Eight years ago, Barbara Jean Ross had the misfortune of colliding with a Michigan State Trooper.

If colliding with a law officer weren't misfortune enough, Ms. Ross was forced to give up golf as she could no longer play without pain.

Seeking recovery for her injuries, Ms. Ross was confronted with her home state of Michigan's "no fault" law, which largely abolishes tort liability except when "the injured person has suffered a serious impairment of body function."  Under Michigan law  "a serious impairment of body function" can be deemed to occur when the impairment "affects the person's general ability to lead his or her normal life."

Ms. Ross's legal goal, therefore, was to convince a court that the removal of golf from her life constituted a sufficient deprivation that she should be permitted to pursue a claim for damages.  Unfortunately for Ms. Ross, the lower court judge showed little sympathy. As he stated, in dismissing her case,

"The fact that she has chosen to abandon golf because of some minor pain is her choice. It doesn't appear to me that she couldn't play golf. It appears that she doesn't want to go through any kind of additional pain, and if she had such serious pain, I think she would require a lot more therapy, she would be on pain pills, she would be on cold compress, I'd hear a whole lot more, and I'm not."

Ms. Ross appealed the decision, and, last week, the Michigan Court of Appeals, by a 2-1 vote, overruled the lower court and reinstated Ms. Ross's claim. In the majority opinion, the court explained that the lower court's job was not to assess Ms. Ross's tolerance for pain, because, by doing so, he effectively was deciding whether she was, in fact, impaired. Such a factual question was for the jury, not the judge, to decide. Accordingly, the Court of Appeals sent the case back for trial.

A dissenting opinion, written by the Honorable Kurtis T. Wilder, expressed a different view. According to Judge Wilde, before the accident, Ms. Ross only played golf approximately once a month during the summer months, or, as he characterized it, "a handful of times per year." Such a loss, in his view, was insufficient to destroy her "general ability to lead....her normal life." Judge Wilder distinguished Ms. Ross's situation from an earlier case where, due to injuries, a golfer who played 2-3 times a week, was no longer able to do so.

As noted, Judge Wilder expressed the dissenting view. The majority of the court, therefore, has concluded that golf, even in small quantities, is an important component of a normal life. Something that all of us knew already.

Kevin Kolenda, the Chief Executive Officer of the Connecticut based Hole-in-Won prize company, was recently arrested after being charged by the Washington (state) Insurance Committee with felonious insurance practices. This marks the second felony prosecution instituted against Kolenda so far in 2012. Since the leaves haven't yet changed color, there's still time for a hat trick.

The earlier 2012 charges, filed in Montana, arose out of his failure to pony up for an ace made at a charity event in Missoula.

The recent Washington charges were brought by the state's Insurance Commissioner based on allegations of a history of bad acts in the state.  The Commissioner's office issued a press release, asserting the following litany of offenses:

• In 2003, Kolenda illegally sold insurance for a tournament in Bremerton.  But when a golfer got a hole in one and tried to claim the $10,000 prize, Kolenda wouldn't pay.
• In 2004, Kolenda sold insurance for a Vancouver tournament. Again, a golfer got a hole in one. Kolenda refused to pay the $50,000 prize. After a hearing at which Kolenda failed to appear, he was ordered in 2008 to pay a $125,000 fine. He never did.
• In 2010, Kolenda sold coverage to pay $25,000 for a hole in one during a golf tournament in Snohomish. A player got a hole in one. His golf partners signed notarized forms attesting to the hole in one. The prize remains unpaid, despite numerous calls and emails from the partners and tournament officials.

For whatever reason, clients continue to pay Kolenda's company premiums, while he continues to face accusations of not making payments. Good work, if you can get it, though presumably the legal fees for the defense of criminal actions must take a big bite out of the bottom line.

I suppose we shouldn't be surprised that golf has made its entrance into the 2012 presidential campaign. For decades, golf and presidents has always captured the public's attention. Augusta National's "Eisenhower Tree," JFK's athleticism hobbled by a bad back, Gerald Ford's errant drives, Bush 41′s supersonic speed rounds, Bill Clinton's mulligan generosity, and Bush 43′s "now, watch this drive" are all part of the entrenched political golflore.

