February 2012 Archives

Those considering involvement with their country club's  organizational activities should first touch base with Eddie Murphy. Mr. Murphy, the former handicap secretary at Hermitage Golf Club near Dublin, Ireland, should have some free time, as his 21 day trial recently concluded. Mr. Murphy enjoyed this courtroom event along with his co-defendants, Hermitage and the Golfing Union of Ireland. The parties expect a ruling shortly.

Their offense? According to former Hermitage member Thomas Talbot, the defendants defamed him and damaged his reputation by, ready for this, lowering his handicap.

Unlike the crazies buying equipment and contorting bodies as directed by instructional magazines, Mr. Talbot apparently does not aspire to lower scores. To the contrary, he claims that, by providing him with a 7.7 stroke reduction in handicap over five years, the defendants effectively were branding him a cheat. The 10 million pounds he seeks as damages should go a long way toward restoring his reputation.  He could also pay for a few golf lessons, and further lower the handicap.

I take personal pleasure that the saga of Mr. Talbot has led me to a kindred spirit in Ireland, Attorney Larry Fenelon. Addressing the costs of this litigation debacle-500,000 pounds to the defendants-Attorney Fenelon observed how clubs would benefit from the inclusion of a mediation and/or arbitration provision in their governing documents. According to Attorney Fenelon, any club leader

"should check themselves if they are thinking 'this could never happen to us'. It can, it does and it may. The key ingredients are (i) an aggrieved principled person and (ii) a haphazard dispute resolution process. The prevention is so simple, so quick and so utterly cost effective. It's a no brainer."

Ostensibly with this in mind, the Farmers Branch Planning and Zoning Commission decided that ordinances designed to preserve the views were worthy of municipal attention. Thus, P&Z has proposed two ordinances. One would prohibit the location of accessory buildings and garages closer than 15 feet from the Brookhaven property line. The other would require that boundary fences be made of black decorative metal and be 75 percent transparent.  With these ordinances enacted, residents-including those adjacent to homes with accessory buildings and fences-would have largely unimpeded views.

While apparently most of the residents favor these ordinances, the world being what it is, objections have been made.  Some, rather than view the proposals as benefiting the residents, see them as promoting Brookhaven, at the expense of their property rights. One, a tea partier perhaps, proclaimed that "this is too much government say over properties."

Another, viewing safety as the major concern, explained that the ordinances would lead to "more invasion of golfers retrieving their golf balls + home damage...We have had at least 16 instances of damage." , including the right to erect a privacy fence. "

And, my favorite, expressing the unspoken sentiment of many, cut to the heart of the matter: "Many of the times while we are in the back yard we have seen golfers lean up against a tree and use the bathroom, that is not a pretty view."

Perhaps if the ordinances were revised to provide that the accessory buildings could include Porta-Johns, all would be in agreement.

Ordinarily, I would avoid commenting about the personal misfortune suffered by a golfer who was impaled by the shaft of a broken club, especially when the man's femoral artery was ruptured. However, reports are that the man is out of the hospital and recuperating, presenting an opportunity to drive home a point of golf etiquette.

Point of Etiquette: Slower players should let faster players play through.

Ancillary point: Violations do not warrant physical assault.

To be fair, the events that occurred at Fort Worth's Resort on Eagle Mountain Lake remain murky. A spokesman for the Sheriff's Department stated that two groups of golfers converged on the 13th tee. The second group (a threesome) asked the first group (a foursome) if they could play through. Presumably, the answer was "no" (or something to that effect), because a fight broke out, a club was broken, and-according to the spokesman- "the shaft end of the golf club became impaled into the groin area of one of the men." Ouch.

Before firing up the judicial machinery, however, please note that the cause of the injury remains under investigation. Apparently, the person calling 911 for assistance stated that the man had fallen onto the club. I wonder if the caller was a member of the foursome or the threesome????

The incident reminds me of a legal case I once read about. The North Carolina Supreme Court's decision in  Everett v. Goodwin, 201 N.C. 734 (1931) describes what happened:

"The plaintiff and his companion [Mr. Elkins], playing what is called a twosome, began their game, and, before they had proceeded very far, the defendant Goodwin, with two companions came upon the course and began playing a threesome behind the plaintiff.

