A gruesome injury at the 42nd Ryder Cup held at the Albatros Course of Le Golf National in Guyancourt, France, last Friday raises new questions about spectator safety and the legal consequences of accidents involving errant golf balls.
Corine Remande, 49, was watching the tournament with her husband when a tee shot mishit by U.S. golfer Brooks Koepka on the par-4 No. 6 hit her in the right eye. Remande was rushed to a local hospital and treated for a fractured eye-socket and a badly damaged eye. Remande has since told media that her injury was tantamount to her eyeball "exploding." Unfortunately, doctors have informed Remande that she has permanently lost vision and no treatment will prove restorative.
Koepka, the No. 3 golfer in the world, immediately rushed to Remande and apologized for the accident. While the exact proximity between Remande and Koepka remains uncertain, he notes that “it’s hard to control a golf ball, especially for 300 yards, and a lot of times the fans are close to the fairway.” It is clear that Remande was some distance from Koepka and thus, with adequate warning, she might have had enough time to turn away and protect her face.
Remande, however, claims that there was “no warning shout from the course official when the ball was heading towards the crowd.” It is customary that a golfer and spectators yell “fore” to warn those nearby of an approaching ball. For his part, Koepka tells media that him yelling “fore” might not have made any difference: "You can yell 'fore' but it doesn't matter from 300 yards, you can't hear it." Reports indicate that some people shouted “fore” after Koepka struck the ball. However, it does not appear that Remande heard these warnings or knew the trajectory of the flying ball in relationship to her location.
In media interviews, Remande warns that she is contemplating legal action. Assuming she does not reach an out-of-court settlement with tournament organizers, she could file a negligence lawsuit against the parties who were responsible for organizing and operating the tournament. In such a lawsuit, Remande would claim that the organizers unreasonably failed to ensure the safety of spectators. The PGA European Tour, which along with the PGA of America, is part of a joint venture that sponsors the Ryder Cup and has announced that it will investigate the incident. Expect Remande to assert that any conclusions reached by tournament organizers should be viewed in the proper light: Those organizers have an incentive to minimize the possibility of liability and therefore the public ought to discount conclusions that tend to exonerate organizers.
A brief primer on the law of golf course eye injuries
Should Remande file a lawsuit, the filing would be in a French court. In the United States, such a lawsuit would follow a number of similar cases involving golfers and spectators.
Traditionally, lawsuits brought by injured golfers against fellow golfers have failed. Courts often opine that golfers assume the possibility of golf ball injuries as an inherent risk of the sport. Consider Jenks v. McGranaghan, a case from New York in 1972. It involved a golfer, Charles Jenks, who was injured while walking from the 9th tee to grab a club from his golf bag. The injury was ghastly: Jenks was suddenly struck in the left eye by an errant ball flying at a high-speed. That ball had been hit by fellow golfer Donald McGranaghan from the tee of the eighth green. Jenks became partly blinded by the injury and then sued McGranaghan for negligence. Jenks reasoned that McGranaghan was negligent on account of his failure to warn Jenks before his shot.
In response, McGranaghan noted that he and other members of his group had in fact yelled “fore” after the shot, though Jenks stressed that he could not hear them yell from his location. McGranaghan also asserted that he had no duty to pre-warn other golfers before teeing off as there is no custom in golf to do so.
The court sided with McGranaghan, emphasizing that every golfer shanks a shot from time-to-time and that McGranaghan had no obligation to pre-warn Jenks. The court also emphasized that those on a golf course assume certain risks of danger.
Courts have shown a greater willingness to entertain the possibility of premises liability for eye injuries when the person injured is not a fellow golfer but rather a spectator. Spectators are business invitees of golf clubs and tournament organizers in that spectators are on the course for a business purpose—to watch a tournament and, possibly, buy apparel, merchandise and concessions.
Grisim v. Tapemark Charity Pro-Am Golf Tournament, which was heard by the Minnesota courts in the 1980’s, illustrates spectator injury litigation. Mary Grisim had attended a tournament. At the 18th hole, she sat down under a tree in an area specifically designated for spectators. Given that designation, Grisim assumed she would be safe. That proved to be the wrong assumption: within minutes, a golfer hit a ball that hooked badly and struck Grisim in the left eye. Grisim’s eye was so severely damaged that it had to be removed.
