We finally were able to get more information as to why Oro Valley paid $420K to reconfigure the 4th fairway of the El Conquistador golf course, and the country club paid zero.
Two points worth noting.
1) The money came from the state highway funds, and there was no guarantee the money, had it not been spent, would have stayed in Oro Valley, or perhaps been appropriated to another road project within Pima County.
2) The previous OV Town Attorney with the backing of the mayor thought it wise to pay the total amount after the Country Club refused to accept any liability in order to prevent potential litigation against the town.
Do we accept this explanation? Well, at this time, it is a moot point, as the motion to expend the $420K has been approved.
Do we agree with the decision and the rationale? No way--- but "that's the way it is."
19 comments:
No one from which damage originates can
declare themselves free of liability for any reason whatsoever; only a judge or jury can do that if a suit is brought to bear against that party. A person harmed by a projectile originating from such a place would be insane not to include said place on the 'list' of defendants even if the primary action be taken against another party (the Town in this instance) and an attorney leaving off said place most probably would be derilect in the performance of due diligence.
Point taken Zev. However, I think it best to presume that the Town's previous attorney was seeking to REDUCE potential liability stemming from an errant golf ball incident.
Of course liability cannot ever be entirely precluded (except under limited circumstances), but the Town's actions here will certainly reduce the likelihood that a court holds the Town liable for any future errant golf balls after the reconfiguration of the golf green.
That said, I agree with the many other posts arguing that the Town should have worked harder to get El Conquistador to pick up at least a portion of the tab.
And your point is well taken, too, Dan. However, I was responding to the statement that "the Country Club refused to accept liability". They (the Country Club) really have NO say whatsoever in the liability chain; I repeat, [only a judge and/or jury can make that assessment]. As to the prior Town attorney, I was quite unimpressed with her 'lawyering'.
Zev-
While I understand your point about the liability issue, if the CC refused to believe they would have any liability, and therefore saw no reason to put forth any effort to prevent injury, what is the Town left with?
Cyclone1, that the CC refused to believe that they they would have any liability is like an Ostrich burying their head in the sand.
Liability is not a belief; it is an absolute chain of legal responsibility. Yes, the Town perhaps could be declared solely liable in a given circumstance but a dual (or more) responsibility could be established too. It is my belief that, in an instance of damage and a resultant suit, no declaration by anyone other than the court can hold a potential liability as null or void.
Zev-
You missed my point. I am saying during the course of negotiations, if the CC refused to accept or see that they bore some liability/responsibility for making the roadway safe, how was the Town to convince them otherwise and get them to apy for half? And, was the Town just supposed to do nothing, even though it realized that there was a libility issue for all parties? Like Dan wrote, it was about reducing the risk - if the CC saw no risk, even if it existed, can you not see how the Town ended up paying the bill?
Cyclone1 - I don't believe I missed your point; I believe you might have missed mine. Proper LEGAL advice would have demanded that they accept that they could have had, at the very least, some responsibility if an incident should occur. Somehow, I believe, the legal authority failed!
The stupidity of this entire argument is that regardless who was determined to have liability and to what extent, the Town probably saved money in the long run by doing what it did. Even ONE lawsuit could have easily eaten up the $420,000.
But then only narrow minded persons who don't/won't admit the Town is right (EVEN WHEN IT IS)will continue to hapr on this past issue....or to bring it up originally.
OV OT, your reference to our discussion as "stupidity" is a crassly asinine comment.Your presumptive conclusion is misleading and factually in lack of substantive meaning.
Zev...You are being influenced too much by your buddy up on the La Reserve hill. Your instant reaction is to make some attempt to attack the sender rather than absorb the message.
I am not saying that the posts or the postees are stupid, but when you look at the practicality of and the resulting cost of the overall situation, to argue over $420,000 is not an intelligent argument. The maintenance costs of the alternative (a long high ugly screen) would be well over $420,000
in a matter of 3-5 years. And unless you are a golfer and understand the golf dynamics of that hole you (pl) may not have a clue about the rationale behind the hole re-design.
The inability for some to get past the "ALARM" of the initial $420,000 is almost disturbing. There are times when we must look beyond today.
PS...typoed "harp" in original post
Cyclone,
Could the Town have taken the matter to court and let a judge decide how much liability each party should bear?
Thinker,
The argument isn't stupid. We're all just saying that we think more could have and should have been done instead of just rolling over and paying the ENTIRE bill.
