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Helping to create windows of opportunity
24

Errant Golf Balls

Apr 24, 2015

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Brent Hutcheon

 
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Page 1: Errant Golf Balls

Helping to create windows of opportunity

Page 2: Errant Golf Balls

Neighbours and Neighbours and Golf Ball Golf Ball

IntrusionsIntrusionsNational Golf Course

Owners Association ConferenceAugust 28, 2006

Presented by Hillary Stephenson

Page 3: Errant Golf Balls

Problem

• Private properties bordering golf courses• Errant golf balls • Risk of property damage• Risk of personal injury

Page 4: Errant Golf Balls

Issues

• What is the liability of the golf course?

• What legal sanctions could the golf course face?

• What are the steps that can be taken to avoid or reduce liability?

Page 5: Errant Golf Balls

Golf Course Liability

• If a golf ball from a golf course ends up on the property of a neighbour, the golf course may be liable in either, or both of:• Nuisance • Negligence

Page 6: Errant Golf Balls

What is Nuisance?

• UNREASONABLE interference with the use and enjoyment of property• Physical damage to the land• Interference with the exercise of a property

right, such a right-of-way• Injury to the health, comfort or convenience of

the occupier of the property» Carley v. Willow Park Golf Course Ltd.

Page 7: Errant Golf Balls

Definition of “unreasonable”

“Interference must be such as would not be tolerated by the ordinary occupier”

Carley v. Willow Park Golf Course Ltd.

“No use of land is reasonable if it produces substantial discomfort to others,

or materially damages their property”

Page 8: Errant Golf Balls

Primary Consideration

• Frequency of golf ball intrusions

> 200 balls/year NUISANCECarley, Segal, Douglas

Lake, Sammut, Skobleniuk

< 10-20 balls/year NUISANCELakeview Gardens

Page 9: Errant Golf Balls

…other considerations

• Competing interests: “…the court balances the gravity of the harm caused [to the plaintiff] against the utility of the defendant’s conduct…a tolerable balance must be struck between competing interests of landowners…”

» Lakeview Gardens Ltd. V. Regina

Page 10: Errant Golf Balls

…other considerations

• Type and severity of the interference• “barrage” of “hard-driven” golf balls

• The duration of the interference• Sporadic or daily

• The character of the neighbourhood• Standard of tolerance of the community

• The sensitivity of the plaintiff• Informs whether the interference is reasonable

• The conduct of the defendant » Linden, Canadian Tort Law

Page 11: Errant Golf Balls

Negligence: Definition

Failure to take reasonable care in preventing injury to another

Page 12: Errant Golf Balls

Negligence and Errant Golf Balls

Is there a reasonable possibility of a golf ball being hit into the neighbours’ property?

Is there a reasonable possibility of injury and damage?

Page 13: Errant Golf Balls

Negligence and Errant Golf Balls

If so, a duty is owed to the neighbour to take steps to eliminate the problem

Page 14: Errant Golf Balls

….

If the problem is not eliminated, the golf course will be liable

Page 15: Errant Golf Balls

What are the consequences? • Damages

• Awarded for past inconvenience and discomfort• Courts consider mitigation

• Injunction• Order of the court requiring specific actions which

may effectively shut down operations• Douglas Lake Cattle Company v. Mount Paul Golf Course

• In exceptional circumstances, damages may be awarded in lieu of an injunction

• Not available in Provincial Court

Page 16: Errant Golf Balls

Nuisance Damages

• If a nuisance is established, the next issue to address is whether, and to what extent, general damages are an appropriate remedy

• Court considers the following factors:• Frequency/intensity of the nuisance• Amount of exposure to nuisance• Degree to which nuisance interferes with activities• Psychological and physical characteristics of the

plaintiff• Conduct of the defendant

• Douglas Lake Cattle Co. v. Mount Paul Golf Course Inc.

Page 17: Errant Golf Balls

Damages in Nuisance Cases• “barrage” in Carley v. Willow Park ($2,500)• “bombarded” in Segal v. Derrick Golf ($3,000)• 2,577 in Douglas Lake v. Mount Paul (none)• “pummeled” in Sammut v. Islington Golf ($5,000)• > 200, Skobleniuk v. Eaglestar ($4,000)

Page 18: Errant Golf Balls

Examples of Damages Awarded in Negligence• Lakeview Gardens Ltd. v. Regina (City) [2004]

(SK): $73.45 • Sammut v. Islington Golf Club [2005] (ON):

$9,000 in negligence• Cattell v. Bosenberg [2006] (SK): $18,000 and

$6,000• Transcona Country Club Ltd. v. Transcona Golf

Club (1982) Inc. [2002] (MB): $909 (in nuisance and negligence)

Page 19: Errant Golf Balls

Mitigation

Mitigation not necessarily a defence

Mitigation may reduce damages

Page 20: Errant Golf Balls

Mitigation Examples by Golf Courses

Moving tee boxes and greens

Erecting fences

Planting protective trees

Monitors

Page 21: Errant Golf Balls

Mitigation Examples by Driving Ranges

Fences

Golf club restrictions

Re-orienting tee-off mats

Reducing tee height

Limited-flight balls

Monitoring

Page 22: Errant Golf Balls

Other Options

• Effective communication, mediated abatement

• Covenants or easements in purchase agreements where the purchaser acknowledges and accepts the risk

• Redesign

• Closure

Page 23: Errant Golf Balls

Conclusion

• Golf courses may be liable in nuisance and negligence for errant golf balls

• Sanctions can include damages and injunctions

• Mitigation is not a defence, but may impact on the amount of the damages awarded

Page 24: Errant Golf Balls

Hillary Stephenson, LL.B

Alexander Holburn Beaudin & Lang LLP

Phone: 604.642.2424E-mail: [email protected]

The information contained in this presentation is for informational purposes only and does not create a lawyer-client relationship. The information

provided in this presentation is summary in nature and does not constitute legal advice. We would be pleased to provide additional details or advice

about specific situations if desired. For permission to disseminate this information, please contact Heather Gray-Grant, Director of Marketing at

(604) 688-1351.