Courses That Are Surrounded by Houses. Who's Responsible for the Damage?

[Goose99]

12 hours ago, boogielicious said:

Great post and thanks for the information @Goose99. One question I have is about the course putting up netting. If the course does this to protect a house, does the homeowner have issue with the view being changed? Can they prevent it?

_____________________

Thanks and you're very welcome.  Your right to a particular view can be a complex subject.  The basic common law is that one does not have a covenant to a view.  Some local jurisdictions alter that rule based on a variety of zoning factors, such as maximum building height, fence restrictions, etc.  So, whatever the golf club builds would need to meet whatever local standards are in place, but would not necessarily need to factor in your view unless you're in one of the rare (I think) jurisdictions that actually does provide property owners a right to a view.

Your question reminds me of a situation I encountered where a club that had been repeatedly sued was forced by its insurer erect a giant, ugly fence.   This is a good lesson in the "be careful what you ask for" category.  This illustrates why it's typically better for surrounding homeowners to work with the club to arrive at landscaping and subtle course corrections, and even offer to share in the cost of those changes, rather than come in, guns blazing, with threatened lawsuits.

[Joe92385]

I think this topic has been pretty well covered, but I just wanted to post one of my favorite quotes (though the case related to hitting another golfer, not a house):

"While golf may not be as physically demanding as other more strenuous sports such as basketball or football, risk is nonetheless inherent in the sport. [FN1]  Hitting a golf ball at a high rate of speed involves the very real possibility that the ball will take flight in an unintended direction.  If every ball behaved as the golfer wished, there would be little 'sport' in the sport of golf.  That shots go awry is a risk that all golfers, even the professionals, assume when they play.

FN1 - Appellant claims that, 'Golf is primarily an activity of the elderly and less athletic.'  If ever this contention had merit, recent events at the Masters and the dominant play of Tiger Woods belie it today."

Dilger v. Moyles (1997) 54 Cal.App.4th 1452, 1454-1455.

[Pretzel]

57 minutes ago, Joe92385 said:

Dilger v. Moyles (1997) 54 Cal.App.4th 1452, 1454-1455.

http://caselaw.findlaw.com/ca-court-of-appeal/1390030.html (The actual report written up about the case)

I would say that the assumption of risk is very much in play here for the homeowner here. Why should a homeowner who lives on the course have a different assumption of risk than a golfer on the course? They know that errant shots are very much a possibility, and they often pay more in terms of an HOA or their Homeowner's Insurance to cover such risks. If there was no assumption of risk why would there be additional fees to living on a golf course in order to cover incidental damage?

[Joe92385]

I think you're probably correct (though I have no idea what the law is in Colorado).  The argument against it applying is that a homeowner is not "participating" in the inherently dangerous activity, though this specific issue appears undecided in California.  There's a good discussion of it in Hernandez v. Ong (2002) 2002 WL 266864 - it's not a published case, but basically: 

"Although not a spectator of the golf being played, one who moves into a house that is adjacent to an existing golf course chooses, as does a spectator, to participate in the benefits of the golf courses' pastoral setting and accepts the inherent dangers of such participation. Persons who move into houses adjacent to existing golf courses are 'sufficiently warned of the risk by common knowledge of the nature of the sport.'"

[Patch]

Perhaps if the golfer is prone to hitting hooks/slices off a tee, that can cause property damage, or personal injury, in a some what cramped playing field, they should take their game else where. That, or use a club that offers more control, shorter distance,  that will keep their ball in the assigned playing field. 

As I am reading some of these posts, here, and other golf forums, it appears there are those golfers who feel it's ok to cause damage/injury because they are not responsible where their tee shot goes. They feel it's the responsibility of others for just being in the way of their mishit. There is something just not right about that way of thinking. 

Edited June 14, 2016 by Patch

[Joe92385]

1 minute ago, Patch said:

Perhaps if the golfer is prone to hitting hooks/slices off a tee, that can cause property damage, or personal injury, in a some what cramped playing field, they should take their game else where. That, or use a club that offers more control, shorter distance,  that will keep their ball in the assigned playing field. 

As I am reading some of these posts, here, and other golf forums, it appears there are those golfers who feel it's ok to cause damage/injury because they are not responsible where their tee shot goes. They feel it's the responsibility of others for just being in the way of their mishit. There is something just right about that way of thinking. 

