Legal News

Golfer Gored by Gator Sues Course Over Pond Design

By Matthew Heller, Editor

A golfer whose arm was torn off by an alligator during a round of golf in South Carolina has sued the course's owner under the novel theory that the design of the course created an alligator hazard.

Ocean Creek Golf Club

Fripp Island, a resort and nature preserve off the South Carolina coast, boasts two golf courses. James Wiencek of Chagrin Falls, Ohio, was playing a round at the Ocean Creek Golf Club in October 2009 when a 10-foot, 400-pound alligator pounced on him, pulling him into the pond at the 11th hole and ripping his arm off.

A property owner cannot be held liable for an attack by a wild animal that has not been ?reduced to possession,? but which exists in ?a state of nature.? Alligators are indigenous to South Carolina and signs warning people about them are posted at lagoons on Fripp Island.

But Wiencek argues that Fripp Island Resort, Inc., and several subsidiaries created not only an attraction for golfers, but an ?artificial habitat? for alligators. The course was designed by PGA champion Davis Love III.

The defendants were negligent ?in designing, building, and maintaining the 11th hole pond such that it had dark, brackish water, steep banks, and thick vegetation rendering it difficult or impossible for golf patrons to see or notice the presence of large and aggressive alligators,? Wiencek said in a lawsuit filed last week in Beaufort, S.C.

Certainly, the pond is an ?artificial habitat? in the sense that it did not exist until the golf course was built. But in a similar case, a Florida appeals court said a recreational park was not liable for an alligator attack because it had not ?reduced the alligator to possession before the attack.? Palumbo v. Game & Fresh Water Fish Com'n, 487 So.2d 352 (1986).

?There is no property in wild animals until they have been subjected to the control of man,? one authority on torts has noted. ?If one secures and tames them, they are his property; if he does not tame them, they are still his, so long as they are kept confined and under his control.?

According to Wiencek, the 11th hole at Ocean Creek features a ?large and deep pond? near the green. He hit his ball ?near, but not in? the pond, he says in his suit, and when he reached his right arm toward the ball, ?without warning a large 10 foot long alligator sprung from the brackish and dark water and attacked Plaintiff, biting and holding Plaintiff?s right arm.?

?The alligator then pulled Plaintiff into the water and attempted to initiate a roll, pulling Plaintiff underwater,? he continues. ?Plaintiff struggled with the alligator, and the alligator tore Plaintiff?s right arm off in a violent and vicious manner above the elbow.?

Other golfers pulled Wiencek out of the water. Wildlife officials killed the alligator and were able to retrieve his arm but the suit does not say whether surgeons were able to reattach it.

Wiencek bases his case in part on the golf course operator's alleged failure to warn him of the danger at the 11th hole. Before the attack, he alleges, ?residents of nearby homes had noticed the alligator?s large size and aggressive behavior and had alerted the Defendants to its presence and behavior.?

But the suit also says the defendants are strictly, or automatically, liable, "for the injuries and damages sustained by the Plaintiff through their construction, designing, and maintaining a golf course that created an artificial habitat that attracted large and dangerous alligators.?

Courts have occasionally stretched liability for injuries caused by wild animals. The North Carolina Supreme Court, for example, said a landowner who put lame wild geese on a pond and kept food and bait on and around it ?for the purpose of attracting wild geese? could be sued for damage the geese inflicted on a neighbor's crops.

?The defendant knew, according to the allegations in the complaint, that wild geese are attracted to a pond where food is placed and where lame wild geese are maintained,? the court noted in Andrews v. Andrews, 88 S.E.2d 88 (1955).

But Wiencek's case is likely to be a wild goose chase since there is nothing in his complaint to suggest the pond at the 11th hole was designed ?for the purpose of attracting? alligators. Ocean Creek is not a zoo and the course owner's mere act of providing a habitat does not amount to ?capturing? or ?confining? the alligator.

According to wildlife officials, there have been ten confirmed alligator attacks in South Carolina within the past 25 years. "These kinds of attacks are very, very unusual and very, very unfortunate," an alligator removal specialist told the Island Packet newspaper.

By Matthew Heller
On Point

Full post as published by On Point News on January 25, 2011 (boomark / email).