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Errant golf balls often stand as par for course

Do residents next to a golf course have a legal right to recover from the golf club or the golfer for injury or damage caused by errant golf balls? Can they force the golf club to take steps to reduce the frequency and severity of the hazard?

These questions are being asked more often these days as developers try to maximize use of scarce land. The National Golf Foundation in Jupiter publishes standards for safe golf course design. It recommends at least 150 acres for a regulation par-72 course. However, it is common to find such courses laid out on 110 or fewer acres resulting in narrow fairways, tight boundaries and severe problems with errant golf balls.

The golf club typically will say that the residence owner is responsible for damage and injuries because the golf course was there first. The fundamental principle in these cases: He who moves next to a golf course "comes to the nuisance" and therefore assumes the risk. The courts will usually accept this general principle and rule in favor of the golf club if the nuisance is moderate _ say, 10 or 12 golf balls per month.

The golf club is also likely to say that the residence owner must track down the golfer who hit the ball in order to recover. This sounds reasonable, but it doesn't always prevail in court. In 1991 the New York State Court of Appeals ruled that Arthur McGovern could not be sued for a ball that he hit that cracked a car windshield and injured the driver. Judge Vito J. Titone wrote, "Although the object of the game of golf is to drive the ball as clearly and directly as possible toward the hole, the possibility that the ball will fly off in another direction is a risk inherent in the game." The golf club settled out of court with the driver of the car for an undisclosed sum.

A different set of rules applies if the frequency and severity of errant golf balls create an "unreasonable" nuisance. As noted above, the courts will rule in favor of the golf club if the nuisance is moderate _ say, 100 or 200 balls per year rolling or bouncing onto adjacent property. However, if 1,000 or more errant balls per year are landing with full force, the courts will view the matter differently. In such cases, golf clubs have been held liable for negligent design and have been ordered to relocate a tee or redesign a hole to minimize the invasion of golf balls onto adjoining property.

A current Florida court case illustrates the above principles very well. Mr. and Mrs. Robert Bechhold purchased a home next to the Dunes Country Club on Sanibel Island in 1983. At the time, the third tee was close to their property, and golf balls rarely fell in their yard. The Bechholds estimate 12 balls per year. In 1988 the golf club moved the third tee and reconfigured the hole, with the result that more than 1,000 balls per year started entering the Bechholds' property.

The Bechholds sued the golf club for relief and damages. The case was heard in Lee Circuit Court and a summary judgment was issued in favor of the golf club. The judge apparently accepted the fundamental principle mentioned above and reasoned that the Bechholds had willingly "come to the nuisance" and therefore had assumed the risk of errant golf balls.

The Bechholds appealed this decision. The appeals court reversed the circuit court ruling, stating, "The issues here are whether the Bechholds are being subjected to more than reasonable exposure to golf balls and what steps, if any, would be appropriate to remedy this problem." The case was sent back to the circuit court for reconsideration.

This time the circuit judge was more cautious. He carefully reviewed all the evidence and actually visited the site of the third hole twice to gather information. After commenting that the case was an extremely close one to decide, he issued a split decision. He ruled in favor of the Bechholds and awarded damages for the period from 1988 to 1990, when he said that 1,000 to 1,200 balls per year were entering the Bechholds' yard. He ruled in favor of the golf club for the period after 1990, because the club had made additional modifications to the hole that reduced the number of errant golf balls.

In his written opinion, the judge estimated that 300 balls per year were now striking the Bechholds' house and pool enclosure and another 300 were rolling onto the property harmlessly. The judge obviously felt that this was an acceptable level of nuisance and ruled that the golf club was not obligated to make further modifications.

The Bechholds did not agree and have appealed this second decision. Arguments were heard on the appeal in September 1993, and the parties to the dispute are awaiting a decision from the appeals court.

What conclusions can be drawn from the above? For adjacent residents: Don't sue the golf club unless you can prove you are being subjected to "unreasonable" nuisance and risk. For golf club owners: Look again at your problem holes to be sure you have taken all reasonable steps to reduce the number of balls that land outside golf course boundaries.

Joseph A. Mahon lives at Isla Del Sol, a condominium and golf course community in southern St. Petersburg. Guest columnists write their own views on subjects they choose, which are not necessarily the opinions of this newspaper.

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