you own a house near a golf course you assume the risk. What a dumb B****

[zeg]

These are things that should be determinable by investigation, not by a jury trial. How would you determine what is proper aiming anyway? I can aim left and still hit the ball to the right just by not closing the clubface at impact.

Ok, who foots the bill for the investigation? This is a civil case so there's no police involvement. If the plaintiff pays, that creates an incentive for investigators to be biased in favor of the plaintiff---after all, she's going to want to find a sympathetic investigator. Likewise if the defendant does. In our system, the court provides an impartial venue for both sides to present their evidence. She can find someone to investigate if she wants, and the defendant is free to refute that evidence.

As for proper aiming, not being reckless is all that's required. It probably also requires enough skill that you're capable of hitting a shot safely. That doesn't mean you don't slice, but if you hit a 90 degree banana slice on every drive, I'm not sure I'd have a problem with your being responsible to limit your play to holes where that's not along a row of houses... But that's not what we're talking about here.

Even so, my problem is with the issue of implied risk. If the judge can't make a ruling on that issue alone then there is something wrong with the law. If the home was there before the course was built, then the homeowner may have a case with the course management, and possibly in part with the golfer. If the course was there first, or if the development was a planned golf course community, then the homeowner shouldn't have a leg to stand on.

Again, there are facts here that would need to be established (when was what constructed, when was the garden installed, what was known to the buyer at the time she bought the house, has the course been modified in a way that affects the risk, etc, etc, etc), and the degree of risk acceptance needs to be established. The law is not wrong to require the trial, it is simply that the law amounts to "if x, y, and z, then q" The trial is the place you settle x, y, and z.

[Fourputt]

Ok, who foots the bill for the investigation? This is a civil case so there's no police involvement. If the plaintiff pays, that creates an incentive for investigators to be biased in favor of the plaintiff---after all, she's going to want to find a sympathetic investigator. Likewise if the defendant does. In our system, the court provides an impartial venue for both sides to present their evidence. She can find someone to investigate if she wants, and the defendant is free to refute that evidence.

We are never going to agree with this. All the judge at the prelim has to do is ask a couple of questions. Was the course there, or planned when the homeowner purchased the house? Is there anything about the situation that could possibly be seen as negligence on the part of the player such as hitting a shag ball off the course while waiting on a tee box, etc., or was he simply playing golf as the game is intended to be played? If such laws are written sensibly, then those questions should provide all the information the judge needs to determine grounds for a suit and no need to waste the court time over it. As mentioned above, the average jury is probably not going to know enough about the subject to say one way or the other... the judge is more qualified to rule on it than most juries. Again, if the law isn't that clear then there is something wrong with the law.

I'm not saying that there aren't times when a lawsuit is indicated. I just don't see this as a legitimate case as presented by the OP.

[zeg]

Yeah, doesn't sound like we'll agree. I will just say (in case it wasn't clear) that I DO agree that this case is absurd, assuming that the guy was playing properly and just made a bad shot. But I think the target of the frustration should be the plaintiff, not the court. As I have probably made excessively clear, I think the court and the judge are just doing their jobs here. When it does go to trial, I hope it is resolved quickly and, if it's been expensive, the guy is able to countersue for his costs.

[jpalermo]

And may I add. What possible permanent impairment can there be from getting hit w/ a golf ball? I hear all this talk of people getting seriously injured.

I got hit by a golf ball once while I was putting on the 18th green, the 10th tee box was 30 yards away and a guy pull shanked one right into my ribs. Dropped like a Jenga tower being played by a old cpl with Alzheimers. Two cracked ribs and a bruise the size of a basketball. Happened so fast they didnt have time to yell fore. I didn't sue anyone.

[B Keller]

Yeah, doesn't sound like we'll agree. I will just say (in case it wasn't clear) that I DO agree that this case is absurd, assuming that the guy was playing properly and just made a bad shot. But I think the target of the frustration should be the plaintiff, not the court. As I have probably made excessively clear, I think the court and the judge are just doing their jobs here. When it does go to trial, I hope it is resolved quickly and, if it's been expensive, the guy is able to countersue for his costs.

I don't want to, but I have to agree with this. I think the suit is nonsense, but I think the judge had to allow it as he did. And hopefully he can countersue for his expenses.

Lawfully, he may be able to counter for more than that, but if he were to do that I would look at him like I do the woman suing him in the first place.

[dbuck]

I think the case on its face is inappropriate, but understand the judge allowing it to procede because a determination of fact is necessary. I am not an attorney, and appreciate the comments of those that are.

Personally, I feel the only way the plaintiff should be entitled to damages would be to prove that the golfer deliberately tried to hit her or her property. In most states, civil cases are based on preponderance of evidence, so the standard would be lower than a criminal case. The plaintiff would not have to prove beyond reasonable doubt, just that the evidence suggests that more likely than not the act was deliberate. If the act was not deliberate, then a person who decides to live on a golf course should reasonably assume that golfers will hit balls and that some of them will fall on her property. If alcohol is legal and there are no laws against playing drunk, then they should also assume drunk golfers would hit balls there as well. I am assuming that the course was there before the house, or at least before the plaintiff bought the house.

I don't know all the facts nor do I know Illinois law, so while I disagree with the case unless there was malicious intent, I can understand why the judge might have to let the case procede.