is surface compaction. Additionally,STC may be effectively used when per-formed on a spot treatment basis. Aregular program of STC with smalldiameter tines on high, dry areassusceptible to runoff and localized dryspots or on highly compacted trafficzones should improve water infiltra-tion. By limiting STC to a spot treat-ment program, the potential for culti-vation pan formation is isolated toknown areas.

To counteract the development of acultivation pan, it is best to cultivatewhen the soil is more dry and to varythe depth of cultivation, if possible.There must be sufficient soil water to

allow tines to penetrate, of course. Also,small diameter tines should help limitthe formation of cultivation pan, yetallow some loosening of the soil toimprove water infiltration. Because nosoil is removed with STC, the gain inimproved water infiltration will beshort-lived, and repeat treatment willlikely be necessary.

STC can be an effective cultivationmethod when used in combination withHTC. The spring and fall seasons allowHTC to be used, while midseasoncultivation can be accomplished withsmall diameter STC. On sites where soilcompaction is not a severe problem,STC is not recommended. It is useful

to review your overall managementobjectives and goals to determine whichequipment and program are best foruse in a particular situation.

Literature Cited

Koski, A. J. 1983. Seasonal rooting charac-teristics offive cool-season turfgrasses. M.S.thesis. Ohio State Univ. 133 pp.

Murphy, J. A., and P. E. Rieke. 1987. Hol-low- and solid-tine coring research. 57thAnnual Michigan Turfgrass Conf. Proc.16:28-33.

Petrovic, A. M. 1979. The effects of verticaloperating hollow-tine (YOHT) cultivationon turfgrass soil structure. Ph.D. disser-tation. Michigan State Univ. 86 pp.

Liability on the Golf Courseby J. MICHAEL VERONMember, USGA Sectional Affairs Committee

THE PAGES of this publicationare normally devoted to respond-ing to the numerous challenges

that agronomic conditions pose tomanagers and superintendents of golfcourses and clubs. However, in anincreasingly litigious society, managersand superintendents are now becomingaware of the many ways in which theiroperations may invite litigation.

Liability on the golf course can con-veniently be divided into three principalsubjects. First, there is liability forinjuries to employees, which generallyinvolves the law of workers' compen-sation. Second, there is liability forinjuries to golfers and others, whichimplicates the law of tort liability forpersonal injuries. Finally, of increasingprominence is the law governing lia-bility for chemical damage to thecourse, which can best be described astort liability for property damage.

Liability to Employees:The Law of Workers' Compensation

Anyone who suffers an injury isordinarily entitled to recover damagesfor the injury if it was caused by thenegligent conduct of another. Negligentconduct is that which falls below whatwe expect people to do in a givencircumstance, such as to obey traffic

10 USGA GREEN SECTION RECORD

Author Mike Veron

signals to avoid automobile accidents.An individual injured because of some-one else's negligence is entitled to re-cover full damages from them: all lostwages, future lost earnings, medicalexpenses, and pain and suffering. Thisis part of the law of tort, which is dis-cussed more fully below.

An employee who is injured on thejob as a result of the negligence of hisemployer or a fellow employee is

ordinarily not allowed to sue them fordamages. In other words, the employerand fellow employees are immune fromdamages under the law of tort. Instead,the employee is limited to recoveringbenefits provided by state statutes.These benefits are called workers' orworkmen's compensation benefits.Typically, all medical expenses are paidby the compensation insurer, and anemployee who misses work receivesadditional weekly benefits that approxi-mate a fraction of his average weeklywage, usually either 2/3 or 3/4. He doesnot receive any damages for pain andsuffering.

In return, the employee is not re-quired to show that his injury wascaused by the negligence of another. Heis entitled to workers' compensationbenefits simply by showing he was in-jured on the job, regardless of whetherthe accident was anyone's fault.

It is possible to have both legalremedies (tort and workers' compen-sation) apply to an accidental injury.For example, a grounds crew membermay be seriously injured by the equip-ment he was operating. Because theinjury occurred on the job, he would beentitled to workers' compensation bene-fits. However, he could not recover gen-eral damages from his employer, theclub, or from any fellow employees

An accident waiting to happen.

because of the tort immunity providedby workers' compensation laws.

On the other hand, if the equipmentwas defective, it is possible that theinjured worker might recover damagesfrom the manufacturer of the equip-ment. If he were able to show that theequipment was defective by reason ofpoor design or manufacture and thatthis defect was a cause of the accident,then he could recover damages from themanufacturer under tort law. This kindof tort is called product liability. It isdiscussed in more detail below in thecontext of chemical damage to the golfcourse.

