A LEGAL PAR FIVEYou will need more than a good selection of clubs and shotmakingskills to get out of these legal hazards on the golf course.by BO LINKS @ 1998

THE SCENE is Deep Pockets GolfClub, founded in 1993 and host-ing its first U.S. Open Sectional

Qualifying in 1998. The 18th hole atDeep Pockets borders a housingdevelopment. It was built in a narrowslot between two rows of houses thathave been there for 20 years. The holeis an extremely short par four; it is adogleg right, measuring only 298 yards(about 245 as the crow flies). The greenis tucked behind a large house ownedby Mr. and Mrs. Rick O'Shea. Theirkitchen faces the tee.

Often, when players at the tee askwhere to aim, knowledgeable caddiestell them to aim at the O'Shea's chim-ney - for longer hitters, a shot directlyover the O'Shea's chimney has a goodchance of reaching the green, offeringup the chance at an eagle putt to finishthe round.

Billy Bob Basherooni, aka "TheHammer," is a 2-handicap and aveteran of several national long-drivingcompetitions. He has come to DeepPockets in an attempt to qualify forthe U.S. Open. He arrives at the 18thhole with a chance to make it throughsectional qualifying, but he needs togo two under on the last hole in orderto do so. He asks his caddie, Lippyde Loopo, where he should aim histee shot. Lippy tells him about the"chimney route," as it is known locally.

Billy Bob Basherooni attempts tocut the dogleg, but his tee shot, whilehammered hard and on line for thechimney, comes up short. He doesn'tmake it across the dogleg. His ballbounces off the chimney, crashingthrough one of the windows in theO'Shea's kitchen, injuring Mrs. O'Shea,who suffers facial lacerations from theflying glass. Mrs. O'Shea is devastatedby the injury as the resulting scarscause her to resign from her job as anews anchor. (She was making over$350,000 a year in that position.)

Mr. and Mrs. O'Shea sue Billy BobBasherooni, Lippy de Loopo, as well asDeep Pockets Golf Club. They also sueLaunch, Inc., the company thatmanufactured Billy Bob's driver, which

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is called "Big Thunder" and is adver-tised as the longest club ever made(one ad said, "When you hit it with thisstick, it won't come down!"). Finally,they bring a claim against WilsonSporting Goods, maker of the UltraCompetition golf ball, which Billy Bobwas bashing on the fateful tee shot.Wilson has claimed publicly that theUltra is the longest ball in golfinghistory and that when hit, it fliesforever.

But that's not all, folks .... A localpro, Sammy Sprain, shows up forqualifying with metal spikes in hisshoes. He has a sizeable local con-tingent following him and rooting forhim to qualify for the Open. DeepPockets is a "spikeless" facility and theUSGA is enforcing that rule for allcompetitors. Sammy Sprain must re-move his spikes and replace them with"alternative" cleats. Wouldn't youknow it ... while walking down a hillon the third hole, Sammy Sprain slipsand ... you guessed it ... sprains hisankle. In the fall, he also twists hisknee and wrenches his back. The injurysidelines him for a year. He sues theclub and the USGA, claiming loss ofincome and reimbursement for medicalbills. Oh yes, he also includes a claimfor pain and suffering and publichumiliation (he has never fallen on agolf course before).

And ... another young professional,Ada Case, shows up and requests a cartso he can ride between shots. Hesuffers from a degenerative nerve dis-order in his left leg and cannot walk18 holes without serious health risk.If provided with a cart, he can swingnormally and is quite an accomplishedplayer, having won several mini-tourevents and having competed on anNCAA championship team while incollege (he used a cart in college, theresult of a special accommodationafforded him by a vote of coaches inhis school's athletic conference andby the NCAA in the collegiate cham-pionship). Ada Case's request for acart is turned down by the USGA. AdaCase proceeds to hire a caddie who

carries his ultra-light "moon" bag andtransports him between shots via useof a sedan chair. Ada Case not onlycompletes the round, but he qualifiesfor the Open. He also threatens tosue so he can use a cart in the Openproper. (Rumor has it he is personalfriends with Tiger Woods and plansto call Tiger as a character witness atthe trial.)

Who wins these lawsuits?

Mr. and Mrs. Rick O'Sheavs. Various Defendants:

1. Billy Bob Basherooni (the golfer)2. Lippy de Loopo (the caddie)3. Deep Pockets (the golf course)4. Launch, Inc. (the club

manufacturer)5. Wilson Sporting Goods (the ball

manufacturer)Did the O'Shea's attorney commit

malpractice?Should the lawyer have sued anyone

else?Do you need any additional infor-

mation?

Sammy Sprain vs.Deep Pockets & USGA:

What does Sammy Sprain have toprove?

