By John E. Tyrrell, Esq. and Michael E. Rosenthal, Esq.
Few pastimes capture the spirit of leisure and competitive pleasure as distinctly as golf. With vast green fairways stretching beneath open blue skies, golf courses have long been sanctuaries for enthusiasts seeking respite from the hustle of everyday life. Yet, in the age of litigation, where lawsuits are becoming as common as bogeys, these havens are increasingly encumbered by legal claims. However, invoking the trusty legal iron of “assumption of risk” can serve as a shield of defense for golf courses.
Fairness and common sense are at the heart of the assumption of the risk doctrine. The recently decided California Court of Appeals lawsuit, Wellsfry v. Ocean Colony Partners, LLC, 2023 Cal. App. LEXIS 322* (Ca. Ct. Appeals April 27, 2023) serves as a useful lens through which the doctrine can be analyzed, specifically in the context of golf-related claims.
On a sunny afternoon, Walter Wellsfry set out to play a round of golf near the aesthetic coastal bluffs in Half Moon Bay, California – a course which exemplified “the American Parklands-style course, with fairways flanked by several species of evergreen trees.” Id. at *2. After teeing off at the 14th hole, he allegedly injured himself by tripping on a small tree rootcamouflaged in a grassy walking area. Id. at *2-3. Mr. Wellsfry filed a lawsuit against the course on the theory that it was negligent by not removing the root or otherwise negligent by failing to warn golfers.
He described the tree root as approximately 1.5 inches high by 1.5 inches wide – no bigger than the golf tee he had used. Id. at *3. Mr. Wellsfry conceded trees were common on golf courses. However, he averred he did not notice any tree roots in the area in which he fell nor did he expect to encounter any.
The issue before the Court was whether the primary assumption of risk doctrine applied to the topographical features on an outdoor golf course. In other words, whether a person who chooses to golf on a golf course, accepts that he or she may run a risk of encountering natural growth hidden within the green. The Court ruled in favor of the golf course, rejecting Mr. Wellsfry’s claim of negligence. In fact, the Court noted that California’s highest court had previously answered this question affirmatively in the context of being struck by a carelessly hit ball.Id. at 16.Naturally, the Court reasoned, if being hit by an errant ball was an inherent risk of the sport, then encountering objects hidden within a grassy expanse must likewise be an inherent risk of playing.
The cornerstone of any premises liability lawsuit against an owner/operator of property is first establishing the owner has a duty, or some relationship with the plaintiff that creates liability. For example, golf course owners owe a general duty of care to keep golfers “safe” on their property, due to the relationship between these two parties. Id. at *14. Because the nature of sports generally involves physical movement and/or exertion, often coupled with equipment which have inherent injury-causing properties, like the errant ball or the carelessly discarded bat or club, the concept of keeping participants in the sport “safe” has been interpreted loosely. This loose interpretation is due to the conditions or conduct integral to the sport itself, which might otherwise be viewed as dangerous. Under the assumption of the risk doctrine, ordinarily a recreation provider, such as a golf course owner, does not owe a duty of care to a participant in an active sportto eliminate risks inherent in the sport. Id. at *14-15
Thus, it begs the question: what constitutes an inherent risk in a sport? Generally, the answer depends on the nature of the sportand on the parties’ general relationship to the activity Id. at *21-22. Usually, the standards of the sport guide the inquiry. Id. at *15. For example, California courts have held each person, who participates in the sportof skiing, accepts the inherent and obvious risk of injuries that can result from “variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees, and other forms of natural growth or debris.” Id. at *20. When considering the standards of outdoor golf, the Wellsfry Court considered various sources for establishing what it considered to be inherent risks in outdoor golf, including by reference to the “common experience” of members of the bench Id. at *13-15.
In the Court’s view, and in the view of most golfers, part of playing at an outdoor golf course involves walking the course over and maneuvering the ball around various types of terrain (even if you choose to drive a golf-cart). For example, walking around creates players’ fatigue, which impacts their ability to perform. Further, hitting a ball onto the green as opposed to slicing a ball into the greenside bunker can be the difference between a birdie and bogie. Practically speaking, no golf course is going to create a flat course with flat terrain – that would fundamentally change the game. In Wellfsry, there was no question the golfer was aware of the general landscape of the course. By his own admission, he had played “a lot of golf.” Id. at *3.
An important caveat is that a plaintiff can overcome an assumption of the risk defense if he or she can produce evidence that the golf course increased the risk associated with the sport. Id. at *15. Along the same lines, owners and operators must undertake reasonable steps to protect the participants, without fundamentally changing the game. In the context of outdoor golf, having a completely flat course, without any topographical features, would strip the sport of its appeal. Id.
In essence, Mr. Wellsfry asked the Court to lower the average of inherent risks involved in outdoor golf, thereby making it easier for future plaintiffs to bring suits against venues for something as small as a 1.5 inch tree root. The Court refused Mr. Wellsfry’s request. From a public policy perspective, setting a precedent that a 100-acre golf course may be liable for a 1.5-inch tree root, would put an unfair burden on golf courses to scan their large courses with a fine-tooth comb to find de minimis risks.
In the end, common sense prevailed. In any sport, there are always going to be inherent risks. It is the nature of sport. It is why people are so drawn to it, and why it has become a multi-billion-dollar industry. While venue owners and operators are not completely free of liability resulting from a player’s injury, they must shoot for par by taking reasonable steps to limit injury to players, without fundamentally clearing the fairway of all conditions which are intrinsic to the game.
