In Part I of this series, we navigated the fairway of liability between golfers, looking at how your actions on the course can impact both your safety and your legal standing. In Part II, we will take a closer look at what happens when the course itself is the source of the risk.

Whether it is dangerous walkways, a tree branch that comes crashing down, or a storm rolling in without warning, golf course operators—public and private—need to be on alert to prevent injuries. Let’s tee off and see how course conditions could land you in the rough, legally speaking.

Premises Liability, Tree & Vegetation Hazards

Golf facilities can be large and consist of varying degrees of amenities. Other than the course itself, there are parking lots, walkways, cart paths, clubhouses, pro shops, driving ranges, practice areas, bathrooms, locker rooms, restaurants, bars, and banquet areas. As a commercial business operation, legal duties relevant to maintaining the premises in a safe condition attach to those responsible for the ownership, management, and day-to-day operation of the facility.

It is well established that “business owners owe to invitees a duty of reasonable or due care to provide a safe environment for doing that which is in the scope of the invitation.” Stelluti v. Casapenn Enterprises, LLC, 408 N.J. Super. 435, 446 (App. Div. 2009). This duty of care “requires a business owner to discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe.” Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003). This duty is imposed on business owners because they are “in the best position to control the risk of harm” to their invitees. Hojnowski v. Vans Skate Park, 187 N.J. 323, 335 (2006). If a business owner breaches this owed duty of care and there is actual and proximate causation with damages, negligence can attach. See Polzo v. City. Of Essex, 196 N.J. 569, 584 (2008).

Golf courses can be maintained and operated in a variety of different ways. The owner of the facility can take on complete control, or they can contract with outside companies to run and maintain the day-to-day aspects of the course’s operation and management, i.e., restaurant caterers, property managers, security personnel, janitorial staff, and landscapers. Regardless of who is in control of the different facets of the golf course, anything deemed unsafe on or at the property that directly leads to an invitee getting injured can attach liability to those responsible. Common hazards include:

• Deteriorating, unsafe conditions, and tripping hazards in any interior or exterior walkway, sidewalk, staircase, parking lot (including potholes), cart path, foot bridge, and walking path to and from tee boxes and greens;
• Inadequate lighting in interior and exterior walking and parking areas;
• Slipping hazards in any interior facility location (walkway, staircase, bathroom, locker room, restaurant/bar) and exterior walkway and parking areas, including snow and ice-related conditions;
• The underage service of alcohol to patrons and the over service of patrons while visibly intoxicated at golf course bars, restaurants, and on-the-course food-and-beverage carts, halfway houses, snack shacks, or comfort stations;
• Inadequate security of facility grounds if located in a high-crime-affected area;
• Dangerous, unanticipated hazards on the course (such as unsafe sprinkler heads or hoses; unattended or improperly blocked off holes, excavations or ground disruptions on fairways, greens, and walking areas; loose or missing railings on staircases; and broken or loose landscaping bricks, blocks, risers, or railroad ties); and
• Failing to warn of any hazards, including golf cart paths that contain deteriorating terrain, unsafe turns, or improper or missing signage (such as “Stop” signs and oncoming traffic warnings for crossing public roadways and “Golf Cart Crossing” signs for motor vehicles).

Meanwhile, an often overlooked aspect of golf course liability involves negligent tree and vegetation maintenance. Most golf courses have an extensive variety of trees and vegetation that border fairways and greens. Over the course of 18 holes, the individual fairways and greens are usually adjacent to or near one another, many of which share a tree line. It should be common knowledge to course operators that errant shots that land off-fairway or off-green frequently require patrons to walk in wooded or tree-lined areas in search of their golf balls. This is reasonably expected to occur every day on a golf course.

