The question often arises as to whether someone who is walking, driving or living around a golf course has any recourse for damages to their person or property that can result from them, or their property, being hit by a golf ball. Usually, unless the person hitting the ball was negligent in the way they hit the ball, there is no legal liability owed to the one hit by either the golfer or golf course. The person who was hit assumed the risk of being hit by being around the course. A good reported local case out of Sanibel illustrates this legal theory of no liability.
In 1983, Robert and Marianne Bechhold purchased a home adjacent to the Dunes Country Club. The country club was owned and operated by Mariner Properties. At the time the Bechholds’ purchased their home, their backyard was very close to the third tee on the golf course and golf balls rarely fell in their backyard (an estimated 12 golf balls per year entered the yard between 1983 and 1988).
Mariner Properties decided to reconfigure the golf course in 1988. As a result, the Bechholds’ backyard ended up being approximately 170 yards from the blue, professional tee on the left side of the hole, which had been redesigned from a par 4 to a par 5 hole. On the right side of the third fairway is a lake and the fairway itself is only about 50 yards wide in the vicinity of the Bechholds’ home. A ball drifting just a few degrees to the left on a shot from the tee may end up in the Bechholds’ backyard.
During the reconfiguration, Bechhold estimated that approximately 1,000 balls per year were entering his backyard. To protect his property, Bechhold reinforced his screen enclosure with hardware cloth and heavy-duty wire mesh. Even after the reinforcement, Bechhold claimed that the balls hit the mesh so hard that some became embedded in the wire. After three windows were broken by balls, Bechhold replaced the standard glass with bulletproof glass. Bechhold also claimed that the balls also damaged the roof and solar heating system. The Bechholds claimed they could not leave their car in their driveway, and they became afraid to use parts of their yard for fear of being hit by a ball.
To minimize the number of balls that roll into the vicinity of the homes on the left side of the fairway (including the Bechholds’) under the new configuration, Mariner Properties’ architects designed bunkers and mounds. Additional trees and shrubbery were planted in the area. Mariner Properties also posted a sign requesting golfers to use “extreme caution” to avoid hitting balls into the residential area. These featured reduced the number of golf balls that came onto the Bechholds’ property to approximately 300 balls per year.
The Bechholds’ filed a civil complaint against Mariner Properties Inc. alleging negligence and private nuisance against Mariner Properties. In reviewing a procedural point of the case, the Second District Court of Appeals, in its 1991 published opinion, set forth the following criteria to be utilized in determining whether a private nuisance exists:
“The test to be applied is the effect of the condition complained of on ordinary persons with a reasonable disposition in ordinary health and possessing the average and normal sensibilities.”
“The law of private nuisance is a law of degree; it generally turns on the factual question whether the use to which the property is put is a reasonable use under the circumstances, and whether there is an appreciable, substantial tangible injury resulting in actual, material, physical discomfort, and not merely a tendency to injure.”
The appellate court sent the case back to the trial court to make a factual determination of whether the Bechholds are being subjected to more than a reasonable exposure to golf balls considering that “living on a golf course and living with golf balls necessarily go hand-in-hand.”
In following up on this case to determine what happened, by making inquiry with the attorney for Mariner Properties, the attorney said that after the appellate court sent the case back down to the trial court, a four-day trial ensued. The trial court ruled in favor of Mariner Properties, finding that their redesign of the golf course was not negligently done, nor did it constitute a nuisance. The court further found that 300 to 350 golf balls per year that impacted the Bechholds’ property after Mariner’s improvements to the course as of the time of trial was not a nuisance considering that the Bechholds decided to live on the golf course. The court did, however, award the Bechholds $1,500 to reimburse them for the expenses they incurred in protecting their property during the course of the redesign. The Bechholds appealed their loss. Ten years after the Bechholds moved to the golf course, they lost their appeal.
This case goes to show that only golfers, and friends of golfers, should live on golf courses. Similarly, if you decide to move to the end of the airport runway, don’t complain about the noise.
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Rob Samouce, a principal attorney in the Naples law firm of Samouce, Murrell, & Gal, P.A. concentrates his practice in the areas of community associations including condominium, cooperative and homeowners associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.