Court Says Operation of Golf Range Is ‘a Private Nuisance’

Jan 26, 2006

A New York State appeals court has affirmed a trial court’s ruling that permanently enjoined a golf course facility from operating its driving range “in a manner which constitutes a private nuisance and causes a trespass on the plaintiffs’ property.”
However, the appeals court did provide some relief to the defendant, the Seawane Golf & Country Club, Inc. in Hewlett Harbor, New York, holding that the plaintiff was not entitled to punitive damages.
In many ways, the case highlights how improvements in golf equipment can alter the relationship between a facility and its residential neighbors. The plaintiffs lived across the street from the defendant’s golf course and driving range ever since they purchased their home in 1982. The defendant has operated its golf course and driving range continuously since 1927. The only barrier between the range and the road was a 5-foot high wire mesh fence and some scattered trees. The plaintiffs’ house faces the road, opposite the range.
The tee area of the driving range is approximately 130 to 150 yards from the road. According to the court’s summation of the facts, “golf balls from the driving range have landed with great frequency and force on the plaintiffs’ property, causing several incidents of property damage and presenting a continuing threat of property damage and personal injury.
“The plaintiffs and others have reported the condition to the defendant numerous times over the past 21 years and, although the defendant has paid compensation for damages on at least three occasions, it has disavowed liability and has failed to prevent golf balls from continuing to enter the plaintiffs’ property.”
The plaintiffs moved for a permanent injunction and for summary judgment on the issue of liability on their causes of action, alleging a private nuisance, public nuisance, trespass, and negligence. The defendant cross-moved for summary judgment dismissing the complaint. The Supreme Court denied both the motion and the cross motion.
The appeals court sided with the plaintiff, noting that the defendant’s conduct constituted a private nuisance “because the operation of the driving range in a manner that allows golf balls to continuously escape the range produces a tangible and appreciable injury to the plaintiffs’ property that renders its enjoyment especially uncomfortable and inconvenient (cf. Nussbaum v Lacopo, 27 N.Y.2d 311, 315, 265 N.E.2d 762, 317 N.Y.S.2d 347; see also Hoffman v Foxfire N., 1 A.D.3d 1005, 767 N.Y.S.2d 352).”
The plaintiffs also “established that the defendant’s conduct constitutes a trespass because the golf balls have invaded the plaintiffs’ property with such frequency and over such a long period of time, without defendant even attempting to remedy the situation, as to amount to willfulness (see Izzo v Town of Smithtown, 293 A.D.2d 653, 740 N.Y.S.2d 447; Zimmerman v Carmack, 292 A.D.2d 601, 602, 739 N.Y.S.2d 430).
“Finally, the plaintiffs established that the defendant was negligent because it breached its duty to exercise reasonable care in the maintenance and use of its property to prevent foreseeable injury that might occur on adjoining property by failing to take precautions in design and location, in the form of play, or in the erection of protective devices as a safeguard against injury to the plaintiffs (see Hawkes v Catatonk Golf Club, 288 A.D.2d 528, 530, 732 N.Y.S.2d 132; Gayden v City of Rochester, 148 A.D.2d 975, 539 N.Y.S.2d 211; see also Nussbaum v Lacopo, supra at 317; Welch v City of Glen Cove, 273 A.D.2d 302, 708 N.Y.S.2d 475).”
“Therefore,” it wrote, “the Supreme Court erred in denying those branches of plaintiffs’ motion, which were for a permanent injunction and for summary judgment on the issue of liability on their causes of action alleging a private nuisance, trespass, and negligence.”
At the same time, the court found that the plaintiffs failed to make a prima facie showing that they were “entitled to summary judgment on the issue of liability on their causes of action alleging a public nuisance because they did not allege a special injury beyond that suffered by the community at large (see Wheeler v Lebanon Valley Auto Racing Corp., 303 A.D.2d 791, 793, 755 N.Y.S.2d 763).
“While the public nuisance claim was predicated on the allegation that golf balls landing on Seawane Drive, a public road, render passage on the road dangerous to the public, the plaintiffs did not allege that they personally had been injured as a result of a golf ball landing on the road,” wrote the panel of judges in affirming the trial court’s decision denying the plaintiffs’ motion for summary judgment on the issue of liability.
Lastly, the court found that the defendants were entitled to summary judgment, dismissing that part of the complaint that sought punitive damages. “Punitive damages may be awarded only where the defendant is guilty of ‘quasi-criminal conduct,’ ‘utterly reckless behavior,’ ‘a malicious intent . . . to injure plaintiffs,’ or of ‘gross, wanton or willful fraud’ (Maitrejean v Levon Props. Corp., 87 A.D.2d 605, 605-606, 448 N.Y.S.2d 46, affd 57 N.Y.2d 902, 442 N.E.2d 1274, 456 N.Y.S.2d 763).
“While the plaintiffs’ evidence demonstrated that the defendant had knowledge that the golf balls from its driving range were causing damage, and the complaint characterized the defendant’s conduct as ‘willful and reckless,’ there was no evidence that the defendant’s behavior was utterly reckless, malicious, or fraudulent.”
Melvin Gellman, et al. v Seawane Golf & Country Club, Inc.; Sup. Ct. N.Y., App. Div., 2d Dept.; 2005 NY Slip Op 9277; 12/5/05.
Attorneys of Record: Fiedelman & McGaw, Jericho, N.Y. (James K. O’Sullivan of counsel), for appellant-respondent. Troutman Sanders, LLP, New York, N.Y. (Clement H. Berne of counsel), for respondents-appellants.


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