Every employer is required by law tocarry workers' compensation insurancein order to enjoy immunity from tort.If the workers' compensation insurerpaid any medical bills in the aboveexample and/ or furnished weekly bene-fits, it would be entitled to intervene in

the tort action and to be reimbursed inpreference and priority out of any pro-ceeds recovered by the worker againstthe third party equipment manu-facturer.

Liability to Non-Employees:The Law of Tort

Golfers and others on the course whoare not employees of the club or courseare not entitled to workers' compen-sation if they are injured. They areallowed to sue for damages if they canshow that their injury was caused by thenegligence of another. Theoretically,therefore, a golfer who hits a shot thatinjures another golfer may be liable forthe injury and all damages associatedwith it.

Fortunately, the courts have generallyrecognized that hitting an errant golfshot does not constitute civil negligence

because an occasional bad shot is aninherent part of the game [e.g., Bakerv. Thibodeaux, 477 So. 2d 245 (Ls. App.4th Cir. 1985)]. However, one court hasheld that an adult golfer was liable forstriking a nine-year-old child in the eye,blinding him, even though the child hadconsented to allow the adult golfer toplay through but had remained onlyslightly out of the way. The courttheorized that the adult was negligent innot making the child move to a saferplace out of the zone of danger [Outlawv. Bituminous Insurance Co., 357 So. 2d1350 (La. App. 1st Cir. 1978)]. Interest-ingly, some courts have suggested thatthe golfer who fails to yell "fore" afterobserving his ball approaching anothergolfer may well find himself on thewrong end of a lawsuit for his negli-gence in failing to warn a fellow com-petitor, not for hitting the poor shot inthe first place.

SEPTEMBER/ OCTOBER 1990 11

Injuries caused by a member of themaintenance crew, rather than anothergolfer, fall under the same rule. In fact,under the tort law of most states, anemployer is automatically liable indamages for any negligence of anemployee who injures a non-employeeif the conduct in question arises duringthe course and scope of the employ-ment. Thus, any golfer injured on thecourse by a member of the grounds crewor other employees of the club mayrecover damages from the club if he canshow that the employee was guilty ofnegligence that caused the injury.

At the same time, the law also recog-nizes that, with respect to certain activi-ties, people assume the risk of beinginjured because of dangers associatedwith the activity. For example, baseballspectators are generally not allowed torecover for injuries when struck by afoul ball because that is part of the riskthey assume in attending a baseballgame.

So it is with golf. Errant shots occureven among the best golfers in theworld. No one would play the game ifhe were liable for any injury he mightcause because his ball went in anunexpected direction.

In legal terms, the assumption of riskis a complete defense to an action fordamages because of negligence. Simplyput, every golfer is considered to haveassumed the risk of being injured by apoorly executed golf shot when he stepsonto the course. At the same time,assumption of the risk does not applyto all situations: One may assume therisk that other golfers may strike errantshots, but that does not mean heassumes the risk that other golfers mayfail to warn of the shot or fail to waituntil the group ahead is past theintended landing area.

By way of further illustration, onemay assume the risk of being struck bya golf ball on the course, but he does notassume the risk of being struck by a limbfalling from a tree being trimmed by themaintenance crew. If the crew is negli-gent in not warning golfers that they aretrimming overhead, they - and theclub that employs them - may be liablein damages for any injury they cause.

Tort liability for injuries caused by adefect in property is generally calledpremises liability. Simply put, anyonewho owns or controls. property has aduty to keep the property free of hiddendangers that may injure those who comeon the property. It is difficult togeneralize very much in this area, as therules vary substantially from state to

12 USGA GREEN SECTION RECORD

state. The rule that applies in a givensituation depends on the kind of defec-tive condition that is involved, whetherthe person injured was lawfully on thepremises, and other factors. In somestates, liability is strict; the injured per-son need only prove that the defectivecondition existed without showing thatit was caused by the owner's negligence.In fact, the owner may not even havebeen aware of the condition. That willnot exonerate him if strict liabilityapplies.

