This inquiry poses a question that has little case law analysis. The case analyzed here is from New Jersey , Van Maussner v. Atlantic City Country Club et al. , 299 N.J.Super. 535, 691 A.2d 826-837, (Sup. Ct. NJ, 1997). The other case on point (cited and quoted extensively in Van Maussner is Hames v. State of Tennessee , 808 S.W.2d 41 ( Tenn. 1991).

In Maussner , a golfer was struck by lightning and suffered permanent damage. The golf course lightning warning system consisted on watching weather channels and the like and sending out someone in a cart to find golfers and warn them to evacuate if lightning developed. The Plaintiff received a verbal notification of lightning but was struck as he proceeded to the club house. The golf course had no shelters (lightning-proof or otherwise), no warning system, and possibly no signs articulating an evacuation plan in the event of lightning (the Plaintiff said there were no posters; Club said there were). Plaintiff suffered permanent damage and sued in negligence in New Jersey Superior Court.

Procedurally, the Maussner case came up before the court on a motion for summary judgment. Because there were issues of material fact (facts that tend to show the existence or non-existence of a fact that can influence the outcome on a legal element of the case), summary judgment was denied, and the matter was remanded for a trial on the issues.

The liability of a golf course for lightning strikes is a new issue with little case law guidance. One might say it is an emerging body of law. The Maussner court specifically left this issue for another case ( Maussner at 826, 835). So far, no jurisdiction has recognized a duty to protect golfers from lightning. ( Maussner at 830)

NEGLIGENCE

The traditional analysis of a cause of action in negligence uses the Four Elements of the tort of Negligence:

I. Existence of a reasonable standard of care to protect persons from harm;

II. Breach of this duty of reasonable care;

III. Damages resulting from the breach; AND

IV. Proximate Cause - or a chain of causation between the breach of the standard of care and the damages which is not so attenuated or broken that courts do not recognize the causal link. Prosser on Torts , is a good source for this black letter law.

First this memorandum will analyze the issue using these traditional standards. Second, this memorandum will use the standard articulated by the New Jersey Superior Court in Maussner . Both standards will be used because courts in other jurisdictions may use either the traditional elements or the New Jersey standard for their analysis.

All four elements (or alternate standards) must be demonstrated in order for the plaintiff to prevail. If any one of the elements is not proven, the suit fails.

FACTS

In the Maussner case, a course had no lightning detection system with its warning system nor shelters (lightning-proof or otherwise). The course plan for lightning was to monitor weather channels and National Weather Service. Then if lightning were detected, an employee of the course would go out and find golfers and warn them of the presence of lightning. In the subject case, lightning was detected, the employee went out on the course, and warning was given. The course had no shelters, but believed all knew that they could retreat to houses adjacent to the course. Whether a poster detailing these plans was timely posted was a matter of dispute. Plaintiff claimed he had not seen a poster and was unaware of the availability of adjacent houses. While walking back to the club house, plaintiff was struck by lightning, suffering permanent injury.

ELEMENTS OF NEGLIGENCE

I. Standard of Care : The degree of care which a reasonable person would exercise in the same or similar circumstances. Prosser

An organization or person may not maintain a "dangerous condition" ( Van Maussner at 827).

A. A reasonable person under the same circumstances would act: Duty to Install System by the organization which controls the premises

1. Under negligence, if an organization which controls the subject

premises takes no steps to provide protection against hazards, in some instances no liability will attach. For example, someone passing by need not clean the floor of slippery items if the premises is not under his/her control; nor need the individual shovel a snowy sidewalk. (If doctors stop at an accident site, they are protected from negligence claims because of the state's enactment of so-called "Good Samaritan" Laws; otherwise some doctors might be subject to negligence actions.)

2. But if the individual controls the premises, the need to protect against hazards will be determined using the reasonable person as a standard. That is, would a reasonable person take steps to protect others? ( Maussner at 826, 835)

3. In order to be liable, the owner must control the premises. Absent control, the owner may do nothing and is generally exempt from liability.

B. If provide a system, it must be reasonably effective and maintained.

If a system is installed, the Club has undertaken to provide protection from a "dangerous condition." Consequently, the system chosen must be publicized, be effective, provide ample warning to clear the course, and be reasonably serviced and maintained.

C. Elements of an effective lightning plan per Maussner court

1. Course must have an evacuation plan for lightning.

2. Evacuation plan must be effectively publicized to members and other users of the course. ( ibid. at 829)

3. The warning system must be effective, technologically sound - generally court will use industry standard -- and be properly maintained as needed ( ibid. at 828-829) .

4. Warning must be loud so that it can be heard around the golf course and given with enough lead-time to evacuate the course ( ibid. at 835).

5. Appropriate lightning-proof shelters should be provided on the course at regular intervals ( ibid. at 828-829)

6. Course should probably monitor the Weather Channel and National Weather Bureau. ( ibid. at 828-829)

Note: These elements developed based on the absence of such elements at the Atlantic City course.

D. Sources for Duty and Effective Planning

1. Industry-standard for Warning System.

2. USGA Rules.

3. Actions by golf clubs in the immediate area (If all other golf clubs have the warning system, the absence of a system at a particular club could be problematic.)

( ibid. at 828-829)

E. Problems arising from sending an employee onto the course to warn players.

Apparently, no court has yet addressed this question. The negligence standard would be the same as applied to the system. Is the action one a reasonable person would use under the circumstances? However, a course would be well advised to take reasonable precautions to protect the employee from harm.

II. Breach of the Duty of Care

A. In general would exist if a Club failed to provide the standard of care a reasonable club would provide.

B In Maussner , the Club failed to provide several items causing the breach.

