Golfer Liability — A Fore Warning

I played golf again recently, after a very long break. It was a busy Sat­ur­day morn­ing, and there were far too many peo­ple hang­ing around the first tee for my lik­ing. To my con­sid­er­able sur­prise, I hit a peach of a shot, one which drew mur­murs of golferly approval from the ‘gallery.’

With my eyes mod­estly down­cast and my heart singing with a hacker’s secret joy, I was just bend­ing to retrieve my tee when a famil­iar voice rang out, and punc­tured this moment of rap­ture: ‘Aye, Mar­tin, it’s a shame that’s not a repeat­able shot!”

A lit­tle later, in a vain effort to keep up with my more skil­ful play­ing com­pan­ions, I lashed a drive badly to the left, which then headed straight at a retired busi­ness man and a promi­nent lawyer in the prime of life. The ball seemed to hang and waver in the air, as if decid­ing which of these gen­tle­men to strike.

I am not sure whether or not it was divine inter­ven­tion but mer­ci­fully my ball did not hit either of them. But what if it had? What if I had injured or even killed one of them? Could he or his estate have sued me and/or the golf club?

It is a mat­ter of fierce dis­pute at my firm whether golf is really a ‘sport,’ but assum­ing for present pur­poses that it is, the law treats per­sons who par­tic­i­pate in sport­ing activ­i­ties as if they had con­sented to the risk of injury aris­ing from the game being played in a law­ful and rea­son­ably skil­ful manner.

Even the best golfers hit some bad shots from time to time, and so all golfers know that it is pos­si­ble to hit a wild shot that has the poten­tial to cause injury. But golf would not be so pop­u­lar if every player was required to play in such a man­ner that the golfer elim­i­nated all risks to other play­ers, spec­ta­tors and passers-by. That would make every­one a Tiger Woods-equivalent, and even he makes bad shots!

The law takes a common-sense approach. A golfer is not required to take pre­cau­tions against every fore­see­able risk. If the golfer has exer­cised rea­son­able cau­tion before mak­ing the shot, and the golf shot is played in accor­dance with the rules of the game, and any spe­cial rules posted by the golf course applic­a­ble to the sit­u­a­tion, then in the­ory the golfer will not be liable if he hits another golfer—even if the shot kills him dead on the spot!

The crit­i­cal assump­tion here is one of rea­son­able cau­tion in the cir­cum­stances. A rel­a­tively unskilled golfer must take greater cau­tion to com­pen­sate for his lack of rea­son­able skill. He also might con­sider pur­chas­ing insur­ance as part of his house­hold policy.

So much for caus­ing injury to a fel­low golfer. What about caus­ing injury to a per­son out­side the course? For exam­ple, what if a stray golf shot hits some­one sit­ting in a Jacuzzi at a con­do­minium built next to the course?

The basic rule is that the golf course oper­a­tor will be liable in neg­li­gence if golf can­not be played on that par­tic­u­lar hole of the course with­out cre­at­ing a sub­stan­tial risk of injury to per­son or property.

How­ever, the basic rule may not be applic­a­ble in par­tic­u­lar fac­tual sit­u­a­tions because Bermuda law per­mits a per­son to ‘waive’ their rights even in respect of per­sonal injury. In the 21st cen­tury, this should be a mat­ter of national shame but, until the law is reformed, I sug­gest that all res­i­dents of golf course con­do­mini­ums check the small print to see if the golf course oper­a­tor (who will usu­ally also be the devel­oper and ven­dor of the con­do­mini­ums) has attempted to exclude lia­bil­ity for per­sonal injury or dam­age to property.