Jurors didn't agree about the resort. They did conclude that Dalton was negligent because he should have checked to be sure nobody was still playing around the dogleg, out of his sight. However, the jury decided that Cottam also contributed a degree of negligence, which meant he could not recover any damages for his injuries.
The jury concluded that Pinehurst Inc. and ClubCorp, which owned the resort at the time, were not negligent at all. ClubCorp operated the 2003 tournament in which Cottam and Dalton were playing.
"Pinehurst and ClubCorp are extremely grateful for the jury's patience through this monthlong ordeal," said Mike Newman, a Pinehurst attorney representing Pinehurst and ClubCorp. "We are pleased that they followed the law, followed the judge's instructions and used their common sense.
"We believe Pinehurst is the safest country club in the world. We look forward to putting this unfortunate incident behind us."
Cottam's lawyers took weeks to make their case, but defense attorneys took only days. The jurors took minutes to make up their mind.
"This may be the longest trial of this kind since the eight Lords Proprietors walked into the Carolinas," Superior Court Judge V. Bradford Long said at one point in the trial.
The case took four weeks to try, a record for civil cases in the courts of Moore County if not the state. It started Monday, April 16, and did not end until after 5 p.m. Friday.
Experts on golf and medicine testified. Cottam's wife, Linda, took the stand. Cottam himself testified. The jury heard day after day of testimony in the form of depositions, both video and written. There was a limit on the number of witnesses who would take the stand, but no effective limit on depositions.
Ancient Law Applies
The "contributory negligence" defense in North Carolina is old law, going back to the common law of England. The only other states that recognize contributory negligence as an absolute defense are Maryland, Alabama, Virginia, and the District of Columbia. Under that doctrine, any defendant who successfully convinces a court that the plaintiff is also negligent -- to whatever degree, however small -- will prevent the plaintiff from recovering any damages, no matter how severe the loss.
Most jurisdictions have moved to the notion of "comparative negligence," with damages discounted in proportion to shared responsibilities for an injury or loss.
Only one "trump card" can defeat a contributory negligence defense. That is the doctrine of "last clear chance." Under this rule, Cottam could still have collected damages if his lawyers could have shown that Dalton had the last opportunity to avoid the injury and, through his own negligence, failed to do so.
In this case, Cottam's attorneys would have been able to argue to the jury that Dalton should have gone forward to check and see the course was clear before hitting his tee shot -- even if Cottam was to some degree at fault for playing through too slowly and not making sure the members of Dalton's following foursome knew Cottam and his fellow players were still ahead of them.
Had lawyer Mark Sternlicht been able to make that argument to the jury, Cottam might have prevailed -- at least against Dalton, if not the resort. Sternlicht asked Long to include "last clear chance" in his jury instructions. Long denied this request, and in that moment Sternlicht knew his client could lose.
The jurors decided Cottam had been negligent to a degree. After the trial, a number of them talked about his team's slower-than-normal play two holes back. That showed negligence on Cottam's part, they said. Just to be sure of their position, they sent a note out asking for clarification and were referred to the verdict sheet. It clearly said that answering "yes" to whether Cottam was negligent would put an end to jury deliberation.
Complicated Instructions
Defense attorneys Newman and James Jordan (for ClubCorp and Pinehurst) and Steven Lawrence (for Dalton) began and completed their defense in three days last week. They were finished by Thursday morning. The rest of Thursday was spent hammering out "pattern jury instructions."
That was when Cottam's lawyers fought hard to get the issue of "last clear chance" before the jury. They persisted even after Long had ruled against them, asking him to reconsider. At the end of the day Thursday, Long told them he would read the relevant case law and their request again before the next day. He said he would leave the door open a crack but advised them to prepare for closing arguments based on his denial.
Final arguments started late Friday morning. Long sent the case to the jury a little after 4 p.m.
Jurors had nine questions they could answer. The first three had to do with whether Dalton, ClubCorp, or Pinehurst Resort were negligent. The fourth asked if Cottam was himself negligent. The fifth asked how much money Cottam should recover if any of the first three questions were answered in the affirmative and the fourth in the negative.
"It can be a nominal sum," Long said. "Such as one dollar."
The remaining queries had to do with loss of consortium suffered by Linda Cottam. She could recover only if her husband recovered damages.
Within minutes after receiving the verdict sheet, jurors sent out their note asking to know whether, if they answered "yes" to the question of whether Cottam was guilty of contributory negligence, that would end deliberation.
The answer to that was clearly "yes," defense lawyers said. Cottam's attorneys suggested Long just reaffirm instructions already on the verdict sheet. After the jury came back into the courtroom, Long told them to go back and read the charge sheet carefully. The answer to their question was already on it.
If they answered yes to the fourth question, deliberations would stop. The long trial and their service would come to an end immediately if they found Cottam to any extent negligent himself. They did, and it did.
John Chappell can be reached at 783-5841 or by e-mail at jchappell@thepilot.com.