Not sure whether you're including me in "those golfers," but to be clear, I certainly would feel personal responsibility for causing damage, even if I'm not legally liable for it - I'm just talking about what I find to be interesting case law.

I've hit a few houses, but luckily never caused damage to them.  The funniest reaction I've gotten was, "don't worry about it, happens all the time.  I'm keeping your ball though." (As he put it into a 5 gallon bucket mostly filled with other balls).

The one time I did cause damage was to a car - it was probably my third time golfing.  There was a road to the right of the tee box, and a net between the course and the road.  But there was also a small opening in the next for golfers to come through.  I somehow managed to shank it right into that opening, off the support, and the ball literally stuck in the plastic bumper of a moving SUV.  The driver stopped very briefly, saw me waving him down, and then just kept right on driving... it was a pretty strange shot, and an even stranger reaction.

[Pretzel]

45 minutes ago, Joe92385 said:

I think you're probably correct (though I have no idea what the law is in Colorado).  The argument against it applying is that a homeowner is not "participating" in the inherently dangerous activity, though this specific issue appears undecided in California.  There's a good discussion of it in Hernandez v. Ong (2002) 2002 WL 266864 - it's not a published case, but basically: 

"Although not a spectator of the golf being played, one who moves into a house that is adjacent to an existing golf course chooses, as does a spectator, to participate in the benefits of the golf courses' pastoral setting and accepts the inherent dangers of such participation. Persons who move into houses adjacent to existing golf courses are 'sufficiently warned of the risk by common knowledge of the nature of the sport.'"

They are "participating" in the experience of living next to a golf course and are informed (through HOA's, insurance policies, and common knowledge) that there is an inherent risk to their choice of locale.

42 minutes ago, Patch said:

Perhaps if the golfer is prone to hitting hooks/slices off a tee, that can cause property damage, or personal injury, in a some what cramped playing field, they should take their game else where. That, or use a club that offers more control, shorter distance,  that will keep their ball in the assigned playing field. 

So, in other words, you'd like to discourage beginners from picking up the game because they may hit a poor shot and cause damage that you believe they should be entirely liable for? Not everyone has access to courses that aren't lined with houses, and shanks/slices/hooks etc can happen with any club.

42 minutes ago, Patch said:

As I am reading some of these posts, here, and other golf forums, it appears there are those golfers who feel it's ok to cause damage/injury because they are not responsible where their tee shot goes. They feel it's the responsibility of others for just being in the way of their mishit. There is something just not right about that way of thinking. 

It's not the responsibility of the others for being in the way, but the golfer cannot be held liable since the homeowner accepted an inherent risk when they chose to live on a golf course. It's the same as if you park near a ballfield and your car is damaged by a baseball that leaves the field. The batter is not held liable for the damage to your car unless they are deliberately hitting it with a baseball. 

You wish to indemnify the homeowner entirely, despite the fact that they knowingly accepted the risk of living in a golfing community. That is similar to if someone stood next to the targets at a shooting range and was injured by a ricochet, then blamed the shooter for their injury. Ignoring the potential negligence of the shooting range (for allowing someone to get next to the target while shooting was occurring, pretend the person wasn't visible from the shooter's/range owners perspective at the firing line), the shooter should not be liable for the injury caused to the individual who knowingly accepted the inherent risk of placing themselves in a hazardous area. Similarly, a golfer should not be liable when the homeowner knowingly accepted the risks that are inherent to placing their house directly next to a golf course. 

Your way of thinking is that, even though the homeowner knowingly put their home at risk they should be held blameless. I would say myself that there is "something just not right about that way of thinking" because you're holding the person who took the risk (the homeowner) blameless. The homeowner knew of a risk, they took said risk, and the risk didn't work out how they wanted it to.

I would feel bad if I were to cause damage to a house, but as a college student I cannot afford to repair damage that the homeowner is legally responsible for. I would offer apologies and my services in possibly repairing the damage, but anything beyond that is very clearly not my responsibility due to the assumed risk the homeowner took upon themselves in regards to property damage.

[jamo]

I've never quite understood this topic. Exempting specific agreements with the golf course that a homeowner could sign, I don't understand, logically, how a homeowner could be held liable for damage from an errant golf ball. IMO this post below, particularly the language about "trespassing" explains it better than I've ever been able to.