Can he win?What defenses does the golf club

have?How about the USGA? Does it have

potential liability?

Ada Case vs. USGA:Does Ada Case have a case?How would you advise the USGA?Does the "ADA" (the Americans

With Disabilities Act, 42 USC ~ 12100,et seq.) apply?

Isn't walking an essential part ofchampionship golf? If not, why not?

Can there be a reasonable accom-modation without everyone riding acart?

Who should decide what the rulesare for elite sporting competitions? Thecourts? Or a ruling athletic body?

The following debate was presented during the USGA Educational Programto investigate the many issues presented in '~ Legal Par Five."by BO LINKS and MIKE VERON

Robert (Bo) Links (left) and Mike Veron.

OURTURF TIP is to stay out ofa courtroom. We know justabout all of the lawyer jokes

that have ever been told. The one thatyou should pay attention to is this: Agood doctor will save your life, a goodaccountant will save your money, agood clergyman will save your soul, butit's going to take one of us to save yourfanny. And that's what we're here totalk about.

Each of the situations to be debatedis presented in the preceding "A LegalPar Five." We're going to demonstratethe potential issues that could be raisedin the various circumstances and tryto raise your awareness about liabilitysituations that should be reviewed atyour golf course.

The Case of Deep Pockets Golf ClubLinks: Let's start with the first case

dealing with Deep Pockets Golf Club.Who wins the lawsuit, Mike?

Veron: Well, on behalf of Mr. andMrs. O'Shea, we're going to file a law-suit against a number of individualsresponsible for her unfortunateinjuries.

First, Mr. and Mrs. O'Shea are goingto sue Billy Bob Basherooni for negli-gence in launching this shot. The legalterm for doing something wrong andbeing at fault is called negligence. BillyBob is negligent because no one wasin a position to better appreciate thelimitations of his game and the extentof his abilities than Billy Bob. No one

forced him to aim where he aimed; noone told him to hit the ball. He knewwho he was putting in danger andwhat danger he was putting them in.So, first and foremost, Billy Bob isresponsible.

Second, Lippy de Loopo, the caddie.A caddie is not just a bag carrier. Acaddie is there to provide advice andcounsel to the player, as he is allowedand encouraged to do under the Rulesof Golf. Lippy de Loopo understoodthe course, the layout, the dangers, andfailed to provide any kind of counsel,advice, or warning to Billy BobBasherooni. He was acting in concertwith Billy Bob and so shares respon-sibility for his egregious deed.

Third is Deep Pockets Golf Club.One of the first things I learned as alawyer, if I'm going to represent aplaintiff who is bringing suit, is that Ineed to look for a deep pocket. BillyBob Basherooni doesn't strike me assomeone who has sound financialmanagement in his background anymore than he has sound golf courseplanning.

Did Deep Pockets Golf Club appre-ciate the danger? It should have. DidDeep Pockets Golf Club provide anyadvice or counseling to the playersagainst attempting such a foolhardything, against putting people in dangerlike my clients, Mr. and Mrs. O'Shea?Should Deep Pockets Golf Club haveforeseen this unfortunate and tragicaffair that has virtually ruined Mrs.

O'Shea's life, that has perhaps de-stroyed her marriage and shattered thelives that she and her husband previ-ously enjoyed and were entitled tocontinue to enjoy? No, Deep PocketsGolf Club did nothing. It blindly dis-regarded the interest of these peoplewho lived next to its property by allow-ing the pursuit of activities that itshould have foreseen would place Mr.and Mrs. O'Shea in harm's way. It didnothing and it bears responsibility forits omissions. It's clear negligence.

I like the name of Deep Pockets, butlet's just suppose that Deep Pocketsisn't deep enough. Well, there's Launch,Inc., the club manufacturer. I got onthe internet and the financial press, andI found out that Launch, Inc., hasan outstanding debt to equity ratio.Launch, Inc., looks like a pretty goodprospect. Well, Launch, Inc., had nobusiness leading someone as unsophis-ticated and foolish as Billy BobBasherooni into thinking he was goingto launch that ball to where it wouldnever come down. That was a ludicrousadvertising claim. We're going to makeLaunch, Inc., responsible for thosekinds of assertions. Ifyou want to makea representation, then you'd better beable to back it up.

Finally, Wilson Sporting Goods -now there's a name that will bring asmile to the face of any plaintiff'slawyer looking for a deep pocket. Myclients wouldn't mind owning a littlebit of Wilson Sporting Goods andbeing able to go on outings with JohnDaly, their spokesman.

