(Ans. (a) God, nothing.

(Ans. No. Non-golfers of ordinary intelligence are expected to know the dangers of lightning. A very young golfer may be held to a lesser standard of self-care.)

(Ans. (a) Because the arguments in Hames were broader, the rule of the case is broader. E.g., The danger of lightning is generally known and the chance of a golfer being struck by lightning is remote and unforeseeable; thus, a golf course exercising reasonable care has no duty to offer special protections to golfers, who are expected to protect themselves. Hames. Even if the course was negligent in not offering golfers special protections from lightning, this was not the legal (proximate) cause of decedent's death; rather, the legal cause was the Act of God. Hames.

(b) Add to the above Hames rule the following. A golf course which does erect a weather shelter in which a golfer is struck by lightning is not liable when the shelter does not increase the risk to the golfer. Davis.)

Van Maussner v. Atlantic City Country Club

I

A.

At approximately 7:30 a.m. on Sunday, March 28, 1993, plaintiff Spencer Van Maussner, a longstanding member of the Atlantic City Country Club (Club), arrived at the Club with his friends Michael McHugh, Robert Dusz, and Peter Costanzo. The foursome regularly played golf together on Sunday mornings. Although a snowstorm had been predicted for that morning, the sportsmen were not deterred from pursuing their scheduled golf match.

The sky that morning was overcast with misty conditions, and it was drizzling rain by the time the group began to play. At approximately 8:00 a.m., the Club's starter directed the foursome to begin play at the tenth hole. The "starter" is the person who tells the golfers when to start playing. His function is mainly to assure that golfers begin play at regular intervals. The starter will often advise players of any special rules that they need to follow on any particular day. It is not uncommon at golf courses for a player to begin play on the "back nine." This is especially so when inclement weather conditions render a particular set of nine holes in better condition than another.

As the group played their first two holes, the tenth and eleventh, the drizzle turned into a downpour, which subsided as they teed off at the twelfth hole. After hitting his approach shot to the twelfth green, McHugh noticed a lightning bolt, and the four players and their two caddies proceeded along the fairway intending to seek refuge at the clubhouse, which was approximately one half mile away. There were no man-made shelters along this route. While walking, plaintiff put up his umbrella to avoid the rain.

On route to the clubhouse, the group crossed onto the seventh fairway. Walking on the seventh fairway, McHugh and Dusz were about fifteen yards behind plaintiff and Costanzo. Suddenly there was a tremendous noise, and McHugh watched as a lightning bolt struck plaintiff, causing him substantial injuries. Both plaintiff and Costanzo fell to the ground. Dusz immediately went for help at the clubhouse, which was approximately 325 yards away, while McHugh remained behind to assist his friends. One caddie was sent to the nearby police station to obtain additional assistance. After ascertaining that Costanzo was stable, McHugh administered CPR to plaintiff until the police and the medics arrived. According to McHugh, the Club caddie master and Club pro arrived at about the same time as the police. During this time, lightning continued to appear in the sky.

B.

Plaintiff filed a complaint seeking damages for the injuries that he sustained in the above incident at the Atlantic City Country Club. The named defendants were the corporate entity itself and others. The various defendants filed a timely answer to plaintiff's complaint, raising, inter alia, the defenses that they were under no duty to protect plaintiff from a lightning strike and that plaintiff's injuries were the result of an act of God.

Defendants moved for summary judgment asserting that plaintiff had not "met his burden of establishing that defendants created or maintained a dangerous condition on the golf course." According to their moving papers, defendant: "[U]sed reasonable care to make its premises safe for golfers. It monitored the weather channel and was in constant communication with the weather station. Signs were posted at the Country Club instructing members of its evacuation plan and how to proceed if inclement weather struck during play." Defendant also argued that it was entitled to summary judgment because "[p]laintiff has not met its burden of establishing that a foreseeable risk was the proximate cause of his injuries."

Accompanying its motion for summary judgment, defendant attached its answers to plaintiff's interrogatories. One such answer claimed that it had "no notice of [the lightning storm], however this defendant did have an effective evacuation plan which was put into effect immediately upon notice of a lightning storm." There is no evidence in the record that this "evacuation plan" had been reduced to writing or posted anywhere at the Club. This evacuation plan apparently consisted of the golf pro and the pro shop manager getting into golf carts, driving onto the course to locate golfers, and making sure that all the golfers vacated the course.

According to defendant, Club management generally monitored the weather by listening to the weather advisory channel and placing calls to the Naval Aviation Facilities Experimental Center (NAFEC). The Club consulted the National Weather Service on the morning of the incident and, although inclement weather was predicted, there were no warnings that lightning was possible.