21 hours ago, Goose99 said:

I don't play golf.  I signed into this site because I live near a golf course, was searching for information related to golf course liability, stumbled upon this thread and thought I may be able to offer some perspective to golfers on this important question.  Yes, I'm an attorney, no, this isn't legal advice, it's just my observations, but yes, I have been involved in matters in Maryland concerning golfer and golf course liability. The law varies by state, so my Maryland experience may not apply to you.  But I will say that the relevant legal principles here are pretty common.

First, in Maryland and many other states, a person is liable for conditions that he creates on his property that cause physical things to enter upon the property of another.  Such things could be water that you've diverted off of your property that floods a neighbor's property, a rivet that flies out of your factory window and into a schoolyard, or a golf ball that sails off your golf course and into a road or neighborhood.  A few states have specific laws exempting golf courses, but by and large, golf courses are no different than any other business in this regard.  Golf clubs have no special allowance to cause things to leave their property and enter a neighbor's property. 

Second, when a golf ball leaves the course's property and enters another property, that is a trespass regardless of whether that was a mistake.  People who cause a trespass are liable for the trespass.  This can be true of the trespasser (the golfer) or an aider and abettor, such as a golf club that was on notice that its golfers regularly hit golf balls onto neighboring property yet continued to allow golf play to proceed as usual. 

Third, "assumption of the risk" is typically not a defense to trespass.  Simply put, assumption of the risk does not trump property rights.  Even if the golf course were built before the road or housing development next door, that fact, alone, does not entitle the club to property rights over adjoining land in the form of some buffer easement where errant balls are allowed to fall.  We wouldn't want such a rule.  Otherwise, each time you buy property, you would first have to determine whether your neighbors had tended to use your property as some sort of buffer zone for their rifle range, as a place where rivets land when the thing they're manufacturing explodes, or as an undocumented dump where they take their tree trimmings.  It would provide perverse incentives for individuals and businesses to trespass, since they could then gain dominion over other people's property.  Only in extreme cases, under adverse possession and similar laws, is that ever allowed. 

And with golf courses, the balls often damage homes that are not even next to the course, but on the other side of a road, whose owners can't even see the course.  Just how far would we demand this zone of enhanced golf course buffer intrusion extend?  In short, if a golf club needs a larger buffer, it should offer to buy neighboring property at fair market value, not get it for free under an assumption of the risk theory.

Finally and perhaps most importantly, people tend to live along golf courses because they either play golf or just like the view.  Golf clubs benefit by having nearby, dedicated clientele, or folks who just keep an eye on the course after hours.  Part of my involvement in this issue has been talking with community associations and golf clubs about working to mutually resolve these liability problems.  It is unrealistic for a golf club to absolve itself of all responsibility, or from a duty to take measures to reduce particular problem areas where neighboring property is routinely damaged. 

At the same time, however, if neighbors truly want zero risk of damage, or full compensations for each and every incident, then the golf course that they supposedly love will probably be forced to close down and be replaced by something less bucolic.  One middle ground is for the club and the neighbors to come to an agreement limiting club liability to a certain, reasonable amount each year (to be held in escrow by the club), and accessed by neighbors in accordance with some priority system set up by the community association or neighborhood coalition.  Often, such a pool of money can be established by the club for pennies per tee time, or a few dollars per member.

The advantage to the club is that such an agreement typically absolves its individual members of liability (absent intentional acts), which can be an attractive selling point, and makes its own liability limits more certain.  The advantage to neighbors is that replaces the need to chase down individuals golfers or fight with the club/insurers over each instance, and also allows the club to continue functioning economically.

Sorry for the long post, but my hope is that this helps provide some helpful food for thought on the issue from someone who has experienced it.

If I OWN a house and a plot of land, I OWN that plot of land. If I haven't signed a specific agreement with the golf course, I don't see how it's logical that I could be held liable for being whacked with a golf ball on land I OWN.

 

28 minutes ago, Pretzel said:

It's not the responsibility of the others for being in the way, but the golfer cannot be held liable since the homeowner accepted an inherent risk when they chose to live on a golf course. It's the same as if you park near a ballfield and your car is damaged by a baseball that leaves the field. The batter is not held liable for the damage to your car unless they are deliberately hitting it with a baseball. 