With negligent vegetation maintenance, these areas may contain dead trees, partially fallen limbs, hazardous rooting systems, and branches imminent to falling. Dead trees begin to rot from the inside out, causing brittle wood and weak roots. A dead tree can fall unexpectedly or have weakened branches that can easily break off. This is especially true after inclement weather and high wind events. Falling trees and branches can cause significant injuries to golfers searching for their balls in these wooded vegetation areas. A golfer fixated on finding his ball in an off-fairway area is usually not focused above for any potentially dangerous branches or tree limbs. Without proper tree and vegetation policies, regular inspections, maintenance, trimming, and removal of dead or diseased trees and vegetation, a true risk of injury lies off the fairway’s beaten path.

Meanwhile, attorneys representing clients injured on a golf course due to negligent tree and vegetation management should act fast in gaining access to the incident location and preserving evidence (the subject tree and branches) before it is removed. An emergent application to the Court may be warranted. The prompt hiring of a professional certified arborist to photograph, retain branches, and perform tests to identify the type of tree, age, and condition (death or disease) will help assist your eventual argument that the fallen tree or branch was not an Act of God and instead was a longstanding hazard that resulted from negligent vegetation management.

Weather-Related Events

Every golfer has been there before: you are on the 16th hole, two left to play, you are having a decent round, but then—seemingly out of nowhere—the wind picks up, gray clouds begin to cover the sky, and a soft drizzle quickly turns to steady rain with a flash of lightning in the distance. Weather events can be distressing, especially when you are standing in the middle of a fairway holding a steel-shafted golf club. For golf course operators, when it comes to inclement weather, if they actively take steps to protect golfers, they are now tasked with the duty of implementing proper safety precautions. Their negligence in failing to do so could lead to liability attaching.

In Maussner v. Atlantic City Country Club, Inc., 299 N.J. Super. 535 (App. Div. 1997), the court was tasked with determining whether golf course operators owe a duty of care to their patrons to protect them from lightning strikes. While golfing at the defendant’s course, the plaintiff and the rest of his foursome saw a lightning bolt in the distance, causing them to walk along the fairway towards the clubhouse for shelter. The course had no man-made shelters along the route. While walking, the plaintiff put his umbrella up to help block the rain. Soon thereafter, he was struck by a lightning bolt.

Suit followed, and the defendant golf course eventually filed for summary judgment, arguing that the plaintiff failed to meet its burden of establishing that: (1) the defendant created or maintained a dangerous condition on the course and (2) a foreseeable risk was the proximate cause of his injuries. Discovery revealed that the golf course monitored the weather and had a lightning storm evacuation plan in place—which, although disputed, was described on a poster hung in the locker room—that required the club pro and pro shop manager to drive golf carts around the course to locate golfers and have them vacate the course during inclement weather events.

On the morning of the incident, the defendant golf course consulted with the National Weather Service and learned that inclement weather was predicted, but no lightning warnings were issued. At all times relevant, the defendant did not have any equipment for detecting lightning, nor had they installed any audible warning devices or erected any shelters on the course. The plaintiff retained a recreation and sports consultant expert who opined that the course was unsafe for golfers because it failed to have lightning detection equipment; did not properly use weather reporting services; failed to have shelters along the course; failed to have an effective evaluation plan; and failed to adequately warn golfers of the hazards of lightning.

Regarding an assessment of whether a duty of reasonable care was owed, the court balanced several factors, including the nature of the attendant risk, the opportunity to exercise care, and the public interest. The court’s assessment included the following powerful reasoning:

