Developer Liability

By David A. Grieme

"It is generally known that the average golfer does not always hit the ball straight."

-Patton v. Westwood Country Club Co., 247 N.E.2d 761, 763 (Ohio Ct. App. 1969)
Golfing communities_real estate developments that integrate a golf course with a residential community_ have become increasingly popular throughout the country. An avid golfer may dream of a spacious home overlooking the 18th hole of a picturesque golf course. This vision may change, however, when the golfer steps off the course and into the home. Flying golf balls do not mix well with windows, cars and people, but they do mix occasionally, causing property damage and personal injury to homeowners and their guests. Even if no physical damage or injury occurs, a steady rain of golf balls on one's property, a parade of golfers in search of stray balls or simply the perceived loss of the use of the yard can frustrate and anger owners of homes adjoining golf courses and may result in actionable harm. Golf course developers and owners have therefore become increasingly concerned about their potential liability for damage caused by "average golfers."

Often the homeowner cannot identify the golfer who caused his or her injury. Even when the homeowner can identify the golfer, the desired remedy may not be available against the golfer. Thus, the developer, the golf club, its members and other related parties may find themselves defendants in lawsuits seeking redress for a homeowner's actual or perceived injury. The relief a homeowner seeks may include both monetary damages for personal injury and property damage and injunctive relief requiring the golf club to cease operating the course in a manner that causes the harm. Courts addressing these claims have treated them with a mixture of tolerant humor and inconsistent legal analysis. Homeowners generally seek relief under one or more of three grounds_private nuisance, trespass and negligence_although sometimes the lines between these theories are blurred. Most, but not all, decisions on this subject have been favorable to the developers and golf clubs. For simplicity, this article will use the term "golf club" to refer to developers, golf clubs, club members and similar parties.

To obtain relief under a private nuisance theory, a property owner must show that another's conduct has invaded his or her private use and enjoyment of land and that the invasion is either (1) intentional and unreasonable, or (2) unintentional and actionable under the rules applicable to negligent or reckless conduct. Restatement (Second) of Torts 822 (1977) (Restatement). Relief for a nuisance claim is usually an injunction requiring abatement of the nuisance.

In reported cases, homeowners have had a hard time meeting this standard. For example, in Nussbaum v. Lacopo, 265 N.E.2d 762 (N.Y. 1970), the court denied liability for an adjoining property owner's personal injuries under a nuisance theory. In doing so, the court stated that "[n]uisance imports a continuous invasion of rights, and the occasional 'once or twice a week' errant golf ball that was found on plaintiff's property does not constitute sufficient impairment of plaintiff's rights." Id. at 765. Adopting a theme that many similar cases echo, the Nussbaum court observed that "one who deliberately decides to reside in the suburbs on very desirable lots adjoining golf clubs and thus receive the social benefits and other not inconsiderable advantages of country club surroundings must accept the occasional concomitant annoyances." Id. (citation omitted).

In contrast, in Fenton v. Quaboag Country Club, Inc., 233 N.E.2d 216 (Mass. 1968), the court upheld an injunction against a golf club and indicated that the property owner was entitled to a remedy for trespass. Nevertheless, the court began its analysis of the injury under a nuisance standard and found an invasion of the private use and enjoyment of land, without even discussing intent, un-reasonableness or negligence. Even when it is applied, the reasonableness standard for intentional invasion is not impossibly high.

Bechhold v. Mariner Properties, Inc., 576 So. 2d 921 (Fla. Dist. Ct. App. 1991), involved a suit brought under both nuisance and negligence theories. After a golf club had redesigned its golf course, a homeowner claimed that the number of golf balls falling on his property increased from 12 to about 1,000 per year. In reversing a summary judgment in favor of the golf club, the appellate court acknowledged that "[l]iving on a golf course and living with golf balls necessarily go hand-in-hand." Id. at 923. The court continued:

The burden on a movant who seeks a summary judgment in a negligence or private nuisance action on a factual question of reasonableness is very high. . . . The issues here are whether the Bechholds are being subjected to more than a reasonable exposure to golf balls and what steps, if any, would be appropriate to remedy this problem.