You wish to indemnify the homeowner entirely, despite the fact that they knowingly accepted the risk of living in a golfing community. That is similar to if someone stood next to the targets at a shooting range and was injured by a ricochet, then blamed the shooter for their injury. Ignoring the potential negligence of the shooting range (for allowing someone to get next to the target while shooting was occurring, pretend the person wasn't visible from the shooter's/range owners perspective at the firing line), the shooter should not be liable for the injury caused to the individual who knowingly accepted the inherent risk of placing themselves in a hazardous area. Similarly, a golfer should not be liable when the homeowner knowingly accepted the risks that are inherent to placing their house directly next to a golf course. 

Neither of these analogies are applicable to my mind. You don't OWN the parking spot you are parked in, and you don't OWN the spot you've decided to stand at that shooting range.

 

29 minutes ago, Pretzel said:

So, in other words, you'd like to discourage beginners from picking up the game because they may hit a poor shot and cause damage that you believe they should be entirely liable for? Not everyone has access to courses that aren't lined with houses, and shanks/slices/hooks etc can happen with any club.

At the risk of sounding crass, yeah, sure. No one has the unalienable right to play golf. If I own a house adjacent to a golf course, it's no skin off my back if you're a beginner and you can't keep it on the course; your errant drives are still trespassing. Your right to play golf is not absolute.

[newtogolf]

3 minutes ago, jamo said:

I've never quite understood this topic. Exempting specific agreements with the golf course that a homeowner could sign, I don't understand, logically, how a homeowner could be held liable for damage from an errant golf ball. IMO this post below, particularly the language about "trespassing" explains it better than I've ever been able to.

If I OWN a house and a plot of land, I OWN that plot of land. If I haven't signed a specific agreement with the golf course, I don't see how it's logical that I could be held liable for being whacked with a golf ball on land I OWN.

In order to purchase and live in that home you may have to sign an agreement that requires you hold the golf course and golfer harmless of damages that result from an unintentionally mishit golf ball.  The agreement is part of the sales contract, it's discussed up front just as some communities don't allow dogs and by signing it, you give up the right to own and keep a dog in that home.   

[Shindig]

14 hours ago, Golfingdad said:

This is exactly correct for at least one (very, very ritzy) neighborhood in my area.  The neighborhood is covered by a "Golf Ball Easement" which indemnifies the course of any damage.  I have a copy (I'll share if anybody really cares to read it) and I've not seen anything within it that mentions the golfers, so I don't know what kind of recourse a homeowner might have against the golfer, but they have no grounds against the course.

I'd be curious to see it.  I'd also be curious which golf course it is -- does it have a name that sounds like a NASCAR movie?

4 hours ago, newtogolf said:

 There are a number of roads that parallel the course and while there are trees to help protect balls from leaving the course they aren't thick enough (especially in the early spring and fall) to act as a real barrier.  

The roads in the community my parents live in, even the houses don't keep the balls in.  There's a golf course through the neighborhood, and sometimes I'll find a ball on the other side of the street from houses that border the course.  I'm still not sure how they get there:  over the house (or between two) and across the road I guess. 

Plus, with all my golf reading, I've only ever seen one book that addressed how to play a ball from someone's living room.

[Pretzel]

12 minutes ago, jamo said:

At the risk of sounding crass, yeah, sure. No one has the unalienable right to play golf. If I own a house adjacent to a golf course, it's no skin off my back if you're a beginner and you can't keep it on the course; your errant drives are still trespassing. Your right to play golf is not absolute.

It is not an unalienable right, but this (whether or not a beginner should golf on narrow courses) is a strawman that avoids the primary argument I have made.

You as a homeowner still have accepted the assumed risk that comes along with living near a golf course. The risk you have assumed is that your house may be hit by an errant shot. You will incur additional HOA fees and homeowner's policy costs as a result of this assumed risk, making it quite clear to you, as the homeowner, that there is indeed a risk that you are accepting by living in that house. You choose to live there anyways. If this risk turns out in your favor and you're never hit, great! If your house is hit, you still are the person who assumed that risk knowingly.

[Fourputt]

5 minutes ago, jamo said:

I've never quite understood this topic. Exempting specific agreements with the golf course that a homeowner could sign, I don't understand, logically, how a homeowner could be held liable for damage from an errant golf ball. IMO this post below, particularly the language about "trespassing" explains it better than I've ever been able to.

If I OWN a house and a plot of land, I OWN that plot of land. If I haven't signed a specific agreement with the golf course, I don't see how it's logical that I could be held liable for being whacked with a golf ball on land I OWN.