Links: He's with Callaway now.Veron: Well, we can name Callaway

as a co-defendant. Wilson SportingGoods manufactures a golf ball, and itsadvertisements say that it's the longestball. We might call Frank Thomas ofthe USGA because he knows who hasthe longest ball. He's no doubt goingto testify that Wilson's Ultra is not thelongest ball and that his own testsdemonstrate that Wilson's claims areperhaps exaggerated.

At any rate, those are our defendants,Bo, and those are the ones we aregoing to pursue a claim against. I'mjust licking my chops because one-third of the gajillion dollars that I'mgoing to get is going to put my childrenthrough college.

MAY/JUNE 1998 9

This clubhouse hasn't even been completed and it's already experiencing brokenwindows from errant golf shots. What's the future hold when there may be someonestanding at the window?

Links: Well, I hope your children goon to some land grant school wherethey give scholarships because zerodivided by three is zero. Let me tellyou why. This is why people don't likelawyers. He's going to own the com-pany, he's going to the deep pocket,and he's going to get into your pocket.Here's the problem and let me start atthe back end first, where a lot oflawyers like to begin.

First, the case on the advertising.We're probably going to beat you onsome summary judgement because thecases say that claims like "you can hitit forever" are not representations offact - they're merely puffing. Youdon't get a warranty with that and youdon't incur liability by saying it. If youdid, you'd never see an ad for anything,and all you would see is lawsuits.You're going to lose on summary judge-ment on both of the claims againstLaunch, Inc., and Wilson SportingGoods.

Before I talk about Billy Bob, thecaddie, and the club, let me tell youabout a theme that Mike and I doagree on. The one thing that you all

have to do in preparing yourself forthese unfortunate events is trying toengage in what lawyers and the in-surance professionals call lossprevention. You should be workingwith your insurance brokers and in-surance people to get safety auditorsout to your club or your course. Theywill do it for you; some will do it forfree and some for a very modest fee.What you need to do is to get an inde-pendent set of eyes looking at yourfacility because you're not qualifiedto make the assessment. You've beenthere too long and you overlook thingsthat you should be seeing.

The other thing that Mike and I tryto tell people is that you need to knowthere are attorneys out there gunningfor you. The Trial Lawyers Associationholds conferences around the countryon how to prepare recreational liabilitycases. What you need to do, howeversafe you feel your facility may be, is askyourself how you would respond ifput on the witness stand and asked,"What did you do to try and preventthis?" I hope you do more than shrugyour shoulders and say, "Gee, I didn't

think it was going to happen." Thereare things you can do, and I'm goingto talk about how my good buddyMike has only told you part of thestory.

In terms of Billy Bob Basherooni,normally a player is not negligent byhitting the ball crooked. The cases saythat over and over again. I will concedeto you that the problem here is: hedidn't hit it crooked. He hit it rightwhere he was aiming, and that's whywe framed the hypothetical situationthis way. The argument is that heheightened the danger. But what he'sgoing to be able to argue is that be-cause the game is so unpredictable,there is no way to control where theball goes - whether he's aiming atsomeone or away from them. In manystates, he probably has a fair shot atwinning summary judgement becausea player who hits a ball does not haveliability unless it's some direct andimmediate danger that he has created.Somebody who's 250 yards away andoff the course property is not in thatzone of danger. I will concede, Mike, itwould be a closer call because he's aim-ing right at them, but he's got a goodchance of beating you on summaryjudgement.

I think the problem you have withBilly Bob Basherooni, and you'vealready highlighted it, is that he has nomoney. Same thing for the caddie. Idon't know anybody who would wastetheir time with the caddie, and I wantto focus on Deep Pockets becausethey're the clients who pay my billand I want to keep them in business.

What you haven't told everybody isthat Deep Pockets put up a 60-footfence to try to keep balls on the course.They can't keep every ball on the golfcourse. What they did was a reasonableprotection under all the circumstances,and this has never happened before.I'm going to argue that my clientattempted to prevent it, attempted tobe reasonable and, moreover, to theextent there is a danger, it was obviousto Mr. and Mrs. O'Shea when theybought their house. They assumed therisk and, if you will, conceded animplied easement to my client to allowgolf balls to fly near their property.

If I'm the defense lawyer, the ques-tion that I raise with all of you is: Do Ihave a cross complaint against somethird party that we haven't talked aboutyet? I think I might. Particularly inCalifornia because in this state there isa case or two on the books that saysthat a golf course architect may have

10 USGA GREEN SECTION RECORD

Get safety auditors out to your golf course to fullyreview potential liabilities before problems arise.

liability if he designs an unsafe golfhole. From the hypothetical, the housewas there and the hole was builtaround it. It's a driveable par four, andthe way to get there is to aim at thehouse. The question is, does the archi-tect have liability? Mike, as the plain-tiff's lawyer, what do you think?