1. Plan was very limited to non-existent: No shelters, no warning system, no lightning detector system, no effective evacuation plan, failed to adequately warn golfers of the danger of lightning, may or may not have had any posters or other materials publicizing the plan.

C. Whether installing a lightning warning system is required is unsettled.

D. Providing the other items in the Effective Lightning Plan above is probably required as the acts of a reasonable person.

III. Damages

In order to recover under Negligence, a plaintiff must prove damages. There is a great deal of case law on what constitutes damages, not cited here. In general, the damage must be significant and probably of some duration. Trivial or de minimus damages will probably not generate an award. If there be no damages, the Club may defend itself on this ground; however, the absence of damages will not prevent the prosecution of a suit.

Additionally, in calculating damages, the jury will look at the cost of doing what reasonable people would do versus the value of the damages. ( Prosser )

IV. Proximate Cause

Under the law of negligence, there must be a causal relationship between the breach of the standard of care and the resulting damages. Extensive case law defines this element. In general, the cause must not be far away in the chain of causation (i.e. a chain of causation where many other steps intervene between the owner's action which is the basis for the suit) nor eliminated by another cause outside the owner's control (intervening cause). If the victim's actions also contributed to the damages (contributory negligence), the owner's liability may be reduced. In some jurisdictions, a balancing of the owner's vs. the victim's actions in the causation is carried out. If the victim's actions contributed more to the damages than the owner's, the owner may be freed from paying damages (comparative negligence).

A. Foreseeability

In Hames v. State of Tennessee 808 S.W.2d 41 (Tenn. 1991), which is extensively quoted but not followed in Maussner , no liability was found for the golf course where a lightning strike occurred. The Hames court held the strike was an Act of God - an unforeseeable and unpredictable event making it impossible for the course to exercise reasonable care to prevent it and breaking the Proximate Cause chain. ( Hames held that the course was not liable because the strike was unforeseeable.) ( Maussner at 831).

In contrast, Maussner found that though any particular strike was unforeseeable, the condition that lightning occurs on golf courses was well known and should be addressed through the proper standard of care ( ibid. at 834-835).

B. Multiple or intervening causes

According to the Maussner court, there are two kinds of causes: the "direct cause" and the "condition" or circumstances in which the direct cause occurred. Only the direct cause satisfies the proximate cause requirement. A lightning strike is a direct cause. Being on a golf course is a condition ( ibid. at 831).

C. Intervening or contributory cause

Under the Hames analysis, if the golf course failed to have a lightning evacuation plan or failed to publicize it, that absence would not raise liability because of the Act of God - the random, unforeseeable lightning strike - "intervened" between the alleged want of reasonable care to have an evacuation plan and the damage. If the golfer, after receiving full notice of the presence of lightning in the area disregarded the warnings and continued to play, arguably the golfer had contributed to his/her own injury sufficiently to break the chain of causation and eliminate course liability. The course has a duty to warn, but not to bodily remove golfers from the course and the potential lightning hazard.

The Maussner court used a standard for determining negligence that appears to be grounded in New Jersey law (which incorporates some 1928 New York law). The Court cited Hopkins v. Fox & Laxo Realtors , 132 N.J. 426, 439, 625 A.2d. 1110 (1993):

Although a foreseeable risk is the indispensable cornerstone of any formulation of a duty of care, not all foreseeable risks give rise to duties." Dunphy v. Gregor , 136 N.J. 99, 108, 642 A.2d 372 (1994). Once the Foreseeability of the injury has been established, considerations of fairness and policy will dictate whether the imposition of a duty is warranted. ( ibid., quoted at Maussner at 832).

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[The owner owes] a duty of reasonable care to guard against any dangerous conditions on his/her property that the owner either knows about or should have discovered ( ibid. at 434, 625 A.2d. at 1110).

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The inquiry should be whether in light of the actual relationship between the parties under all of the surrounding circumstances the imposition ... of a general duty to exercise reasonable care in preventing foreseeable harm ... is fair and just ( ibid. at 833 citing Palsgraf v. Long Island R.R. Co. , 248 N.Y. 339, 162 N.E. 99 (1928).

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Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. That inquiry involves identifying, weighing, and balancing several factors - the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed ( ibid. at 833 citing Hopkins at 439).

Negligence: Elements according to Hopkins ( New Jersey )

Imposition of a duty to exercise reasonable care is fair and just under public policy in light of the actual relationship.

Requires Identifying, weighing and balancing several factors:

A. Relationship of the parties

B. Nature of the attendant risk

C. Opportunity and ability to exercise care

D. Public interest in the proposed solution

A. Golfers are members or invitees of the course.

B. Nature of the risk of lightning.

Maussner court held that lightning in general was a known risk on golf courses though a particular lightning strike could not be predicted ( ibid. at 833, 835). Interestingly, the court questioned the viability of the Act of God defense in general ( ibid. at 835).

C. Opportunity and ability to exercise care.

If courses do nothing about the lightning, they must post large signs informing golfers that they play at their own risk. However, whether a duty to protect golfers from lightning is required was left for another case given the unsettled nature of the law.

According to the Maussner court, reasonably accurate technologies to detect lightning in the vicinity are now available. If a golf course uses one of these technologies, it must be reasonably accurate and be reasonable under the circumstances.

Additionally, courses may develop reasonable evacuation plans, post signs and other publicity of the plans, build lightning-proof shelters, if a horn be used it must be audible for golfers who must know what the horn means.

The cost of the system should be reasonable given the risk. The court does not mandate exorbitant costs.( ibid at 835)

D. Public Interest

The Maussner court stated:

The public interest in the proposed solution [of lightning warning systems and evacuation plans] is clear. The great popularity of golf makes the reasonable protection of golfers an important public interest. There are now more people walking around on open plains carrying bags of steel shafts than there have ever been ( ibid. at 835).

Conclusion