By: Rob Harris
The website of Texas’ Clubs of Cordillera has this to say about its “signature par-3 sixteenth hole,” designed by Jack Nicklaus:
“Jack has captured the essence of the Hill Country, along with great golf, by placing the peninsula-shaped green just over a canyon, between thin water falls…a player’s dream, a photographer’s canvas, and a certain destiny as one of the most talked about holes in all of Texas.”
Club member Tom McCloskey views the hole more as a nightmare than a dream. For him, his focus is not “the peninsula-shaped green just over a canyon,” but what lies just beyond. Because, as summarized by the Texas appellate court that recently affirmed dismissal of Mr. McCloskey’s lawsuit,
“the golf course’s sixteenth hole has an elevated green surrounded on three sides by cliffs. While playing the sixteenth hole, McCloskey stumbled on the green, rolled to the edge, and fell off the side. McCloskey sustained severe injuries to his right shoulder as a result of his fall.”
McCloskey sued the club and Nicklaus Design, LLC, alleging both simple and gross negligence. The trial court rejected the claims, on legal grounds, and the appellate court affirmed.
As for the simple negligence claim, Mr. McCloskey ran up against language contained in the various documents that governed his membership in the club and his ownership of a condominium unit in the community. In particular, he was bound by a release that provided as follows:
H. Release and Disclaimer. . . . EACH OWNER . . . HEREBY (I) ACKNOWLEDGES, ACCEPTS AND ASSUMES THE RISKS ASSOCIATED WITH SAID CLUB FACILITIES PROPERTYHAZARDS, INCLUDING ANY. . . PERSONAL INJURY . . . CAUSED BY OR ARISING IN CONNECTION WITH ANY OF SAID GOLF COURSE HAZARDS OR OTHER RISKS, HAZARDS AND DANGERS ASSOCIATED WITH THE OPERATION OF A GOLF COURSE AND OTHER CLUB FACILITIES (COLLECTIVELY THE “ASSUMED RISKS“), AND (II) RELEASES . . . CORDILLERA RANCH LTD.. . . THE CLUBS, THE OWNER OF THE CLUB FACILITIES PROPERTY,AND THE DIRECTORS, OFFICERS, MEMBERS, PARTNERS, AGENTS, CONTRACTORS, AND EMPLOYEES OF ALL SUCH ENTITIES (COLLECTIVELY THE “RELEASED PARTIES“) FROM ANY AND ALL LIABILITY TO THE OWNER . . . FOR ANY DAMAGES, LOSSES, COSTS (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES), CLAIMS, DEMANDS, SUITS, JUDGMENTS, ORDINARY NEGLIGENCE, OR OTHER OBLIGATIONS ARISING OUT OF OR CONNECTED IN ANY WAY WITH ANY OF THE ASSUMED RISKS.. . . .
Mr. McCloskey argued that, under Texas law, public policy precluded this release from barring his claim for gross negligence. Unfortunately, for Mr. McCloskey, the court found that the law governing gross negligence precluded his claim, because he was unable to “provide any evidence that any of the appellees had an actual, subjective awareness of the risk and proceeded with conscious indifference.”
In particular, “although McCloskey offered his deposition testimony regarding the manner in which he fell, his testimony does not address the appellees’ actual, subjective awareness of a risk or of a decision to proceed with conscious indifference. For example, no evidence was offered that any other invitee had fallen from the sixteenth green. In addition, no expert testimony was introduced to establish the manner in which the sixteenth green was constructed involved an extreme degree of risk.”