Veron: As a plaintiff's lawyer, ofcourse he has liability, and so doeshis professional liability insurer. InLouisiana we can sue him by directaction, sue the insurer by direct action,and bring them both into the lawsuit.He shares blame because no oneknows better than the architect, whomthe club hired and relied upon, wherethe appropriate location of a greenought to be. He shares responsibilitywith that club for locating the green ina place that put the O'Sheas in peril.There's a maxim in the law that yourrights end where mine begin.

The architect used the air spaceabove my home, which I can argue Ihave a right to use. Instead of usingyour property, you've chosen to use myproperty, place me in peril, and you'veincurred responsibility. Certainly, a golfcourse architect, in designing golfcourses, naturally thinks first and fore-most about the shots that will be playedat the hole. That's how he decideswhere to position bunkers, how toshape the green, where to place thetees, where trees ought to be, and howto take advantage of the landscape.There is no question that if DeepPockets filed what we call a third-partydemand against the golf course archi-tect, he should be considered to sharein the responsibility.

Links: Mike, let me ask a questionabout Billy Bob. Would you be mak-ing an argument that he should haveyelled "fore" and has liability for failingto do so?

Veron: That's an excellent point.Some jurisdictions say while strikingsomeone with a golf ball is not negli-gence because even the world's finestplayers do not have absolute controlover the direction their golf ball willtake, failing to warn someone who is ina zone of danger is an independent actof negligence that will subject you toliability. There are cases in Louisianathat make this point. I wrote a GreenSection Record article (September/October, 1990, "Liability on the GolfCourse") a number of years ago thatdiscussed them.

Links: In California you're going tolose on that point. A case came out lastyear that said even though the yelling

of "fore" is part of the etiquette of thegame, it doesn't rise to a legal duty.The case in question involved a womanwho was on the sixth fairway of acourse, and a player teeing off on thefifth hole hooked a ball that hit her inthe jaw. She suffered damages, sued,and the contention was raised that theplayer didn't yell "fore." The courtsaid that wasn't a breach of duty andthe failure to yell "fore" didn't createliability. That's in California.

One of the things you can see is thatthe law varies from state to state. Thisis an ad for the lawyers. You have gotto check with your own local peopleto find out what's going to apply inyour jurisdiction.

Veron: California is obviously a moregolf-friendly state than Louisiana.

Links: In California we've gottensome real good law in the last fiveyears on assumption of risk, and par-ticularly as it relates to the game ofgolf. As I mentioned, seminars wereheld around the country on recrea-tionalliability. The last one I know ofwas held about six years ago. I thinkthe reason the cases are thinning outis because judges have learned thatthese recreational activities we cherishso much are in danger from some ofthese liability issues.

Veron: That's a good point. This issomething for your organizations toconsider. Many state golf associations,regional golf associations, and profes-sional organizations are consideringgoing to the state legislatures aridgetting special immunities passed. In

Louisiana, for example, there arespecial immunities for certain recrea-tional properties that are not-for-profitactivities and therefore different rulesmay apply. All the more reason toconsult an attorney in your jurisdictionif a particular problem arises.

Links: I want to leave one last com-ment. You understand that this hypo-thetical case is framed in terms of agolf ball going off the property. Thecase of somebody getting hit while onthe property pretty much is going to getresolved by assumption of the risk. Theproblem I see on course after course isthis. There is a bigger, more substantialfence or protective device on an interiordriving range to protect the playerswalking on the ninth or 18th holesthan there is at the course boundaryto protect people driving on the high-way. One of these days a stray golf ballis going to hit a van of kids comingback from the science fair, it is goingto flip over, some of them are going todie, and some of them are going tosuffer catastrophic injuries. The argu-ment will be made that you were moreconcerned about protecting your mem-bers on the ninth and 18th holes thanyou were about protecting the generalpublic from a known danger. Thefence and the protection at your borderought to be at least as great as whatyou afford your golfers who walk nearthe driving ranges.

The Case of Sammy SprainVeron: There are several questions

that I would explore as a counsel for

MAY/JUNE 1998 11

Sammy Sprain. First of all, the manu-facturer bears the most responsibilityfor any unreasonably dangerous con-dition in its product that causes injury.That is pretty much a universal prin-ciple of product liability law.

In going to a new system of alterna-tive footwear, the manufacturer of thefootwear bears some responsibility towarn those who use its product that itmay be slippery. Did the manufacturerexplore that point? Did the manufac-turer use slip-resistant tests that ex-plored the extent to which the productit was putting in golfers' hands, orrather on their feet, would cause slip-page, was more hazardous in someform or fashion, and that it wasforeseeable that it would cause injurythan the existing situation? If itdidn't, and simply in its blind pursuitof profit and greed sent a productout and put it on the feet of golferswho unsuspectingly wore that product,not aware of the hazards and thedangers in which they were beingplaced, then it bears responsibility. Iwould start there, but I wouldn't stopthere.