Zev-
Couple problems with your statement. First, legal ADVICE is just that, advice. I am sure the CC has competent attorneys that advised them of their potential liability - if they chose to ignore it or disregard the potential, nothing says they have to follow the advice they were given. (I believe you used the word demanded?) Second, I still feel like something is getting lost in the translation through the blog, which furthers my frustration with this form of communication, to pay or not to pay is a business decision, not a legal one. All the best legal advice in the world may not convince a corporation to put up the dough if they don't think they have to. I am guessing the CC didn't think it was worth their while to pay for part of the reconfiguration because they saw their risk as less than the Town's. That still didn't resolve the probelm the Town had to do soemthing to prevent injury.
VC-
Until someone actually gets injured, there is no liability for a judge or jury to determine and a judge would be loathe to make such a prediction. The lawyers for both sides had to make their best, educated guesses on what would happen if a golf ball hit a car or a person. In this instance, apparently the CC didn't think they were much at risk - also apparently, the Town was not as willing to gamble with the public's safety. In my humble opinion.
OV OT
First let us get something straight: I am not influenced by anybody, "my buddy up the La Reserve hill" or anyone else! Be aware that your statement is suggestive of a collective or collaborative process and knowing that you have followed my posts you should recognize that I am my own person.
Pursuing this subject or even reasoning the pursuit of it with you is futile. YOU just don't get it. I will end this by simply stating that virtually any and all 'accidents' that might
happen on the property of the town, whether or not said accident is caused by or resultant of negligence by the Town or by another entity is an opening for a lawsuit against the town as well as the entity that was or might have been the root cause. NOW DO YOU GET IT!
Now, OV OT, get yourself over to La Cholla and fill up some of those chuck holes and crotchity pavements before I file suit against Oro Valley for jarring my brain which might be contributing to the cause of my dementia.
Cyclone,
So what happens next? Suppose that even after the town pays the $420,000 to reconfigure the hole, somebody still gets hit with a golf ball while walking on LaCanada and they get hurt. Who's responsible then?
So far we've only discussed what could happen if we don't address the problem. So now I'd like to know what could happen even if we do? Will it STILL be considered the town's fault?
VC
That's a great question, and the answer illustrates how prudent it was for OV to mitigate its liability by paying the $420k from the outset.
If, following the reconfiguration of the golf link, an individual is injured by an errant golf ball, the following is likely to occur: Injured individual will sue OV, the CC, and any other entity or person he/she sees fit. The injured individual's attorney will insist on filing claims against the "deep pockets."
That said, the parties will either settle the claims, or go to trial. At trial, the judge and/or jury will then weigh the evidence.
Here's where it gets good. Because OV ALREADY payed the $420k in an effort to REDUCE the likelihood of injury, nearly any judge will consequently REDUCE OV's liability in the matter. Courts ALWAYS take into consideration the extent that a liable party has previously attempted to reduce prospective injury.
This does not mean OV will NEVER be liable for a penny, but because OV has taken this proactive step in mitigating injury or loss, the court (and a jury if applicable) will accordingly REDUCE OV's liability.
And for what it's worth, you can trust my unsolicited legal opinion ;)
Cyclone1
I cannot see where or how I might have used the word 'demanded'; that you stated that I did use that word for whatever reason is
really unimportant to me at this juncture.
I would like to correct you however in that to pay or not to pay is NOT necessarily a BUSINESS decision; it can be a legal one if and when it might get to that point. Now, if you meant that to be aimed at the reconstruction, yes, that is a business decision. The waters here have been muddied a bit because it had been previously stated that the CC would have absolved themselves of liability and that they cannot do; that can be a LEGAL result only.
One final note - I have asked on a couple of occassions if, when the course was built, the CC reasonably should have known that La Canada would likely be expanded in the future; if so, this should have been a legal factor in THEIR decision and if they did know, and the Town didn't want to assume the eventual liability, could it have not been then that the Town could have forced the CC to close the hole; maybe not really practical but a bargaining chip.
At any rate, I have said enough in this matter; it just seems to me to be another link in the chain of financial shenanigans that seemingly have permeated this town for a very long time.
Zev-
Although you said it was unimportant to you, I would hate for you to think I was putting words in you mouth; see your post a few back: "Proper LEGAL advice would have demanded that they accept that they could have had, at the very least, some responsibility if an incident should occur."
And I meant to pay for the reconfiguration was a business decision.
Thank you for the clarification, Cyclone1, on both counts; I can assure you it is much appreciated. IN CONTEXT, I stand by the statement I made that did include the word 'demanded'. Incidentally, I do enjoy your participation in discourse; we might have to 'hash' about a bit in order to make our points but yours are well received, at least from my view.
Yes, this form of communication is frustrating at times, unlike interactive forums or face to
face discussions; there is nothing like a good, quick think and creative, non-scornful debate.
Dan,
Thanks for your very informative answer to my question. I sure hope you are correct that both a judge or a jury would see it that way. You seem to have some legal knowledge so I hope you keep posting.
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