Up in Flames: Lawsuit Could Spell Trouble for the Game’s Conservation Efforts
September 29, 2016
By Craig Kessler, SCGA Government Affairs Director
The golf industry has much riding on the outcome of “Gregory E. Saska et al., vs. Omni Hotels Management Corporation.”
Let’s call it the Poinsettia fire case for short – not poinsettia as in the red and green plant that you see everywhere in December, but Poinsettia as in the name of the street that abuts the 7th hole on the Champions Course at La Costa Golf Club in Carlsbad. The fire allegedly originated in the strip between Poinsettia Lane and the 7th fairway.
Saska and company, mostly a horde of insurance companies that paid millions in claims from the freak fire that rampaged through the canyons of Carlsbad in May 2014, are suing Omni La Costa for failing to demonstrate due care in performing one of the following acts. Take your pick; such is the nature of legal claims.
Removing previously irrigated turf in the corridor between the Champions Course’s 7th fairway and Poinsettia Lane and replacing it with California friendly drought tolerant vegetation; Selecting a pallet of drought tolerant vegetation without paying heed to the ignition properties thereof; Failing to maintain the chosen drought tolerant pallet in a manner that obviates possibility of ignition; Rerouting the irrigation system so that the removed area is no longer reached by the system’s heads; or in the alternative Failing to banning smoking on a golf course with drought tolerant plantings and enforce the ban through signage and on-course monitoring.
The last point may be moot, given that it requires some measure of evidence that a cigarette or cigar caused the fire, and there doesn’t appear to be any. The case will turn on the first four points, all of which describe the normative golf course practice. And that’s why this case packs a punch for the golf industry.
To point one, if the mere act of removing plant material that one knows to be fire retardant (irrigated turf is incapable of ignition) and replacing it with plant material that one knows is capable of ignition under the right circumstances, which were very much in place the day of the Poinsettia fire, then every golf course that has removed turf in an effort to reduce its water footprint is subject to a negligence claim whenever a removed area is the source or the mere conduit of a fire otherwise caused by Santa Ana conditions. If nothing else, insurance premiums will skyrocket.
To point two, whether California friendly or native, drought tolerant vegetation burns. It’s the nature of the beast, or more accurately the nature of nature. It’s how natural areas rejuvenate themselves. It’s irrigated turf that is unnatural. To find that restoration of an unnatural area to a natural state constitutes actionable negligence is as curious as it is potentially calamitous to an industry that has been prodded by public policy makers to do just that.
Golf courses have been rebated millions of dollars by government agencies in recent years to remove turf and replace it with “natural” areas, causing one to wonder whether sovereign immunity extends to public utilities and water districts. It also raises the question of whether faithful adherence to the public policy admonitions of government can be construed as a failure to exercise due care. Most would find the opposite to be the case – that flouting the public policy admonitions of government might be a credible element in a failure to exercise due care argument.
To point three, are golf courses expected to irrigate acreage that was restored to a natural state precisely to avoid the need for irrigation? If Omni is found negligent on this count, the answer would be a clear yes, and the implications for the future of turf removal would be devastating.
Lastly, to point four, anyone with the slightest knowledge of irrigation systems understands the impracticality of keeping large portions of them connected to the whole but largely unused. Not to mention the counterproductive nature of such a convolution. The whole point in removing turf is to remove irrigation.
Saska vs. Omni has completed the deposition phase. Absent a summary judgment or pre-trial settlement, both of which appear unlikely at this moment, the case should come to trial in spring 2017. With conservation efforts to stake, you likely want to keep an eye on its progression.
UPDATE: On October 4 Omni La Costa’s motion for summary judgment was granted in its entirety. Plaintiffs have a set period to appeal the ruling; there is still a chance that the matter will go to trial on some of the causes of action. Summary judgment on all counts in a case of this size, scope and complexity is not a usual occurrence. It speaks volumes about the Court’s opinion of the strength of case, which is good news for the Southern California golf industry whether the matter is successfully appealed or not.