Id. Thus, a golf club seeking to limit its liability cannot ignore the private nuisance theory.

The tort of trespass is generally defined as intentionally entering the land of another or causing a thing or a third person to do so. Restatement 158. Proving entry of a thing_a golf ball_is not a problem. The golf club usually does not challenge the property owner's assertions that many golf balls are landing on his or her property, denting automobiles and striking people and pets. Instead, the golf club raises, and the plaintiff typically fails to meet, the intent requirement.

In Malouf v. Dallas Athletic Country Club, 837 S.W.2d 674 (Tex. Ct. App. 1992), the court considered the claims of three adjacent homeowners who had suffered damage to their homes and cars. In a detailed dis- cussion of the legal requirements for trespass, the court reasoned as follows:

A trespass is usually regarded as an intentional tort in the sense that it involves an intent to commit an act which violates a property right, or would be practically certain to have that effect. . . . Unless the intended act would violate a property right, the actor's liability for unintended consequences ordinarily depends upon proof of negligence. . . .

The evidence supports the trial court's findings and conclusions that appellants suffered . . . injury. . . . However, the record reflects neither legal nor factual evidence that either [the country club] or the individual golfers intended to commit an act which violated a property right. During a game of golf, on the [adjoining] course, the individual golfers intend to hit golf balls toward hole number six. This does not violate a property right. The fact that the ball may "slice" or "hook" onto appellants' properties is an unintended consequence.

Id. at 676-77 (citations omitted).
Malouf held that a golfer's intent to hit the ball is insufficient. Rather, the plaintiff must show that the golfer hit the ball with the intent that it wrongly enter the property. Because the court found no evidence of that intent, it declined to address the further question of whether the golf club could be held responsible for its patrons' trespass. Thus, a golf club should not be liable for trespass based on the golf shot itself.

It is an unavoidable fact of golf, however, that where a golf ball has unintentionally gone astray, a golfer may intentionally follow. When a golfer enters private property looking for a lost ball, there is an intentional trespass. In that situation, without some further defense, the golf club's liability for trespass likely will be easier to sustain.

Moreover, not all of the relevant decisions thoroughly analyze the legal requirements for trespass. The courts often confuse concepts of trespass and nuisance. In Fenton, an amused court examined the case of John Fenton, a property owner neighboring a golf course who was "not familiar with the details of the game of golf" and who experienced an average of 250 balls per year landing on his lawn. Fenton, 233 N.E.2d at 217. This number fell to 81 balls per year after the club installed a 24 foot fence. The court noted that "[e]xcept for a few isolated occasions [in one case a ball was driven at the house with the words 'Hi Johnnie' written on it], these balls were not intentionally directed at the Fenton estate." Id. at 218. Nevertheless, the master assigned to the case had found that the 81 balls per year were "a continuing nuisance and trespass," and the court affirmed that decision.

As authority for this holding, the Fenton court cited Stevens v. Rockport Granite Co., 104 N.E. 371 (Mass. 1914), a decision that was based solely on the law of nuisance. The Fenton court ignored both the elements of trespass and most of the requirements for private nuisance, examined only whether there was an invasion and did not consider whether the conduct was intentional, reasonable, negligent or reckless. Fenton is another example of the confusing way in which courts have applied the law of private nuisance to grant equitable relief as opposed to an award for damages.

See Restatement 822 cmt. d (1977). Golf clubs would be well advised to take active steps to avoid trespass liability, as well as nuisance liability.

In general, a claim of negligence requires:

  • an interest of one party that is protected against unintentional invasion;
  • an invasion of that interest by another's negligent conduct;
  • that the negligent conduct is the legal cause of the invasion; and
  • that the injured party has not disabled himself or herself from bringing an action.

Conduct is negligent if it violates the standard established by law to protect others from unreasonable risk of harm. Restatement 281. Although the facts may vary, negligence cases against golf clubs generally fall into one of two categories: (1) negligent design or modification of the course; and (2) vicarious liability for players' negligence. Although the reported cases favor golf clubs, there is no assurance that a court will rule against the homeowner in a negligence action.

