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This can happen even to the most famous of golfers. President Gerald Ford was so notorious for hitting spectators with golf balls that Bob Hope once joked, "It's not hard to find Jerry Ford on a golf course - you just follow the wounded."

On February 15, 1995, Ford, Bill Clinton and George Bush (the elder) played in a pro-am tournament at the Indian Wells Golf Club near Palm Springs, California, the first time three presidents had ever golfed together. The end result: Ford shot 100 and struck one spectator. Bush's score was 92 and he hit two spectators, one of whom required hospitalization. Clinton scored a 93 and knocked a piece of watermelon from a boy's hand with one of his shots.

Golfers are so certain that they will mishit their shots that they invented an expression just for the occasion: "Fore!"

When a Bad Drive Lands in Court

Perhaps the only event more certain than a golf ball being mishit is that any person who is injured by the errant ball will sue someone. Last March, in the case of Heiden v. Cummings, the Appellate Court of Illinois rejected one such lawsuit.

In Heiden, a golfer was playing near the 17th green at a private country club in McHenry when another golfer hit her in the ankle with his tee shot from the 18th hole. The trial court granted a summary judgment rejecting the injured golfer's claims. The court simply didn't believe that the golfer on the 18th tee had hit his ball in a negligent manner.

The appellate court agreed, finding that "there is no evidence of anything more than a bad shot," and that this alone was not proof of negligence. The court stated that, since "even the best professional golfers cannot avoid an occasional 'hook' or 'slice,' it cannot be said that the risk of a mishit golf ball is a fully preventable occurrence. To the contrary, even with the utmost concentration and 'tedious preparation' that often accompanies a golfer's shot, there is no guarantee that the ball will be lofted onto the correct path."

It may have been on this same, common-sense basis that a Cook County jury rejected a negligence claim against professional golfer Dow Finsterwald, whose 18th tee shot at the 1973 Western Open tournament went so far off course that it struck a spectator standing alongside the first fairway, blinding her in the right eye.

Nevertheless, the same jury found the Midlothian Country Club, where the tournament had been played, liable for the spectator's injuries. The spectator claimed, among other things, that the club had failed to provide a reasonably safe environment for a professional golf tournament. (The Appellate Court of Illinois affirmed a $448,380 award in the woman's favor, 12 years (!) after the incident.)

A golfer cannot always escape liability, however, for hitting someone else with his ball. In 1997, the Appellate Court of Illinois ruled that even an inexperienced golfer must "exercise ordinary care for the safety of persons reasonably within the range of danger of being struck by the ball."

In this case, the defendant's playing partners had outdriven him by about 100 yards. Leaving the defendant by his ball, his partners went to look for their own, but only after warning him to wait until they returned before taking his second shot. Instead, the defendant hit away. Unfortunately, rather than slicing, as he had been most of the day, defendant hit the ball straight - and struck one of his playing partners in the temple.

The appellate court rejected "the notion . . . that physical contact with another player's ball is simply 'part of the sport' of golf." The court stated that, "it is a matter of common knowledge that players are expected not to drive their balls without giving warning when within hitting distance of persons in the field of play, and that countless persons traverse golf courses the world over in reliance on that very general expectation."

Court Rulings Can Hook or Slice, Too

Persons injured by errant golf balls tend to sue park districts and other golf course owners as often or more often than they sue the golfers who mishit the balls, perhaps thinking that those who collect greens fees have deeper pockets than those who pay them.

The resulting decisions are all over the course. In one older case involving the Garfield Park golf course in Chicago, the appellate court reversed a jury verdict in favor of the plaintiff, who had been struck in the eye by another golfer's ball, even though the nine-hole course was laid out with narrow fairways running parallel that were played in opposite directions.

The appellate court found that "it is a matter of common knowledge" that such conditions can be found "on practically all golf courses . . . where a

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sliced or hooked ball may and frequently does go into another fairway." The court therefore recognized that "accidents may occur at any time" on the golf course and refused to subject course operators "to liability for such an accident" because this "would make them insurers of all players on the course. This is not the law."

In contrast, a 1976 appellate court decision ruled that a golfer who had been struck in the face with a ball could properly sue the Springfield Park District for negligence in its operation of the golf course where the incident occurred.

It was enough, the court held, for the plaintiff to claim that the park district had violated well recognized architectural rules for the construction of golf courses, allowed the course to become overcrowded, failed to provide adequate supervision of the course and failed to enforce its regulations.

Protection For Public Courses

The Local Governmental and Governmental Employees Tort Immunity Act makes it more difficult for plaintiffs to win these sorts of lawsuits against units of local government, including park and forest preserve districts and municipalities, as opposed to private golf course operators. For example, in Koh v. Village Greens of Woodridge, a participant in a golf tournament at a village-owned course alleged that the village's negligence in directing participants and spectators where to stand resulted in her being struck by another participant's ball. The appellate court ruled that Section 3-108 of the Tort Immunity Act barred the plaintiff's claim for negligent supervision.

In Koltes v. St. Charles Park District, the plaintiff claimed that she was injured by the errant shot of another member of her foursome while she was in a designated "standing area" about 75 yards in front of and to the left of the men's tee. The appellate court affirmed summary judgment in favor of the park district, finding that the design of the golf course was an "exercise of discretion" and that the district therefore was immune from liability under Section 2-201 of the Tort Immunity Act.

More recently, the Illinois Supreme Court ruled that Section 2-201 immunity applies only when a unit of local government can establish that, "in formulating a plan for the construction of a park" or other recreational facility, it considered "site-specific conditions and the balancing of competing interests" and made "a judgment call as to what solution will best serve those interests."

Suits May Be Par for the Course

Professional golfer Lloyd Mangum once said that, "Golf is the only sport I know of where a player pays for every mistake." And, if a lawyer gets involved, sometimes it isn't only the player who pays.

James D. Wascher is an attorney with the Chicago law firm of Friedmon & Holtz, PC., and concentrates his practice in representation of pork districts, civil litigation and appeals. Although his golfing skills ore minimal, at best, trees ore the only living things that he has ever hit with a golf boll.

20 | Illinois Parks and Recreation

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