Golf clubs and courses face a specialproblem in this area because the foot-wear worn by golfers, while ideal forthe golf course, can be dangerous onother surfaces. Simply put, spiked shoesprovide little traction on concrete andmay cause slips and falls. On carpetsand rugs, spiked shoes may producetears and may cause trips and falls.Either situation raises potential liabilityfor the premises owner [e.g., Beauchampv. Los Gatos Golf Course, 273 Cal. App.2d 20, 77 Cal. Rptr. 914 (1969)].

There are frequent references in thecases on premises liability to what iscalled an attractive nuisance. This termrefers to a dangerous condition that hasan appearance that is inviting and maylure passersby to danger. The term origi-nated in swimming pool cases where theowner of a back yard swimming poolfailed to erect a fence or other barrierto prevent curious children from beinglured to the pool and exposed to thedanger of drowning.

Obviously, an analogy can be made tothe ponds that exist on many golfcourses. While it is not practical to fencein water hazards, clubs should haverules preventing any swimming in thewater hazards by the members or theirchildren and further should post warn-ing signs against trespassing at anypoint on the course's boundary where itis suspected that children or other in-truders gain entry. Such measures mayprevent a tragic accident. Even if theydo not, they may exonerate the courseor club from civil liability in the eventof a suit by showing that all reasonablesteps are taken to prevent the accident.

The rules on premises liability haveobvious consequences for golf courseoperators. Two common problems in-volve joggers and golf carts.

Some courses permit joggers, sometolerate them, and some outlaw themaltogether. One case in particular illus-trates the potential problems that canresult when someone jogs along the golfcourse.

In 1981, a club in New Orleans had arule that allowed members to jog on thegolf course, but only after dark so theywould noCinterfere with the golfers.One member of the club, who lived next

. to the course, liked to take advantageof this. One night he fell into an opendrain while jogging. Although he wasaware of the drain because of hisfamiliarity with the course, he usuallyidentified it by tall grass that sur-rounded it, forming a natural barrier ofsorts. For some reason, the tall grasshad been cut, and the jogger failed torecognize the drain hole.

Although there were few objectivemedical findings to speak of, the joggerfiled suit against the club and its insurer.Despite the fact that he unquestionablyknew about the hole (he had evencomplained to club personnel prior tothe accident that it had no cover), ajuryfound in his favor and awarded him$830,000. On appeal, the award wasreduced to $693,500 for reasons notrelevant here [Fritscher v. Chateau Golf& Country Club, 453 So. 2d 964 (La.App. 5th Cir. 1984)].

In its ruling, the Court of Appealaffirmed the trial court's refusal to allowthe assumption of the risk defense urgedby the club, finding that the jogger'sfamiliarity with the hazard did not evenjustify submitting the issue to the jury!The moral of this story: Any work onthe golf course that is hazardous whenleft unattended should be prominentlymarked and roped off or barricaded ifat all possible. The plastic mesh ornetting that is available in bright colorsis ideally suited for this purpose.

Similar horror stories exist withrespect to accidents involving golf cartson the course. In fact, the great bulk oflitigation against golf courses and clubsfor personal injuries arises fromaccidents involving golf carts [seegenerally Annot., Liability for InjuryIncurred in Operation of Power GolfCart, 66 A.L.R. 4th 622 (1988)]. Essen-tially, golf course owners and operatorscan be liable for injuries to a patron ormember arising from the operation ofa golf cart if improper maintenance ofthe cart, a cart path, or any othercondition caused or contributed to theaccident [e.g., Ryan v. Mill RiverCountry Club, 8 Conn. App. 1,510 A.2d462 (1986), steep slope unreasonablydangerous in absence of guardrails orwarning signs; Goodwin v. WoodbridgeCountry Club, 170 Conn. 191, 365 A.2d1158 (1976), golfer recovers for injuriescaused by improperly maintained golfcart]. In some jurisdictions, a golf cart

High-voltage hazards should be secured.

has even been held to be a "dangerousinstrumentality," and a club or courserenting a cart is liable for its misuse byanyone operating it with the consent ofthe owner [e.g., Meister v. Fisher, 462So. 2d 1061 (Fla. 1985)]. This effectivelymakes the club or course the liabilityinsurer of each cart renter! A club orcourse also has a duty to warn its golfcart passengers of any dangerous con-dition they are likely to encounter, andit may be liable for injuries sustained asa result of its failure to warn [e.g.,McRoy v. Riverlake Country Club, 426S. W2d 299 (Tex. Civ. App. 1968), treestump].