“A particular lightning strike is clearly unpredictable. There is no way that present technology can predict whether a bolt of lightning will strike a tree, a bush, a rock, or any of four golfers standing near them. Similarly, the path of a particular tornado or the eye of a hurricane may be difficult to predict. In the past these storms were truly acts of God; they came out of nowhere and unleashed tremendous destructive powers. Modern technology has rendered these storms more predictable. We now know, for example, when conditions are favorable for tornadoes, and we know by satellite imagery and computer modeling when a hurricane will strike land and the probability that it will hit at a particular place. These once unforeseeable forces of nature must now be considered, at least to a great extent, foreseeable. As noted by plaintiff’s expert…there is now technology available that makes lightning’s presence more predictable. This being the case, the presence of lightning is less an act of God and more a predictable destructive force. Thus, ‘the nature of the attendant risk’ is that it’s presence is predictable, if not its individual manifestations. Similarly, ‘the opportunity and ability to exercise care’ in the case of lightning is now greater than it has been in the past. A golf course can warn golfers of what to do in the presence of lightning, can warn golfers of the approach of lightning by using signals, and can create and maintain lightning-proof shelters. A golf course can now also detect the existence of lightning by using some of the new technology…Lastly, the ‘public interest in the proposed solution’ is clear. The great popularity of golf makes the reasonable protection of golfers an important public interest. There are now more people walking around on open plains carrying bags of steel shafts than there have ever been.”

The court ultimately held that “when a golf course has taken steps to protect golfers from lightning strikes, it owes the golfers a duty of reasonable care to implement its safety precautions properly.” The court did not find that golf courses have an absolute duty to protect their patrons from lightning strikes, as this greater duty may be cost-prohibitive for all golf courses to adopt safety precautions. The court explained the consequences of its holding as follows:

“All golf courses have a duty to post a sign that details what, if any, safety procedures are being utilized by the golf course to protect its patrons from lightning. If a particular golf course uses no safety precautions, its sign must inform golfers that they play at their own risk and that no safety procedures are being utilized to protect golfers from lightning strikes. If, however, a golf course chooses to utilize a particular safety feature, it owes a duty of reasonable care to its patrons to utilize it correctly…for example, that if a golf course builds shelters, it must build lightning-proof shelters; if a golf course has an evacuation plan, the evacuation plan must be reasonable and must be posted; if a golf course uses a siren or horn system, the golfers must be able to hear it and must know what the signals mean; and if the golf course uses a weather forecasting system, it must use one that is reasonable under the circumstances.”

The court ultimately determined that summary judgment was not proper as there were triable issues as to whether the defendant golf course properly implemented its safety procedures. Therefore, for golf course operators, if you choose to implement inclement weather procedures—which appear to be in the public interest— it is crucial to make certain you are meeting your safety burden.

Public Entity-Owned Golf Courses

Throughout New Jersey, there are countless golf courses that are owned and or managed by public entity counties, towns, and municipalities. When injuries occur due to an alleged dangerous condition on a public entity-owned or operated golf course, the New Jersey Tort Claims Act is implicated. Pursuant to N.J.S.A. 59:4-1(a), a “dangerous condition” is a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”

In accordance with N.J.S.A. 59:4-2, to impose liability upon a public entity-owned golf course where an alleged dangerous condition existed, a plaintiff must satisfy five requirements: (1) a dangerous condition existed at the time of the injury; (2) the plaintiff’s injury was proximately caused by the dangerous condition; (3) that the dangerous condition created a reasonable foreseeable risk of the kind of injury suffered; (4) the public entity created the dangerous condition or had actual or constructive notice of it with sufficient time prior to the plaintiff’s injury to have taken measures to protect against it; and (5) that the public entity’s failure to act to protect against the dangerous condition was palpably unreasonable.

Except as permitted via N.J.S.A. 59:8-9 (“Notice of Late Claim”), pursuant to N.J.S.A. 59:8-8, a Notice of Tort Claim must be filed with any potentially liable public entity no later than the 90th day after accrual of the cause of action. The Notice of Tort Claim must be signed and comply with the notice and content requirements set out in N.J.S.A. 59:8-4. Therefore, whenever your golf course injury occurred on a premises owned, managed, or controlled in any part by a public entity, a Notice of Tort Claim must be filed within ninety (90) days.

Conclusion

A golf course is more than just its greens and fairways—it’s a complex environment full of potential hazards. When it comes to course safety, golf course operators must stay on par with inspections and maintenance to avoid a rough situation.