Whoops! There Goes Another Picture Window!

 Whoops!  There Goes Another Picture Window!

  Is you hook your drive off of the third tee into an adjacent residence’s backyard, have you ever considered your potential liability if it bounces off the homeowner’s head?  It has become common in the past 25 years to build golf courses adjacent to residential communities often integrating the two land uses since golf courses make such attractive backyard extensions.

  But, ah, the bonk factor!  What happens when people are trying to enjoy a barbeque in their yard, and an uninvited round white missile lands in their midst?  It can be anywhere from unpleasant to dangerous.  You guessed it: enter the lawyers.

  Suppose a golf course has existed for decades and has been surrounded by vast open fields which have caught the eyes of a residential developer.  Fairly suddenly, the course is adjacent to and surrounded by homes, usually fairly expensive, and people who want the experience of viewing the lush greenery of the fairways from their dining rooms.  These folks do not want their car hoods dented, picture windows broken, or their guests wacked on the head by wayward golf balls.

  Can it be reasonable to penalize the owners of the golf course?  In a recent Massachusetts case, Amaral v. Cuppels, the issue was considered.  The plaintiffs brought buckets containing 1,800 golf balls which they claimed were only some of those which had descended on their backyard over five years.  The husband had been struck while working on the roof, their house and car had been damaged several times, and many balls had landed in their swimming pool   And it was not just golf balls; routinely the golfers responsible for the misdirected balls would come onto the property to retrieve the balls.

  But, is it fair for the plaintiffs to be given relief since the golf course predated their residence by several years?  The Massachusetts Supreme Court thought it was; it granted an injunction to the homeowners on the ground that the invasion of the golf balls was a continuing trespass.  Ultimately, the parties settled by having the golf course owners shorten the hole which had been the source of most misdirected balls.  Understandably the case has created serious concern across the country  by owners of golf courses.

  Developers, who often build golf courses concurrently with residential tracts as  integrated communities, have deflected this kind of litigation to some degree by making the purchasers of the homes agree to assume all risks regarding golfers on the adjacent courses.  And where the developers create home owners’ associations, some of these agreements indemnify the associations against liability resulting from such litigation.  Other developers are taking a saner approach and designing the courses in a way that minimizes the likelihood of invasions into the residential areas.

  What the Massachusetts litigation did not address and is always an intriguing question is what liability does the individual golfer (apart from the course owner) have to these same homeowners if an injury should occur.

  Finally, there is the possible issue of prescriptive rights.  If the owner of a tract enters adjacent land of another for some purpose (usually a passageway) in an open and “hostile” manner continuously for 21 consecutive years, he may gain a permanent easement by prescription.  Since users of golf courses routinely spray adjacent lands with errant golf balls, have the owners of the course obtained a permanent right to so by prescription?  The principle was not raised in the Amaral case, but it does present an interesting possibility.

  Hack away!
 Ken Butera


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