If the club, like the first scenario, haddeep pockets, I'd want to look at theclub or golf course facility and say,"Did you investigate this? Should youhave known that there was a danger,and if you should, what did you do towarn golfers of the problem? Are yougoing to a spikeless policy withoutexploring it? Are you encouraging, ifnot requiring, golfers at your facility toput these hazardous products on theirfeet and expose them to danger with-out even bothering to investigate andwarn them of this danger? If you are,then you bear responsibility."

There are two important principleswhen you deal with this kind of situ-ation. When you're faced with ahazard, number one, eliminate it ifyou can. Number two, if you cannoteliminate it, then warn.

You could have eliminated it. Youdon't have to go to spikeless, or to aspecific type of spikeless cleat. You canconduct an investigation and say, "Wedon't allow this kind because it exposesyou to danger." But, number two, evenif you didn't do that, did you make aneffort to warn the player? Just like themanufacturer, did you say, "This is alittle more slippery. Please be careful."

It's one thing to say it works well onthe greens or fairways. It's quite an-other, though, if it causes you to slipleaving the locker room, in the lockerroom or restroom, on the concrete

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If you were put on the witness stand, could you completely answer the question,"What did you do to try and prevent this potential accident from happening?"

Obviously, this well-worn path is a sure sign that these steps aren't in goodenough condition for golfers to use.

aprons when you cross the practiceputting green to the first tee, on the cartpaths if you have concrete cart paths,or on any kind of slippery metal sur-faces. Does it make a difference if it'swet as opposed to dry? Before you putpeople in situations that expose themto danger, you have got to investigatethese things and inform them of thedangers.

Links: There is one easy way for allof us to never have to worry about thiskind of problem. I have not checkedthe USGA's entry blank recently; I'mnot that good of a player. There oughtto be on that entry blank a release ofliability. When players register to par-ticipate in a USGA championship,regional tournament, or club tourna-ment, by signing the entry blank theyrelease the USGA from liability. Now,if that happens, we're out of Dodge.There's no case. We're done.

Secondly, I'm probably going tobeat Mike on summary judgement heretoo, by arguing that slipping and fallingis one of the risks that is associated withthe game and it is assumed by theplayer. Slipping and falling on the golfcourse is nothing new if you talk to thepeople in the insurance industry. Theywill tell you that one of the top threeclaims, aside from carts and bridges, ispeople falling on golf courses. It's beenthat way for 30 years with metal spikes.In fact, we're going to demonstrate tothe court and to the jury that the foot-wear Mr. Sprain was using providesmore traction than a six-millimetermetal spike in a standardized frictiontest. We're going to prove that throughexpert testimony. The scientific evi-dence shows that spikeless is betterthan metal spikes because it providesbetter footing on slick concrete sur-faces.

We're also going to prove the historyof how this footwear was invented. Itwas invented in Idaho for use duringthe winter when there was ice on thegolf course. We also are going to prove,and we don't mean anything unkindtoward Mr. Sprain in this regard, buteveryone else walked down that hill.They didn't fall and there can be a lotof reasons for slipping and falling.Just because he fell doesn't mean it wasthe shoes. We're going to show that theproduct he used, that is, if you get bythe release and you get by the assump-tion of risk, was not defective. On thisissue of a warning, we're going to beatyou before you get to a jury because youdon't have to warn about obvioushazards that are known to everyone.

Zero divided by three is still zero.Veron: Now, our situation is not far-

fetched. Counselor would have youbelieve, ladies and gentlemen of thejury, that no one ever recovers damagesfor a slip and fall. The truth is peopleare awarded money for slips and fallsevery day because it's not their fault. It'sbecause someone else created thecondition that caused them to fall.

What made this country great waspeople accepting responsibility, andthis case is about responsibility. Thedefendants in this case want to avoidresponsibility. They want to take the

Take the extra steps to make golfersaware of potentially slippery areas onthe golf course.

profits from their activities. They wantthe green fees, your hamburger prices,your beer prices, they want you to buygolf balls in the pro shop, and for youto rent carts. They want you to linetheir pockets with profit.

But, if in their blind pursuit of profitthey create an unsafe condition, fail tolook out for your best interest, or exer-cise even the smallest amount of careand diligence so that you can use theirfacilities safely, then they want to turntheir backs on you. And, if you slipand fall, and if you sustain a seriousback injury, and you can never playgolf again because you've had a backfusion, or you can never work again,they don't want to have a thing to dowith that. They want to say, thank youvery much, too bad, guess you won'tbe back next week.