Plaintiff testified as follows: "As we were starting on the fifth hole I drove, and Mr. Elkins then drove, and I got a bad drive on my first ball, which did not go any further than from here to the door back there, and I went out and was preparing to drive again and as I did I looked around and Mr. Goodwin was getting ready to drive his ball off and was swinging, and I hollered, 'Look out, don't drive this way,' and as he drove, the ball went over my head and he hollered and said, 'Get out of the way."

Plaintiff further testified that the defendant and his companions were driving balls in and about him and his companion from the fifth hole up to the fourteenth. The occurrence at the fourteenth hole is narrated by the plaintiff as follows: "They were right there on the tee with us when we finished, and as soon as we would put our ball down and drive off before we had gone more than fifty feet they would have their ball down starting to drive it without any warning whatsoever. In fact, they were so close to us that we did not walk down the middle of the fairway for fear they would hit us. They would drive just immediately after we drove our ball.

As we reached the sixteenth tee and Mr. Elkins made his drive, and I made my drive, as I stepped off, a couple of them, I do not know just which it was that had the ball already teed up ready to swat it, I walked over the edge of the fairway in the rough and I had not gone more than fifteen feet when they had driven their ball and Mr. Goodwin put his ball up to drive and he was drawing back to hit it, and I made the remark, "You are liable to hit me.' I made it loud enough for all to hear. I said, "Better get out of the way, he is liable to hit us,' and I got off the fairway on the edge of the rough, and when I did he drove the ball and the ball hit me on this knee-cap and as it hit me on the knee it knocked me off both feet on the ground and I immediately got up as quick as I could and I said, 'I believe it broke my leg.' Mr. Goodwin walked down there and said he didn't think it was broken and didn't think it was hurt much."

Confronted with these less than favorable facts, the defendant made the rather ingenious argument that he was not hitting into a twosome because the two groups had merged into a fivesome and therefore the rules of engagement were different, as accidents among groups sometimes happen. The jury, however, didn't buy the argument and the Supreme Court refused to second guess the jury. However, the court could not resist one final salvo:

Defendant testified that the parties merged into a five-some from the fifth to the sixteenth hole, and between these said holes the game proceeded "strictly according to honors." This is explained to mean that "the man who makes the lowest score is the man who has the honor of making the first play at the next hole." It does not appear who the "honor" man was at the sixteenth hole, but it is clear that the plaintiff had the "honor" of having his knee cap broken by a ball driven by the defendant, and it is obvious that thereafter all "honors" ceased.

I suspect most everyone by now has seen or heard the reports that Phil Mickelson is in hot pursuit of one or two anonymous internet posters who made scurrilous comments about him and his wife.

The legal proceedings Mickelson has commenced are informative in a couple of respects. On a general level, they show how the internet, with its decentralization and widespread dissemination of information, and the legal protection provided to the internet service providers, creates practical problems for someone claiming to have been defamed. In the dark ages, if a newspaper were to have published the Mickelson claims by the pseudonymous  "Fogroller" and "Longtitude" [sic], Mickelson could bring suit against the paper, end of story. Now, however, the victim must get to the original authors of the comments, and needs to commence legal action simply to identify and locate them.

The second area of interest is why Mickelson so vigorously is pursuing the authors. Perhaps it's no more complicated than he is rightfully angry and wants to create a lifetime of misery for "Fogroller" and "Longtitude". Or perhaps there is the sense that, especially with the Tiger saga, the failure to respond will lead some to believe what was said.

If the goal, once the culprits are identified, is to file a defamation suit, Mickelson places himself on tricky ground. Since a defamation action seeks damages for harm to reputation,  one's entire life-which is the basis for one's reputation-can become an open book during the discovery process. Even if there are no skeletons lurking, I find it hard to believe that Mickelson will want to subject himself to the prying of a lawyer who will be delighted to take on the defense of Fogroller and Longtitude for no compensation. So, my prediction is that, once Mickelson unmasks Fogroller and Longtitude, the world will move on and no defamation suit will be filed.