The Lightning Hazard: Whose Responsibility? Golf Market Today - January/February 1995 By Gary M. Crist, Esq. Lightning strikes pose a significant hazard to golfers and golf course property. Indeed, it is estimated that up to one half of all lightning fatalities occur on golf courses. Nevertheless, the frightening reality is that all too many golfers continue to play even after they have "heard the thunder" or noted lightning "in the distance." In recognition of the significance of the lightning hazard issue facing the golf industry, NGF recently concluded a survey of member golf facilities. Its intent was to get industry feedback as to the level of awareness among facility operators regarding the lightning hazard and the availability of lightning risk management resources, e.g., warning signs, lightning predicter systems, etc. The results of the survey are interesting. The "average" respondent identified lightning as a "medium level" threat to their facility. (Average response: 4.6 on a scale of 0 to 10). The respondents averaged two incidents per year of damage to trees, irrigation systems or buildings. About half the facilities surveyed maintain lightning warning systems and about one third have course evacuation policies. The survey also indicated that educational programs and information regarding the lightning hazard would be beneficial. The Legal View In terms of legal liability, lightning is treated as an "Act of God." Accordingly, in losses due solely to the lightning strike, there can be no recovery in court. However, losses involving lightning, including deaths and injuries due to lightning strikes at a golf course, sometimes are not solely due to the lightning. In some cases, other factors combine with the lightning bolt to produce the tragedy. Examples of these "other factors" are (1) the victim's failure to appreciate the danger of lightning, (2) the victim's failure to take proper cover and (3) the unavailability of shelter. In these situations, the liability issue gets more complicated. It is wrong to assume that all deaths, injuries and damages caused by lightning are, since they involve "Acts of God," no one's legal responsibility. A 1991 decision of the Tennessee Supreme Court, Harries v. State of Tennessee, 808 SW 2d 4 1, discussed legal liability in the case of a golfer being struck by lightning on the golf course. In the Hames case, the court found the course operator not responsible for the golfer's death. (The estate of the deceased golfer had sued to recover damages for "wrongful death"). The court reasoned that although the course operator was negligent in not having posted lightning warning signs, not having lightning shelters and not maintaining a course of evacuation policy, such negligence was not the "proximate (legal) cause" of the death. The Flip Side To the extent the Hames decision is precedent for the position that golf facility operators are not legally responsible for lightning caused deaths, it is, of course, beneficial to the industry. However, it does not mean that in other situations operators will also be determined not to be legally responsible. Other fact patterns could produce different legal results. (Indeed the Hams Supreme Court decision reversed a lower court decision which had found the operator to be liable for Hams' death). Each of the conclusions used by the court to exonerate the operator is at minimum questionable, i.e., (1) that it is common knowledge that lightning is hazardous to golfers, (2) that thunder is the loudest, most accurate lightning warning "device" and (3) that there is no industry standard regarding course evacuation during lightning storms. As stated earlier, all too many golfers prove their failure to appreciate the danger of lightning by continuing to play long after they should take cover. Also, thunder is a poor measure of the proximity or potentiality of lightning. The thunderclap at "ground zero" is generally coincident with the lightning strike. Additionally, "bolts from the blue," lightning strikes from non-stormy, thunder-free "overhead" conditions, are well documented. With respect to the lack of industry standards regarding evacuation procedures, while it is true that such procedures are not universally in place, many of the nation's premier facilities are implementing the use of lightning predicter equipment and course evacuation and related lightning risk management policies. Warning System Technology A particularly noteworthy lightning risk management resource is the Thor Guard lightning predicter system. Thor Guard has been used with very satisfactory results at Tournament Players Clubs, Augusta National, Marriott facilities around the country, as well as at PGA TOUR, PGA and LPGA events. The continued growth of the numbers of facilities adopting the use of Thor Guard and similar equipment can only serve to improve the golf industry's ability to deal properly with the lightning hazard and further promote the safety and welfare of the golfing public. While it should be recognized that no system of warnings, shelters or evacuation procedures can ever completely manage the lightning hazard, reasonable safety precautions are appropriate and potentially life saving. The posting of appropriate lightning warnings, such as those available from the USGA, is within the capability of all golf course operators. The erection of shelters and use of lightning predicter systems now offered to the industry are other lightning risk management resources which are available at reasonable cost. Lightning storms are a threat to the safety of the golfing public. The industry should be applauded for the positive steps being taken to manage the risks lightning poses more effectively. The continuation of these efforts will promote safety and solidify the golf industry's reputation for being early to implement progressive management practices. Mr. Crist is an attorney currently practicing in West Palm Beach, Fla. who also serves as NGF's general counsel.