Ice rinks don't send you outside towalk in the parking lot in their iceskates. We're not talking about fallingon the golf course; we're talking aboutfalling in areas where they know you'regoing to be traveling in the shoes theyrequire you to wear. If they're going

to require them, maybe they ought totell you not to put them on until you'restanding on the first tee.

With respect to that expert, we de-posed him and we found out that hedidn't even attend college; he doesn'thave that engineering degree he claimshe has, and he's not going to be allowedto testify. We have a motion in front ofthe court to strike his testim6ny.

Links: Let me say, ladies and gentle-men, before you make a rich manricher, I ask you to consider whatposition my client would have been inhad it required metal spikes and Mr.Veron's client had fallen down on theconcrete. We would have been accusedof requiring him to wear footwear thatwas slick on the concrete.

If we provide a rule that says wewant to use this kind of footwear, oneof the benefits being the improvementof our golf course, but another of thebenefits is it provides better footing onthe harder, more dangerous surfaces,are we to be faulted for that? We can'twin. It doesn't matter what we do. Inthe end, you have to ask yourselves,ladies and gentlemen of the jury, doyou want to be able to go down to theplayground and play basketball, haveyour children go to the ice skating rink,play that golf course, play touch foot-ball, go sailing, throw horseshoes, or doany of these things? If my esteemedcolleague has it his way, you're allgoing to be indoors doing nothing.What I ask you to consider is that myclient was reasonable and responsibleand did nothing wrong.

The Ada CaseLet's begin with a few things about

this case. This is not far fetched becausethey are trying a lawsuit in Eugene,Oregon, right now. This hypotheticalcase is designed to highlight the issues.While we're going to debate this, I wantto say something at the start to set thetone.

Anybody who thinks this is an easyquestion is wrong. This is a very diffi-cult, serious, sensitive question and itaffects a lot of people. There are peoplewho can walk and people who can't. Itaffects the administration of the game.It's about fairness, competition, and alot of things. It's a case in many respectsin which both sides are right.What wewant to do, hopefully, is to sensitize youto these issues and to have you experi-ence, whatever your view may be, thatthere is another side to this question.

Links: From a plaintiff's perspective,this case is about principles, not money.

MAY/JUNE 1998 13

Paying attention to the little details is important to preventing injury on the golfcourse. Be sure to correct problems as soon as they arise to avoid potential problems.

The statute we're talking about, like theCivil Rights Act of 1964, is literally oneof the great charters of human dignity.It is there to address a condition that iswrong and has been wrong for a long,long time. The principle is that some-one who has ability should not be heldback because of a legally defined andrecognized disability. If it is possible tomake a reasonable accommodation,that person should not be barred fromthe right to earn a living in the careerof his choice. The first question thiscourt has to address is whether theAmericans with Disabilities Act, whichwe all refer to as the ADA, applies inthis case. I suggest to you that it clearlydoes for a number of reasons.

First, the PGA Tour is not a privateclub; it's a public business. In fact,it's a very big business. It operates itsevents at public facilities, which arecovered as public accommodationsunder the statute. When it runs thequalifying school, it administers what isin essence an employment test as the

14 USGA GREEN SECTION RECORD

qualification mechanism. This statutemakes clear beyond question, you can-not administer such an employmentexamination in a discriminatory man-ner. You can't bar somebody solelybecause of a disability when you canreasonably accommodate him andenable him to take the test. The PGATour acts much like a labor organi-zation - representing its players,negotiating rights for them, offeringthem up to tournament sponsors, andhandling the rights to their image.

Lastly, we're going to make an argu-ment that the PGA Tour is, in fact, myclient's employer. Yes, they do not con-trol how he plays a golf shot, or takewithholding from his earnings. Butwith every other test, they sure look likean employer. They tell him when toshow up, when to sign autographs,what he can say and what he can't say,and they fine him if he says the wrongthings about the game. They control hisimage; they have a dress code; they tellhim he's got to employ his best efforts;

they control and regulate the standardsfor his caddie. They do all kinds ofthings - very much like an employer.

The ultimate question we get to is,Can we reasonably accommodate myclient? This case is a poster boy forreasonable accommodation becauseevery facility that this defendant utilizesfor tournaments has a cart barn andthe carts are in that barn. It doesn'tcost any money or take any time togive my client a cart. Now, I quite agreethat this statute does not require, norpermit, the fundamental alteration ofan employment setting. I know theargument has been made that theADA was never intended to apply to aprofessional sports event. Of course, Isuggest that if that were so true, howcome they didn't write such an exemp-tion into the law that took them nineyears to write? I don't think they justmissed it.