Grisim then sued the tournament and the golfer. While the courts that reviewed the case dismissed the possibility of liability on the part of the golfer—Grisim’s injury was obviously the result of an accident—they permitted a jury to consider the quality of safety measures undertaken by the course in regard to spectators. In other words, Grisim had not automatically “assumed the risk” of accidental injury as an inherent risk in the game. Instead, she could argue that the club was negligent in failing to protect her. To that end, she insisted that the course acted recklessly in where they permitted spectators to traverse in relationship to the course and the activity of golfers.
Similarly, in Duffy v. Midlothian Country Club, Alice Duffy was able to present her case to a jury. Duffy was a spectator at a professional golf tournament in Illinois in 1973. While eating food with her friends in a concession area, Duffy was hit in the right eye by an errant golf ball. The damage caused her to completely lose sight in that eye. After a trial court had granted summary judgment in favor of the club (meaning the trial court had denied Duffy a chance to make her case to jurors), an appellate court reversed, finding a genuine issue of material fact. Namely, the appellate court reasoned that jurors should evaluate the reasonableness of the course’s decision to locate the concession area where balls frequently landed.
Outlining Remande’s potential case and the tournament’s potential defenses
In a lawsuit, Remande would gain a greater chance of prevailing if she can prove that the area where she was permitted to stand was unreasonably dangerous. To help prove such a point, Remande might turn to the testimony of experts on golf course design. She could also refer to any studies about the course as those studies relate to unnecessary hazards. As a hypothetical, perhaps evidence shows that golf balls travel to her location at an anonymously high frequency. If so, such a frequency might place spectators in an excessively risky situation. Therefore, Remande would argue, tournament organizers were on notice of an unreasonable danger and failed to take the necessary remedial measures. Or maybe the Albatros Course lacked an adequate system of warning spectators in that location of oncoming balls. These are the kinds of points Remande would want to raise in a litigation.
In contrast, tournament organizers would contend that they took all reasonable measures. They would claim that they followed industry custom and in preparing for the tournament, retained the services of experts who are knowledgeable about spectator safety. The tournament would also want to describe the incident as a tragic but nonetheless fluke accident. This is important because reasonable measures do not always prevent fluke accidents. Courts, in turn, typically do not hold defendants accountable if they undertook such reasonable measures—meaning fluke accidents usually do not lead to liability. To bolster that point, organizers would prefer to show that golf balls almost never hit where Remande was standing. This would seem especially true when world-class golfers like Koepka are playing. Tournament organizers might also contend that if such spectator lawsuits succeed, tournament organizers would have no choice but to require that spectators stand far from the course. Such physical distance from the game might alienate golf fans and interfere with the fan experience.
As a supplemental defense argument, the organizers can cite contractual disclaimers in Ryder Cup tickets. It has been reported that such tickets contain waivers of liability for spectator injuries caused by golf balls and for other predictable hazards. Case closed? Not so fast. While defendants sometimes believe, or perhaps want to believe, that they can disclaim any and all liability through a waiver—such as the parking garage that warns customers they assume all risk of damage to their car—in reality that is not always the case. In order to be enforceable, waivers usually need to be understandable to the typical person. They also need to be clearly visible, rather than obscured in small print or buried in detail. Waivers are also usually not enforceable when the defendant engaged in intentional wrongdoing, fraud and other kinds of misconduct. That point is true in the U.S. legal system and also in the French legal system. It will be interesting to see if Remande or her attorney can establish the necessary evidence and testimony to overcome a waiver.
Rather than embark on a lengthy and high-profile litigation, Ryder Cup organizers and Remande might be able to settle her pending claims out-of-court. To that point, the European Tour has issued a statement expressing that it will offer Remande “support for as long as necessary.” This statement goes on to define “support” as including “on-course treatment [and] helping with the logistics of repatriation, including providing a transfer for the family from Paris to Lyon.” Remande might demand an amount of money that far eclipses “support” since she appears to believe she was the victim of negligence and she is suffering the loss of half of her eyesight—an unquestionably catastrophic and life-altering injury. Still, it seems that the two sides are engaged in constructive communication. If that is accurate, chances are they will eventually negotiate a settlement.
SI will keep you posted on the pending litigation.
Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.