Michael Kraker, the man behind www.golflawyer.com, maintains that although club owners may think they are safe from liability for errant balls, a case involving Middlebrook Country Club in Rehoboth, Mass., and two neighboring property owners (see page N10, “Fore! Golf Course Owners: Watch Out for Errant Shots”), points out that is not always so.
“This is a topic that makes me tap dance the most,” Kraker, a Minnesota attorney who advises course designers, managers and owners on how best to manage liability and risk, acknowledged in a recent interview with Insurance Journal. “The issue of adjacent property is just a ‘Pandora’s box.’ It’s tough to get a straight reading on what a court will decide.”
Kraker said the best golf courses are designed with a “safety corridor” that takes into consideration how close homes, roads and other off-course properties are to the playing field. But increasingly, with suburban sprawl, developers are building new homes close to existing courses and the club owners have no control.
(In the Massachusetts case, Justice Mark V. Green seemed to suggest that Middlebrook’s safety corridor needed expansion, writing: “To the extent that the ordinary use of the defendants’ golf course requires land beyond the course boundaries to accommodate the travel of errant shots, it is incumbent on the defendants to acquire either the fee in the additional land itself, or the right to use the additional land for that purpose. The defendants assert no claim of right to use, occupy, or propel golf balls onto the plaintiffs’ properties, and we accordingly see no reason why the plaintiffs should be required to suffer such intrusion merely because the defendants commenced operation of the course before the plaintiffs arrived on the scene.”)
Some courses attempt to shift responsibility to individual golfers through language and signs stating that golfers are responsible for their errant shots. “It’s better than nothing but it’s basically ineffective,” believes Kraker.
Homeowners often buy homes adjacent to courses for their aesthetic appeal and the fact that they have high resale value. When a problem with golf balls in their yard persists, they or their neighbors might resist certain mitigation efforts such as fences or netting as eyesores that could lessen the value, Kraker said.
For the golf course owners, even those who strive to be good neighbors, there is a limit to how much damage on adjacent properties they can pay for, Kraker added.
Do golf courses learn from these court rulings? “Selfishly, I always hope that is the case,” acknowledged the attorney who advocates proactive risk management.
But he’s also realistic. “Most courses take a wait-and-see approach and it tends to come back to the economics,” Kraker said.
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