 

At the risk of sounding crass, yeah, sure. No one has the unalienable right to play golf. If I own a house adjacent to a golf course, it's no skin off my back if you're a beginner and you can't keep it on the course; your errant drives are still trespassing. Your right to play golf is not absolute.

If you bought the house with the full knowledge that the golf course was there, then you have to accept the risk that an errant golf ball may come your way, unless you are a complete idiot.  

[Big C]

16 hours ago, Club Rat said:

I always felt anyone who unfortunately causes property damage should offer to pay for damages as the "etiquette of the game"

I think that's a reasonable position to hold and I suspect many golfers would agree with you. Where the issue becomes muddy for me is when it veers from minor property damage to major personal injuries. 

Let's say instead of breaking a window, your errant tee shot hits a woman (who happens to be tending to her garden) in the head. The impact results in severe injury, hospitalization and costly surgery. The medical bills are in the 6 figure range. Would the same ethos that makes you feel compelled to pay for a broken window, compel you to accept responsibility to for ongoing medical care, even if it bankrupted you? It's a tough question, IMO. 

As a side-note, a few years ago, I played 9 holes at a local muni with a buddy of mine who is terrible at golf. Most holes are pretty insulated, but one of the par 3's is bordered by houses. Of course, my buddy happens to shank his tee shot on that hole right into someone's backyard. The owner comes right up to the gate and starts swearing at us at the top of his lungs, I have to imagine that we were the 3rd or 4th group that day that had parked one in his backyard. It made me think of how terrible it must be to own a home that borders a tee box. For almost all useable daylight hours, you face the dilemma of having to stay inside all day vs. run the risk of getting beaned if you want the privilege of using your yard. You couldn't sell me a house cheaply enough to live like that.

[Club Rat]

9 minutes ago, Big C said:

your errant tee shot hits a woman (who happens to be tending to her garden) in the head. The impact results in severe injury, hospitalization and costly surgery.

The monetary loss would have no value, compared to the emotional effects all parties would endure from the circumstances.

Also, the majority of people have insurance to cover situations that are accidental.

I only hope I'm never involved with an occurrence which is the result of any golfing incident.

But one never knows, they can only deal with the outcome of which and choose to be accountable if it happens.

I've seen many who run from incidents or never apologize to a homeowner.

[Patch]

Just an FYI here. I own a home on a golf course. I get damage all the time. I foot the bill for the repairs which is 99% stucco (holes) damage. I knew it coming in, and accepted it. Does not mean I think the golfer is not responsible for their errant ball flights. Especially those golfers who continue to use clubs they have no control of.  Luckily we dont prefer to live there. I have the place leased out, and the tenant takes care of the repairs. We settle up twice a year. 

[Aflighter]

Well ill just say im sorry right off the bat but if your house was built after the course was then buddy you cant cry about a ball hitting it because thats price of living on a course.The ones who had a course built afterwards then id feel for them.Theyre should be insurance required to live on a course for instances like that.You have it if you live on beach for flooding.

[Buckeyebowman]

23 hours ago, Patch said:

Yes, home insurance should include some sort of coverage for golf ball damage. But I would also say that "common sense" is two way street. Golfers cause the damage. Not the home owner, sitting in their home, that is just there. 

I know when I go to the golf course, anything I personally do, I am responsible for it. That would include both the good, or the bad. 

It's a can of worms to be sure. I read an article several months ago where a golfer hit a child who was playing in her back yard. The golfer was  a regular, and took weekly instruction from the course's teaching pro. In this instance the home was there before the golf course by several years. The home owner's insurance company paid the little girl's medical/rehab bills. Then the same insurance company went after the golfer, the owners of the course, including the their teaching pro who the golfer had been taking instruction from. Basically it was big money lawyers going after little money lawyers. A settlement was reached, but not publically disclosed. This is how goofy things can get. 

No doubt things can get real goofy! A while back I read, or heard, a story about a golfer suing a course because they were stung by a bee! I never heard any more about it, and I hope the judge threw it out of court. At the time I thought to myself, "I am living in a world I no longer understand!"

[neophyte]

What you and I think should be is right is not necessarily what will happen in court.  The law is not clear so that lawyers can make a living.  And the situation can be an invitation to a court case. You don't go to court without a lawyer and a simple court case can cost $5000 to $10,000 in legal fees.  That's why I have golf liability insurance.  It doesn't cost much and also covers mishaps with golfers and the golf cart.