The Club did not possess any equipment for detecting lightning, had not installed any audible warning devices, nor had they erected any shelters on the course. Club members were warned about the general risks of lightning by a notice from Don Siok, the Club golf pro, and a United States Golf Association (USGA) poster, which were both posted in the locker room. The notice from Siok advises golfers that: WEATHER CONDITIONS SOMETIMES NECESSITATE OUR GOLF COURSE EVACUATION PLAN TO BE IMPLEMENTED. WHEN AUTHORIZED PERSONNEL ADVISE YOU TO COME IN OFF THE COURSE, IT IS IMPERATIVE THAT YOU DO SO. OUR WEATHER MONITORING SYSTEM (NAFEC AND WEATHER ADVISORY CHANNEL) ADVISES U.S. OF DANGEROUS ELEMENTS IN THE AREA AND GIVES U.S. TIME TO CLEAR THE COURSE TO INSURE YOUR SAFE EVACUATION. THE U.S.G.A. RECOMMENDS YOU REACT IMMEDIATELY TO A DANGEROUS SITUATION AND TO SEEK SHELTER IF YOU FEEL DANGER FROM LIGHTING (sic) OR STORM IS IMMINENT. In a responding certification, plaintiff claimed that these notices were not placed in the locker room until after he was struck by lightning.

As described by the Club, their evacuation plan, which entailed Club employees retrieving golfers on the course at the first notice of thunder or lightning, had been in effect for approximately forty years. Defendant also maintained that golfers were encouraged to retreat to nearby private homes in the event of a severe storm. Plaintiff and his friends, in response certifications, denied any knowledge that they would be welcome at these homes. It is unclear from the record whether the surrounding houses are on golf course property or whether they are independently-owned and outside of the perimeters of the golf course. Nonetheless, according to defendant, one caddie did make this suggestion while the golfers were walking back to the clubhouse. The golfers apparently rejected the idea. Plaintiff, however, disputes this contention.

C.

On March 19, 1996, plaintiff filed a brief in opposition to summary judgment. Accompanying plaintiff's brief in opposition to defendant's motion for summary judgment were the following: plaintiff's affidavit; a statement by Michael McHugh; and a "preliminary report" written by Henry A. Berger, CLP, a recreation and sports consultant, retained by plaintiff as an expert.

In plaintiff's affidavit, he opined that if the Club's evacuation plan worked as the Club stated that it did, the Club employees would have arrived earlier than they did. Plaintiff also disputed the claim that "everyone" knew that there were private houses along the course at which golfers would be welcome in the case of inclement weather. According to plaintiff, "[n]o one ever told me, or anyone else that I am aware of ... prior to the incident, or for that matter afterwards, that their home, or any other neighboring home was open to golfers."

Plaintiff also stated in his affidavit that the Club "had no shelter anywhere on the course at the time of this incident, other than the clubhouse.... The 18 hole golf course had no intermediate shelters at the time of this incident." Plaintiff also pointed out that subsequent to the incident defendant erected a shelter, a bathroom, on the 12th hole. Plaintiff also disputed defendant's assertion that the warning posters were posted at the club prior to the incident, claiming that they were "placed in the locker room after I was struck by lightning." Plaintiff also stated that other golf courses that he had played in the area have shelters along the course and siren or horn systems for warning golfers of a change in the weather.

According to Berger, the lightning was a "dangerous condition, and the design, management and maintenance of the Country Club created and exposed [plaintiff] to the risk of being struck by lightning." According to Berger, "Weather Service personnel had the technology to foresee those conditions that would have resulted in storm fronts producing lightning." In other words, if the proper weather monitoring was used, this accident could have been avoided. Berger further stated: "[T]here was technology available (Sky Scan) in 1993 to the Atlantic City Country Club that would have enabled personnel to detect lightning up to as much as a forty (40) mile radius of the Country Club. This technology was available at a reasonable, minimal investment to the Country Club, was portable and would have provided more time to institute an evacuation plan for golfers ... preventing the chance of someone being struck by lightning."

Berger discussed the placement of shelters on the golf course, stating that "[c]ommon practice in golf course design, management and maintenance is to provide shelters in strategic locations on the golf course." The reason for this, according to Berger, is to provide shelter for the golfers and protect golfers from dangerous weather conditions.

Berger opined that, based on the information available to him for the purpose of making his preliminary report, the evacuation plan utilized by the Club was inadequate, as evidenced by the period of time that it took the golf pro to find the golfers, and that the Club should have had a better system for warning the golfers of the need to evacuate the golf course by use of an audible signal.

Because of the preliminary nature of Berger's report, he reserved the right to change his opinion if further discovery so dictated. In sum, Berger found that the golf course was unsafe for golfers because the Club: (1) did not use available lightning detection equipment; (2) did not make proper use of various weather reporting services; (3) did not provide shelter at convenient spots throughout the course; (4) did not have an effective evacuation plan; and (5) did not adequately warn golfers of the hazards of lightning. Berger concluded that "[b]ut for these failures, this incident and the serious injuries sustained by Spencer Van Maussner on March 28, 1993, were preventable."

Based on the precedents, decide the motion for summary judgment.

(Ans. On summary judgment, see Special Reprint, p. 38, ftn. "m". Based on Hames, no duty exists to offer golfers protection from lightning and summary judgment should be granted. Also, defendant did not negligently increase the risk as it was alleged in Davis.