Since Barack Obama has occupied the White House, the "other team" routinely has challenged his job dedication by keeping track of his golf rounds.

Well, given the shoe now is on the other foot, with a Bain Capital, class warfare golf angle. Among the litany of Bain-under-Romney stories is one now circulating that describes what transpired at Dade Behring after the company was acquired by Bain. As described by human resources manager Cindy Hewitt,

In the summer of 1998, amid mass layoffs and mandatory overtime at the Dade East plant, she saw workers crowded around a glass executive suite. Some shook their heads and walked away, and others just stood there staring, she recalled. She walked over to check out what was going on and found several department heads putting golf balls in the office.

"Here are these people whose lives are upside down, doing mandatory overtime, and the executives are playing golf where all the employees can see," Hewitt said. "I was so upset that I walked in and picked up a golf ball and said, 'Get out and go to the golf course if you don't have anything to do.' It was the most callous, insensitive thing I had ever witnessed. I was completely dumbfounded."

Hewitt said the golf putting incident was so traumatizing for her that she quit her job the following month...

In case you haven't realized it, it's going to be a long, painful slog until the first Tuesday in November.

A former law partner, whose father owned a shoe store, once educated me about the shopping mall theory of co-existence. As he explained, shoe stores embrace the presence of competitors in the same mall. A critical mass of shoe stores in one location attracts more shoe shoppers, to the benefit of all of the stores. Each store will then seek increases in its market share among the collective shoe shopper universe through sales, promotions and store ambiance.

The shoe store model has been successfully utilized in the golf world. As the theory goes, the concentration of golf courses in meccas such as Arizona and Myrtle Beach will serve to attract a disproportionately larger audience than will a single course left to market itself in isolation. The courses then compete among each other for market share.

Similarly, golf equipment manufacturers collectively embrace the latest innovations, as the changes will influence golfers to deem their current equipment obsolete, in favor of the latest and greatest. Companies will then pitch their specific versions of the new fad to the universe of equipment shoppers.

More recently, the internet age has brought the shoe store model to the world of tee times. Golf course owners, recognizing that they share the common issue of unused inventory (i.e., tee times) are collectively reaching a broader audience by participating in online tee time websites, thereby enabling golfers to undertake one stop shopping for tee times that fit their price and schedule parameters. Civilized competition among the collaborators then takes hold, based on pricing and the number of slot made available to the internet shoppers.

Below the surface, however, conflict and legal issues have arisen that are not often associated with the shoe store model of collaboration / competition. While course owners may recognize the value (or necessity) presented by participating in online tee services, many are unhappy with the direct and indirect costs required to participate with the larger, national providers of such services. They also fear that the discounted pricing for tee times presented online will create in the public's eye that a course's value is only as good as the low internet price.

Several months ago, when the PGA of America was on the verge of entering into a relationship with GolfNow , the largest provider of online tee times, substantial push back emerged from course owners, resulting in the National Golf Owners Association of America issuing recommended best practices for the provision of these services. Additionally, course owners that are geographically proximate in some cases have bypassed the commercial vendors, creating collaborative associations to offer the services, seeking to provide sufficient critical mass to attract golfers' attention without the heavy tolls they believe are exacted by the outside vendors.

Most recently, the online tee time world has been filled with news about the federal court action brought against GolfNow by another provider, EZLinks. EZLinks claims that GolfNow engaged in unfair competition by hiring a former EZLinks employee who then unlawfully downloaded proprietary software from EZLinks' computers. As this litigation unfolds, it will provide ongoing insight into the powerful market forces driving this newest example of the shoe store model of collaboration / competition.

According to its website, Topstone Golf Course, in South Windsor, Connecticut, has been designated by Golf Digest as one of the "Best Places to Play" and by Hartford Magazine. as the 2008 "Best Public Golf Course."

Last week the course received recognition of a different kind, as the Connecticut Appellate Court issued an advance of its opinion in Kelley v. Five S. Group, LLC, ruling on a controversy that exists between the developer / operator of the course and the owners of the land on which it was constructed.