For example, in Nussbaum, 265 N.E.2d 762, the court held that a golf club was not negligent when a trespasser's extremely poor shot struck the owner of an adjoining home. There was evidence that the golf club had ejected the trespasser on multiple occasions. The appellate court found that the evidence demonstrated sufficient control over those allowed to play. The court also cited another case in which a young player used the golf course with the club's permission. Id. at 764 (citing Ramsden v. Shaker Ridge Country Club, 259 N.Y.S.2d 280 (N.Y. App. Div. 1965), aff'd, 223 N.E.2d 35 (N.Y. 1966)). The Nussbaum court observed that, in Ramsden, the plaintiff had not affirmatively shown inadequate supervision of course users, and thus the club was not negligent. Although this result is encouraging for golf clubs, given the right facts, a club could still be liable for negligently permitting use of its course.

Similarly, in cases claiming negligent design or redesign of golf courses, an assumption of the risk argument_coupled with facts showing reasonable attention paid to directing balls away from homes or installing landscaping to protect them_should avoid a finding of liability. Nevertheless, there is a limit to this generally high barrier to liability. In Bechhold, 576 So. 2d 921, the appeals court reversed the lower court's summary judgment in a negligence and nuisance action. The court stated that a factual determination must be made that the number of golf balls landing on the adjoining homeowner's property is "more than reasonable." Id. at 923. The clear implication is that negligence liability can still be found and that assumption of risk as a defense to negligence actions has its limits.

Avoiding the Rough
Just as a golf course designer can lay out the course to steer balls away from residences, the "designer" of a golfing community's restrictive covenants can reduce the golf club's liability risk. A lawyer drafting the covenants should consider including an easement for golf course users, coupled with a waiver of liability that protects the golf club but is not so broad as to completely eliminate the injured party's ability to recover damages for physical injury. The following clauses may offer a good starting point:

Grant of Easement. Every Lot of the development is hereby burdened with an easement allowing golf balls hit by any golfers using the golf course to come over and on each such Lot. All golfers using the golf course shall have an easement to come on each Lot of the development for the purpose of seeking and retrieving such golf balls; provided that golfers shall not have the right to use such easement to come on any fully fenced Lot. The foregoing easement shall not relieve golfers using the golf course of any liability they may have for property damage or personal injury resulting from the entry of golf balls or golfers on any Lot.

Waiver of Liability. The de-clarant, the owners association and its members (in their capacity as members), the developer and any successor in title to the golf course, and any agents, servants, employees, directors, officers, affiliates, representatives, receivers, subsidiaries, predecessors, successors and assigns of any such party, shall not in any way be responsible for any claims, damages, losses, demands, liabilities, obligations, actions or causes of action whatsoever, including, without limitation, actions based on (a) any invasion of the Lot owner's use or enjoyment of the Lot, (b) improper design of the golf course, (c) the level of skill of any golfer (regardless of whether such golfer has the permission of the management to use the golf course), or (d) trespass by any golfer on the Lot, that may result from property damage or personal injury from golf balls (regardless of number) hit on the Lot, or from the exercise by any golfer of the easements granted hereby.

See Wayne S. Hyatt, Drafting Documents for Condominiums, PUDs and Golf Course Communities, C833 ALI-ABA 287 (ALI-ABA Course of Study) (March 25, 1993).

Of course, the language of the easement and waiver must be tailored to the specific community plan. For example, there may be common areas owned in undivided shares by all lot owners. If so, the easement should be extended to those com-mon areas. Additionally, the list of beneficiaries of the waiver should include all parties involved in the development and management of the relevant course. Although the suggested easement and waiver cannot be expected to eliminate all claims, particularly if a party has engaged in gross negligence or intentional misconduct, these kinds of provisions should significantly reduce the potential for such claims. Finally, the enforceability of the suggested easement and waiver against later purchasers of the residential lots is beyond the scope of this article. Counsel should consider that issue under applicable state law.

Significant hazards remain in protecting the golf course developer or owner against tort liability for errant golf balls. The real estate practitioner representing the golfing community's developer is in a unique position to provide that protection. David A. Grieme is an associate with Streich Lang, P.A. in Phoenix, Arizona.

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