Fore! Golf Course Owners: Watch Out for Errant Shots

To drive home her point, Joyce Amaral lugged six plastic buckets containing a total of 1,800 golf balls into court. The balls were just some of those she claimed to have retrieved from her yard in the five years she and her husband have lived in their home bordering a Massachusetts golf course. During a weekend of good weather in golfing season, she said up to a dozen balls typically land on her property.

In a civil suit against the owners of Middlebrook Country Club in Rehoboth, Mass., Amaral complained that flying balls from the club’s course have damaged one large window and five screens, set off her burglar alarm, dented a car in her driveway and generally made her backyard deck unsafe for use during the day. She wants the barrage to stop.

After years of ducking balls, building fences, avoiding her own yard and fighting with Middlebrook, Amaral’s buckets of Titleists, Wilsons and Top-Flites may yet be what brings her peace in her own backyard.

A three-judge panel of the Massachusetts Appeals Court has overturned a lower court, ruling that Amaral along with her neighbors, the Pray family, are entitled to relief. The court sided with the homeowners even though both purchased their properties knowing they were next to the ninth hole of an operating golf course and were familiar enough with the game to expect some errant balls to invade their space. The court also said the fact that the defendants had taken modest steps to try to correct the situation did not matter.

According to legal ob-servers, golf ball property related cases tend to be dismissed early in the process as nuisance claims. The exception is where there is personal injury the plaintiffs usually win. But property owners are often denied relief under the theory they assumed the risk of golf balls hitting their property when they moved next to the course and, in a sense, “came to the nuisance.”

That is pretty much what the trial court decided when it denied the plaintiffs’ request for help.

Continuing trespass theory

The appeals court disagreed with the lower court and found that this case turned on legal precedents regarding trespass, not nuisance. Justice Judge Mark V. Green wrote that the “continuing and frequent invasion of golf balls from the defendants’ course onto the plaintiffs’ properties, resulting from the ordinary conduct by the defendants’ members of the golfing activity for which the defendants intend the course to be used, constitutes a continuing trespass,” for which the appropriate remedy is an injunction. Prior knowledge of the situation-which party had been there first, what mitigation efforts were attempted-none of this mattered because there is no “coming to a trespass.”

Green cited two precedents in particular for the Amaral case. One was Fenton v. Quabog Country Club Inc., 353 Mass. at 536. In Fenton, the plaintiffs purchased a home on land abutting a long-established golf course. Errant golf shots deposited an average of 250 balls per year on the plaintiffs’ land, which caused broken windows, near misses, and one direct hit on one plaintiff. The defendant country club erected a 24-foot high fence, which reduced but did not eliminate the problem. The court affirmed a finding of a continuing trespass, and or-dered an injunction.

The other case was Hennessy v. Boston, 265 Mass. at 560, in which baseballs from the defendant’s field persistently landed on the plaintiff’s property, causing damage. The court held that the acts of the defendant’s invitees “were acts of trespass in so far as they were direct invasions of the property; and they were a nuisance, when not a trespass, because the consequence of them was to deprive the plaintiff of the exclusive right to enjoy the use of her premises free from material disturbance and annoyance.”

Justice Green returned the Amaral case to the trial court and ordered that it enjoin the golf course from continuing the trespass. He left it up to the trial court to determine what form the injunction should take but hinted that changing the ninth hole from a par-4 to a par-3 might remedy the problem.

Not in my backyard

Middlebrook is a small, nine-hole, par 35, private course with relatively low greens fees. By its own account, the course features narrow fairways and greens, is nicely landscaped with flowers and trees, and has water hazards on two holes.

Amaral moved into her home in 1998 and Pray in 1999, years after the country club was built. Its current owners, Peter and Lucretia Cuppels, bought the course in 1981 and were not affiliated with the developers who built the houses near their ninth hole. Amaral testified that the real estate broker assured her that golf balls were not a problem at the location.

How bad has it been for the Amarals? According to the court papers, it has meant more than broken windows and dents on the side of her house. “Though no person has yet been struck by a golf ball on Amaral’s property, the fear of being struck has a significant effect on Amaral’s use and enjoyment of her yard. Amaral restricts her son’s use of the yard for play to an area on the side of her house away from the ninth tee. She seldom uses the rear deck. She contracts with a landscaping company for maintenance of her yard; the members of the landscaping crew wear hard hats while working in her yard,” court papers note.

Both sides in this dispute have tried to mitigate the damage. Amaral erected a fence that kept out intruders in search of lost balls but not the balls themselves. Middlebrook’s owners, in addition to helping pay for damage to Amaral’s windows, eliminated one tee location, put up signs instructing golfers to “aim left,” planted trees on the right side of the fairway, and allowed the grass along a portion of the right side of the fairway to grow longer. Those changes have decreased the number of balls entering the plaintiffs’ properties, but not significantly. The parties also discussed sharing the expense of installing netting along the side of the course, but could not agree on this in the end.

Defendants’ ‘dismayed’

While the homeowners are reportedly thrilled with the decision, the attorney for the club owners told Insurance Journal he was “dismayed.” Michael Drywa Jr., with the firm John Riley & Associates in Warwick, R.I., criticized the decision as a “confusion” of nuisance and trespass law and remedies. He feels it ignores certain facts and twists some of what the lower court said in order to reach its end.

Drywa maintains the appeals court erred in giving the 1,800 golf balls more weight than the trial court did. It was never established that they actually came from Middlebrook and landed on Amaral’s property. The trial court judge did not permit cross examination on the buckets.

Drywa also takes issue with the remedy of redesigning the ninth hole. He argues that this would not only be costly and diminish the appeal of the course but also would “not give them what they want … because there is no guarantee it would totally eliminate the problem.” His clients fear that if a ball were hit into Amaral’s yard after the redesign, they would be in contempt of court.

Dywa’s clients may appeal to the Massachusetts Supreme Judicial Court.

The case is Joyce Amaral & another vs. Peter Cuppels & another, No. 04-P-569, Bristol. March 9, 2005. – July 22, 2005.

The court took the homeowners’ side even though they
knew enough about golf to expect some balls to land

on their properties.