In 2005, a company consisting of members of the Shepard family engaged the services of John Kelley to build and operate a golf course on Shepard property. Preliminary discussions between Kelley and the point person for Shepard family contemplated that Kelley would contribute his labor for no fee, the family would contribute the land, and the two parties would share the operating expenses and profits equally. The arrangement was to last for thirty years, at the end of which Kelley would receive a $1.5 million payment.

By the time the arrangement was formalized, however, Kelley's entitlement to the back end $1.5 million payment had disappeared from the written contract documents. Although claiming that he signed the documents unaware of the provision's absence, Kelley acknowledges that he became aware in 2000 that he had no contract right to the $1.5 million. Nonetheless, he continued to operate the course, with the two parties each taking out approximately $100,000 per year.

Ten years later, in 2010, Kelley filed suit, advancing several legal theories designed to enable him to capture the $1.5 million back end payment that never made its way into the contract, essentially arguing that it would be unjust to deprive him of that sum.

The trial court, looking to the documents the parties signed, rejected Kelley's argument, and the Connecticut Appellate Court agreed, holding that "the record as a whole convincingly demonstrates that the trial court properly determined that the plaintiff failed to establish the requisite factual underpinning for his claim that the defendant was unjustly enriched by the plaintiff's design and construction of a golf course."

The obvious lesson: "A handshake is only as good as the paper on which it is written."

With springtime golf season embracing all of the country, now seems an appropriate opportunity to remind the truly hard core that too much golf can be detrimental to a stable home life. Excerpts from two divorce cases provide a cautionary tale.

From Missouri, we learn about the marriage ending frustrations of Mr. and Mrs. Frank during the late 1940′s:

"Plaintiff liked to play golf and it was his practice to engage in that sport twice a week during the golfing season. He would play on Saturday and Sunday afternoons. Defendant objected to plaintiff playing golf, contending that he should stay home on those occasions. The final separation resulted from a quarrel with respect to plaintiff's participation in a golf tournament at St. Joseph, Missouri. He stated that when he was preparing to leave for this tournament his wife told him: "If you leave here now, don't ever come back." He further testified that he then advised her, "I am going to go anyway." He testified: "So I started packing my clothes and as I packed them in the suit case she would take them and throw them on the floor and I would put them back in the suit case, and that went on a couple of times and she picked up a screwdriver, which I had been using for home repairs, which had been lying out in the open, and she picked it up in a menacing manner, as if to stab me. I dropped my clothes and took it away from her and in the course of the struggle she bit me on the forearm. * * * Then she turned loose of the screwdriver. I took it away. As a matter of fact, I took it with me to prevent her from using it again, and packed my clothes and left. * * * I went out and spent the night at my mother's, and the next morning I left for St. Joseph." Frank v. Frank, 238 S.W.2d 912 (Mo. App.1951)

However, the Frank residence appears positively tame compared to the drama of the Ross family in Polk County, Iowa, in the Roaring '20′s:

As Mr. Ross testified about his wife, "she was profane and abusive toward me, and called me vile names. Her pet name for me was son of a bitch, which she emphasized occasionally with swear words." He further testified that "he played golf three or four different times against his wife's protest, and on one occasion, when he went out to play golf with his brother on Sunday, when he got home she said, 'God damn you, why don't you stay around home instead of going out to play golf on Sunday'; that, when he complained about her not waiting for him when he was late to his meals, and said he did not like cold food, she said he could eat down town, and swore about it, and threw a butcher knife at him. He testified that she was crying and mad; that she was that way most of the time; that one Sunday, when he had gone out to play golf, and got back about 12 o'clock, she did not want to get any dinner; said if he could go out and play golf she would be damned if she would work; and she did not get him any dinner; that he then walked down to the river, and when he came back she was lying undressed on the kitchen floor, with all of the gas burner turned on...[and that when it happened again] he said, 'I told her if she wanted to commit suicide there was no need of blowing up the house.'" Ross v. Ross, 216 N.W. 22 (Iowa 1927)

Everyone, enjoy the wonderful weather, hit 'em straight, and don't forget your loved ones at home.