Let me talk for a moment about anargument that's sure to come up - theargument that walking is part of thegame. You know, I read yesterday in thepaper that one of my heroes, ArnoldPalmer, is quoted as saying that walkingis part of the integrity of the game. I sayto you and to Mr. Palmer, with all therespect I have for him, that his state-ment, if quoted accurately, is an insultto any person who can't walle Youdon't have to walk to have integrity andyou don't have to walk to play golf withintegrity. You know, Casey Martin hada cart the last two years of his collegecompetition and everything workedout fine. Nobody argued that he had anunfair advantage on a warm day orthat it wasn't right. He thrilled peoplefrom the Atlantic to the Pacific withwhat he could do and he showed usall that you don't measure a man'scharacter by the length of his stride.You measure it by his heart.

I will show you that the Rules ofGolf support my position. The rulesdon't say anything about how a playergets between shots. They define golfas propelling the ball by a stroke or aseries of strokes until it gets into thehole. In fact, the USGA publishes aguide on the conduct of competitionsand it says nothing in the Rules thatprevents transportation, but if the com-mittee desires to do so, it can adopta special condition. If walking is sofundamental, why does it take a"special condition" to require it? Didthey just miss it? I don't think so.

To make one last argument, I'mgoing to show that the Rules of Golfwere specifically modified to cut out my

Fuel storage is a major environmental issue for most golf courses. Containmentfor the storage containers is becoming a basic minimum to reduce the potentialfor environmental damage.

client. Until 1996, the special conditionI've referred to said that a player "shallnot use motorized transportation."Well, under that condition, my clientcould have his caddie carry him be-tween shots - it would be perfectlylegal. If he could do that, let's stop thecharade. Let him have a cart. We don'tneed to protect the image of a walkinggolfer. The condition was amended in1996 or thereabouts, and it now saysthe player "shall walk at all timesduring a stipulated round."

I give you one last thought. I quoteTom Lehman, "This guy's got an awfullot of talent. Why don't we just let himplay."

Veron: We have an expression inthe law that hard cases make bad law.It's an attempt to express the truismthat when we let our emotions overridelogic and our sense of the big picture,we start carving out special exceptionsbecause we feel sYmpathy. Then wejeopardize the big picture and wejeopardize a great game that has existedfor 400 years. This case is about tryingto fix something that ain't broke. Howmany times in the history of thiscountry are we going to do that andpay the price? When will we learn ourlesson? What made this country greatwas a pioneering spirit that said, "Iwill not be accommodated but I willovercome in some form or fashio,n."What does that mean? It means that ifCasey Martin can't overcome his par-ticular disability, his particular condi-tion, just as I can't overcome mine,which is that I can't control the flightof a golf b~, then perhaps he willlearn from that struggle and like somany before him and so many afterhim, he will grow and he will findanother path to try.

My father was in the hospital fortwo years from the ages of nine to 11.When he came home, his left leg wasfour-and-a-half inches shorter thanthe other. He couldn't run and keepup with his plaYmates; he'd go homeand cry. That's a true story. A life asan athlete for him was over. Herechanneled his efforts. At the age of32, he entered college, went to lawschool, became a judge, and at thetime of his death was a Federal judge.He was the only person out of eightchildren in his family ever to attendcollege. He often said that if it werenot for that condition, he may neverhave found the way.

I'm going to tell you that this case isnot about Casey Martin, but it's abouta grand and glorious game that is, as

Arnold Palmer has said correctly, "thegreatest game ever invented." I'm go-ing to tell you something, ladies andgentlemen of the jury, about CaseyMartin - you're going to like himduring this trial. I like him. You wouldbe wrong not to feel sympathy for him.You would be wrong not to wish aswe do that he didn't have this problem,but this case is not about Casey Martinand this is not about SYmpathy. He'snot here seeking your sympathy; hehas that without filing a lawsuit. He ishere to change the face of golf.

This is about a great game that bydefinition tests your abilities. Whether

it's a leg condition or some other con-dition' whether it's a deficiency ofneuromuscular skills and anatomy,that is what the game tests. If we beginto let the government run this greatgame instead of the guardians whohave protected this game, preserved itsintegrity and made it the great game itis today, then where will we be?

Do we really have confidence thatthe government can do a better job?Look at the government's record. Isthere anything that the governmentdoes better than private industry?Maybe there are those who have thatconfidence, but I certainly don't. Whatnext? That's what I mean about hardcases make bad law. Once we startsliding down that slope, where do youdraw the line? I don't hit the ballparticularly straight - that is my dis-

ability and impairment. Do I get tocarry a weed eater into the rough? Idon't putt particularly well. Who theheck says that hole needs to be onlyfour-and-a-quarter inches wide?

