Helping to create windows of opportunity

Neighbours and Neighbours and Golf Ball Golf Ball

IntrusionsIntrusionsNational Golf Course

Owners Association ConferenceAugust 28, 2006

Presented by Hillary Stephenson

Problem

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

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?

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

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.

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”

Primary Consideration

• Frequency of golf ball intrusions

> 200 balls/year NUISANCECarley, Segal, Douglas

Lake, Sammut, Skobleniuk

< 10-20 balls/year NUISANCELakeview Gardens

…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

…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

Negligence: Definition

Failure to take reasonable care in preventing injury to another

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?

Negligence and Errant Golf Balls

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

….

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

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

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.

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)

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)

Mitigation

Mitigation not necessarily a defence

Mitigation may reduce damages

Mitigation Examples by Golf Courses

Moving tee boxes and greens

Erecting fences

Planting protective trees

Monitors

Mitigation Examples by Driving Ranges

Fences

Golf club restrictions

Re-orienting tee-off mats

Reducing tee height

Limited-flight balls

Monitoring

Other Options

• Effective communication, mediated abatement

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

• Redesign

• Closure

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

Hillary Stephenson, LL.B

Alexander Holburn Beaudin & Lang LLP

Phone: 604.642.2424E-mail: hstephenson@ahbl.ca

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

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(604) 688-1351.