The sometimes complicated relationship between lawful behavior and acceptable conduct is demonstrated by the perennial April discussion about Augusta National's gender discriminatory membership policy. This discussion has attained a heightened level of interest with IBM's recent appointment of Ginnie Rometty as its Chief Executive Officer.

From a legal standpoint, one would be hard pressed to argue Ms. Rometty's membership exclusion is unlawful. Private clubs and organizations may limit their memberships on the basis of gender, race, religion and other criteria. Indeed, many people would agree that it is appropriate for a group of men to share a weekly poker game, for women executives to network among themselves, and for Lithuanian-Americans to perpetuate their culture. Largely, the public accepts the existence of closed memberships when they are viewed as providing opportunities to foster positive aspects of member identity.

However, when organizations are viewed as promoting exclusion, public perception of their acceptability changes. A country club that largely limits its membership to white, Christian males finds it difficult to offer as a rationale that its motivation is to beneficially enhance the racial, religious or gender identity of its membership.

While lawful, a private club's discriminatory membership policy may come with a price. For example, last December, the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States sanctioned a federal bankruptcy judge for maintaining membership in a private club that denied membership to women and African-Americans. The judge was found to have violated the Code of Conduct for federal judges, which provides that "a judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion or national origin."

Similarly, golf's governing bodies--including the PGA Tour, the PGA of America, the USGA and the LPGA--have policies that prevent them from hosting events at clubs with discriminatory membership policies.

Viewed in this context, it is not surprising that Augusta National finds its membership policies the target of criticism. By hosting the Masters, the club creates a public spectacle without making itself a public facility.

Just as the club lives with this conflict, so do those of us who partake--some would say enable--by watching, playing, networking and marketing the tournament. We enjoy the spectacle, while professing discomfort about the club's membership policy.

Golf Galaxy and a number of the major golf equipment vendors--including Nike, TaylorMade, Acushnet, Callaway, Adams Golf and Bridgestone-have been sued for sex discrimination.

The complaint alleges that Golf Galaxy opted to sponsor a Women's Night event, where, for a two hour period on April 20, the store provided "exclusive offers on merchandise, free $10 Golf Galaxy gift cards, fee goodie bags, access to on-sitemanufacturer representatives from major golf equipment brands, signature Paula Creamer adidasgolf shoe giveaway, chances to win a Nike Karma 12-ball pack when demonstrating a golf club, giftcard raffles, gifts with purchase, refreshments, 'and chances to win (1) a Nike Golf "Head-to-ToePackage' including golf clothing, shoes, and balls, (2) a Taylor Made 'Head-to-Toe Package'including golf clothing, clubs, bag, and balls, and (3) a set of Adams Golf clubs."

According to the complaint, Golf Galaxy prevented men from shopping at the store during this two hour period, unless they were  husbands of women attending the event. Thus, as the complaint asserts, "female millionaires such as Nancy Pelosi or Sarah Palin would have been allowed into Golf Galaxy's stores and provided with the gift cards, gifts, refreshments, andopportunities to win thousands of dollars worth of merchandise, while male consumers, who mayComplaint for Injunctive Relief and have recently lost their jobs, would have been denied entry in Golf Galaxy."

The lawsuit invokes California's Unruh Act, which prohibits discrimination on the basis of sex or marital status.

The last time we encountered the attorney representing plaintiffs, he had filed a similar action alleging sex discrimination against Eagle Vines Vineyards & Golf Club arising out of slightly discounted greens fees offered to women on Ladies Day. That posting generated substantial discussion among readers concerning issues of gender equality, and the propriety-regardless of the substantive merit of the allegations-of subjecting the golf club to litigation. (Parenthetically, the plaintiff in the Eagle Vines lawsuit, Steven Frye, is one of the plaintiffs in the new Golf Galaxy lawsuit.)

The Golf Galaxy and Eagle Vines lawsuits present an interesting juxtaposition to the current Augusta National controversy surrounding the membership non-invitation to Ginnie Rometty. Augusta National's departure from its established precedent of granting green jacket status to the reigning IBM Chief Executive Officer suggests a current determination to maintain a gender discriminatory membership policy.