There are those who believe that ourgovernment should concern itself withdefending our borders and little else.When it comes to the ADA you cansearch the Congressional Record invain and you will never find anymention therein of any debate orsuggestion by Senator Harkin or any-one else who sponsored this bill thatit would ever apply to a professionalsports enterprise. It is simply fiction

to manufacture such a legislativeintent.

Let's talk for a moment about theequities in the case since that is theplaintiff's entire case. It is that youshould feel sorry for him, that youshould turn back all of the Rules and400 years of tradition.

When Casey Martin can name asingle major championship in golf in400 years that used carts, then I'll beprepared to reevaluate my position.Has golf been cruel to Casey Martin?Casey Martin has competed, has aglittering resume, and received fouryears at one of the most prominenteducational institutions in the world,free of charge, because of golf.

Is Casey Martin a victim? If CaseyMartin is a victim, ladies and gentle-men, then we are all victims because

MAY/JUNE 1998 15

Trees play an important role on the golf course, but they must be maintained with acarefully managed tree care program. Existing trees with structural problems shouldbe removed before they become a potential liability to golfers.

there are but a precious few who canwithstand the challenges and becomechampions. There are some who aregifted, there are many whom we allenvy. They were born with tremendoustalent, great bodies, and endurance.They were born with skills none of ushas. They all worked to some degree todevelop those, but let's face it, we livein an imperfect world. It's time that westop trying to manufacture perfectionand manufacture things that we can-not. You cannot legislate morality andyou cannot change physical science.Those rules take precedence. There areno golf carts in Scotland; the game wasnot created for golf carts. That is, manybelieve, an unfortunate Americani-zation of the game.

But this is not about Casey Martin'sright to play golf. He can play golf everyday for the rest of his life riding a cart.This is about defining champions, andthis is about championships in golf.Yes, I would love to win the u.S. Open.I was not blessed with the talent andall the physical skills that are necessaryto achieve it. And in that respect,

Casey Martin is unfortunately like somany of the rest of us.

But in another respect, Casey Martinis so much, much more fortunate thanwe are. He has already achieved somuch more than any of us can hopeto achieve. It's time to celebrate thatand rejoice in it. Respect not only CaseyMartin, but the great game of golf.And for those reasons, this is whywe believe spectators, not competitors,ought to be accommodated at all cham-pionships. We believe that it will de-mean those championships if the sur-vival of the fittest is jeopardized. Webelieve that a championship must testall of the skills necessary, not juststriking a ball, but walking to it, findingit, braving the elements. The Rules ofGolf say, "a golfer may not acceptphysical protection from the elements,"and there's a principle there that hasbeen sacred since the first Scotsmanstruck a golf ball 400 years ago. In thename of this wonderful young man,let's not abandon all of that.

Links: The plaintiff usually gets thelast word at the courthouse. Let me try

to summarize here. You know, I haveone other client besides Casey Martin,and her name is Rosa Parks. I supposeif we were arguing her case some 40years ago, you'd be telling us of thevirtues of riding at the back of the busand how she'd just have to struggle.She'd be a better person for it.

My client is not a victim; he's ahuman being. We're not asking you tochange the rules; we're asking youto apply them as they've existed. Ofcourse, this case hasn't come up before.Baseball didn't have Jackie Robinsonuntil 1947, and there were those thenwho said that it would ruin MajorLeague Baseball.

In closing, I want to say two things.I hear this argument about the testingof character and how we want tomeasure a player's endurance. If youwant a test, make them carry theirown clubs, make them read their ownputts, make them figure their ownyardage, and make them play 36 holesthe last day. You know, all this stuffabout endurance is ridiculous. It'sabout money, as my esteemed colleagueknows so well. And lastly, let me say tothe PGA Tour, the best test of charac-ter is when a man practices what hepreaches. Anything is possible. And tomy friends at the USGA, we don't callit the u.S. Open for nothing. Don'tclose it off to my client.

Closing RemarksWe hope we have sensitized you

and that now you understand howdifficult this issue is. Neither one ofus, whatever our convictions may be,would ever want to see the game losein court or anywhere else, becausethis is the greatest game, the greatestendeavor that mankind has ever de-vised to allow a person, male or female,young or old, disabled or full-bodied, tofind out what kind of character he orshe has. That's why this game is sogreat. That's why it's been so great, andthat's why forever it will be great.

ROBERf "BO" LINKS practices law inSan Francisco, California. He hashandled golf course facility injury casesand liability issues. Bo is a member of theUSGA Green Section Committee. MIKEVERON is an active trial lawyer, based inLake Charles, Louisiana, specializing inproduct liability and personal injury. Heis active on the USGA Sectional AffairsCommittee and is a former volunteer onthe Green Section Committee.

16 USGA GREEN SECTION RECORD