These and other cases make it clearthat a course operator has an obligationto maintain its cart paths free of defectsand to mark all potentially dangerousconditions with prominent warningsigns. Moreover, a club operator who

rents golf carts has an obligation tomake certain that each one is properlymaintained and functions in a way thatdoes not endanger the occupants. Thisincludes a duty to provide proper in-structions to renters in the safe mannerof operating a cart.

Liability for Chemical Damage

Every superintendent's nightmare isto apply a chemical. that causes un-anticipated damage to the golf course.Anyone who has been a golf coursesuperintendent for very long has had apro blem with chemical damage to hiscourse at one time or another. If he islucky, the damage is neither great norpermanent. If he is not, he is often notaround long enough to find out how thedamage occurred.

As noted above, there is a branch oftort law called product liability. Anyonewho makes a product is liable for anydamage caused by a defect in thatproduct when the product is used in anormal or foreseeable manner [Restate-ment of Torts (2d) S402A]. A defect isany flaw in design or manufacture thatrenders the product unreasonablydangerous when in normal or foresee-able use. The danger might be associ-ated with a personal injury, as with theexample of the worker injured bydefective equipment. The damage mightalso be property damage, such as thedestruction of golf course turf caused bya defective chemical product.

As a practical matter, it is importantto understand that the mere fact that achemical is associated with damagedoes not mean that the manufacturer ofthe chemical is liable. A course operator

SEPTEMBER/ OCTOBER 1990 13

Protection must be provided for the crew too.

who experiences damage to his coursefrom the application of a chemical bearsthe burden to prove that the chemicalcaused the damage. It will likely be thechemical company's first line of defenseto show that the damage that occurredwas not caused by its product but ratherwas a result of other environmentalstresses or misapplication.

This invites a comment about pro b-lems of proof. Just because somethingis true does not mean it is self-provingin a court of law. The rules of evidencedetermine how claims are to be proven.Ordinarily, witnesses are only allowedto testify about what they have seen orexperienced personally. They are notallowed to offer opinions. An exceptionto this is the expert witness rule. Therules allow an individual who is an

14 USGA GREEN SECTION RECORD

expert in a particular field by virtue ofthis education ani or experience to offerexpert opinions about a subject if doingso will help explain matters pertinent tothe case [Fed. R. Evid. 701-03].

In order to prove the cause of turf-grass damage, expert opinion is oftennecessary. A superintendent himselfmay be qualified to offer that testimony,depending on his own education, train-ing, and work experience. Often, theclub's attorneys may want to bring in awell-recognized expert in the field toevaluate conditions and to offer his ownindependent opinion.It is important not to neglect this

aspect of the case. It is reasonablycertain that the chemical company willhave an expert who can be expected totestify that, based on his inspection of

the problem, some local condition,other cause, or product misuse wasresponsible for killing the greens. Thus,it is vital that the club have an expertwho can show that the chemical causedthe damage.

In addition, the club must show thatit used the product in its normal orforeseeable manner. This is called labelcompliance, and it is the second line ofdefense for the chemical company,which may claim that the club misusedor misapplied the product. Simply put,the club must show that the product wasused in accordance with the directionsthat came with it, which in most casesis required to be on the label of thecontainer holding the product.

This is simply a question of fact. Toavoid application problems, only thesuperintendent or his assistant shouldmix or dilute chemicals. Leaving themixing to an inexperienced workerinvites problems. A log should be keptshowing what was done - how thechemical was mixed or diluted. Anotherworker should witness the mixing ordilution, and both the mixer and thewitness should date and sign the log.This provides persuasive evidence as towhat was done in applying the chemical.In the event of problems, the log is aconvenient record identifying indi-viduals who will provide testimony re-garding the application of the chemical.It is also important that the container,with a small amount of the chemicalsufficient for later testing, be kept untilit is certain that no damage occurredfrom application.

This kind of record has anotherimportant purpose. It documents whatthe superintendent has done - and canexonerate him when an irate GreenCommittee Chairman wants to knowwhy he poisoned the greens.

Obviously, this essay can provideonly an overview of the various legalissues that may confront golf courseoperations. The particular facts of eachsituation are critical. It is important,therefore, not to assume that a givensituation will be controlled by thevarious rules discussed here. Addition-ally, the rules vary from state to state.For that reason, specific questionsshould be directed to an attorney inthe club's jurisdiction.

The author is a past president of theLake Charles Country Club, LakeCharles, Louisiana, and is associatedwith the law firm of Scofield, Gerard,Veron, Hoskins & Soileau, Lake Charles,Louisiana.