From a legal standpoint, judicial decisions--based on constitutional principles that guarantee rights of free association--permit private clubs to slice and dice their membership rolls pretty much as they please. Similarly, various statutes prohibit sex-based discrimination in public facilities. Whatever the underlying legal arguments that allow for disparate treatment, there is an inescapable irony to the way our legal system and society permit the debasing exclusion of women from private clubs, while subjecting  clubs such as Eagle Vines and retailers such as Golf Galaxy to judicial sanction for modest attempts to further the interests of women in golf.

In 2009 Robert and Katherine Brady purchased a home in Hamilton, Montana.  The home, which was built in 2005, has the good or bad fortune (depending on whether one aspires to be a seller of used golf balls), to border the 18th hole of the public Hamilton Golf Club. By their reckoning, the Brady homestead serves as the landing area for 1300 sliced golf balls per year.

In October 2011, Attorney Alex Beal, on behalf of Mr. and Mrs. Brady, sent an impassioned letter to the Hamilton Golf Course Board of Directors and the Board of County Commissioners. Attorney Beal explained that the incoming golf balls "routinely hit the house and roof, breaking windows, denting and warping window frames, hitting vehicles in the driveway (to do this they have to clear the house first), nearly hitting multiple contractors, the Bradys, and their guests, and generally depriving the Bradys of the use of their property."

Confronting the troublesome fact that Mr. and Mrs. Brady elected to purchase their home cognizant of its location, Attorney Beal, characterizing the condition as "potentially lethal," offered a survey of case decisions that ostensibly supported his argument that remedial steps should be taken.  Suggesting that "there are no viable defenses to your liability," Attorney Beal stated that, absent satisfactory corrective action, "you should expect to be served with a complaint seeking to enjoin the use of the 18th hole as well as for damages." Choosing an interesting metaphor, Attorney Beal concluded with an admonition that "the ball is now in your court."

When no satisfactory solution was forthcoming, the Bradys and their counsel followed through with their promise, filing suit. As part of their legal action, they sought a temporary injunction to shut down or modify the 18th hole.

The plaintiffs' asserted belief that "there are no viable defenses to liability" proved not to be shared by the judge. Faced with the fact that the 18th hole had been around for 25 years before the Bradys' home was built, District Judge James Haynes concluded that concluded that the likelihood that the Bradys will win the nuisance part of the lawsuit is low, and denied the request for an injunction..

Judge Haynes observed that Mr. Brady, a former contractor, and Mrs. Brady, a former real estate agent,  should have known to make inquiry about the status of incoming golf balls. He also observed that the Bradys can reduce the risk of injury by installing netting screens near the home.

The injunction proceeding was a preliminary matter, so the case will continue to work toward an ultimate trial. For now, however, those playing at Hamilton Golf Club will be able to play more than 17 holes. and the Bradys can defray their legal costs and the installation of netting by selling used golf balls per year on Ebay.

In 1995, the USGA created for its members a Walking Program to promote one of the traditions of the game. As the USGA describes it, "the Program's message is to encourage Members, who are able, to walk." Program participants sign a declaration that proclaims "whenever given a choice, I will always walk."

Golfers at Meadow Creed Golf Club in Dracut, Massachusetts may soon qualify for a walking program that exceeds what the USGA envisoned.

Meadow Creek does not own the parking lot that services the club. Rather, it leases the parking lot from Realty Financial Partners, a real estate investment firm located in nearby Wellesley. It seems as though the golf club is several months behind in its rent payments to the landlord. In response, the landlord has installed barriers that block access to the parking lot.

This past week, the club owner, having unsuccessfully attempted to involve town officials in a landlord-tenant manner, sought judicial relief. Last Thursday, a Superior Court judge, after hearing argument, took the matter under advisement.

With Meadow Creek scheduled to open on April 1, the club needs to hope for a favorable judicial decision, or a successful negotiation of its differences with the landlord.

The USGA Walking Program contemplates golfers driving to the course and walking while they play. Conversely, Meadow Creek golfers face the prospect of walking to the course and riding while they play. Will they qualify as honorary members of the USGA Walking Program? At least they should get a special bag tag.