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  1. #1
    dennis cornelsen Guest

    Angry

    I live in El Cajon California, My home is on the golf course fairway. I currently have 5 broken windows , 2 boards on a wood fence..two plastic patio chairs and one ceramic tile on the roof broken by golf balls. I have called the golf course and written letters and they replied they are not liable and have no insurance...the golfer is responsible...we are not at home when most of these occured and how can we find the golfer who did the damage...Is the course responsible for this damage is my question ?
  2. #2
    JETX is offline Senior Member
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    Probably not. The golf course is not the cause or source of your damage, the golfers are the ones responsible for the damage.

    Also, if you purchased your home or lot in a 'golf community', there may be some provision in your Deed of Trust that indemnifies the community or golf management from any claims made as a result of YOUR choice for a 'course lot'.

    Have you talked with your insurance company about coverage for the damages you describe?
  3. #3
    I AM ALWAYS LIABLE is offline Senior Member
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    Originally posted by dennis cornelsen
    I live in El Cajon California, My home is on the golf course fairway. I currently have 5 broken windows , 2 boards on a wood fence..two plastic patio chairs and one ceramic tile on the roof broken by golf balls. I have called the golf course and written letters and they replied they are not liable and have no insurance...the golfer is responsible...we are not at home when most of these occured and how can we find the golfer who did the damage...Is the course responsible for this damage is my question ?
    My response:

    I respectfully disagree with my good friend, Steve, when he says:

    "Probably not. The golf course is not the cause or source of your damage, the golfers are the ones responsible for the damage."

    On the contrary, the Golf Course is the source (not the players - the players are merely playing the game where it has been made available for them to play) - - the golf course is, in fact, the "efficient proximate cause" of a continuing nuisance; i.e., "but for" the Golf Course being in existence, would golfers be hitting balls ? And, would our writer be suffering "golf ball hits" to his property that cause property damage?

    But, under certain circumstances, assumption of risk continues to be a complete defense in a negligence action. However, in determining whether a plaintiff’s assumption of risk is a defense, courts no longer decide whether the plaintiff’s conduct in assuming the risk of injury was reasonable or unreasonable. Rather, courts now determine whether the plaintiff’s assumption of risk was primary or secondary. Primary assumption of risk exists where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury. Secondary assumption of risk exists in those situations where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty. [Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696; Ford v. Gouin (1992) 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724]

    Another example involves land zoned as a golf course adjacent to plaintiff’s property. The trial court correctly found that golf balls hit from defendants property onto plaintiff’s land constituted a private nuisance. [Sierra Screw Products v Azusa Greens, Inc. (1979, 2nd Dist) 88 Cal App 3d 358, 151 Cal Rptr 799]

    Although acquiring land after a nuisance interfering with the land has already come into existence does not constitute consent to the nuisance, it is a factor to be considered in determining whether the nuisance is actionable.

    The court in Hellman v La Cumbre Golf & Country Club (1992, 2nd Dist) 6 Cal App 4th 1224, 8 Cal Rptr 2d 293, found that homeowners who moved to property next to golf course that had been in operation for almost 30 years had constructive notice that golf balls would be landing on their property, which was important factor in determining that golf course was not nuisance; compare Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 52 Cal.Rptr.2d 518 (court distinguished landlord’s consent to tenant’s nuisance activity from "the generally repudiated coming to the nuisance" doctrine, which precludes landowner from complaining of nuisance whenever nuisance-causing activity predates landowner’s acquisition of property).

    I agree with my good friend, Steve, when he asks you to check your Deed. You may have, in fact, agreed to certain easements, restrictions, and covenants concerning the golf course.

    Notwithstanding such Deed provisions, you may be able to sue the golf course for "private nuisance" and for "injunction" relief. However, rather than extensive and expensive litigation, it may be far less time-consuming and expensive to merely erect two flag poles and string netting between them to separate and protect your property from that of the golf course.

    Good luck to you.

    IAAL

    [Edited by I AM ALWAYS LIABLE on 05-21-2001 at 12:42 PM]
  4. #4
    JETX is offline Senior Member
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    I just knew that my 'post' was going to bring a great response from IAAL!!! <grin>

    Again, California law seems to protect the 'guilty' (purchasing property adjacent to a golf course has inherent risks that are assumed by the purchaser), where Texas law would inherently assume the purchaser was aware of those risks, and accepted them, when he knowingly purchased the property. Kind of like buying a lot next to a sewage treatment plant, then sueing them because of the 'odiforous odor'!! Or standing in the middle of the fairway and suing for personal injury when you run under the ball!!

    In Texas, you might be able to sue, but we apply the 'percentage liability' doctrine... if you are X% responsible for the damage (as in knowingly purchasing a property on the golf course), you only collect 100-X% of any award.


  5. #5
    I AM ALWAYS LIABLE is offline Senior Member
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    My response:

    Then, we agree insofar as your last post is concerned, when I said:

    "But, under certain circumstances, assumption of risk continues to be a complete defense in a negligence action."

    We, as contributors, never did get all of the facts concerning this matter. So, we're really shooting in the dark.

    Which came first, the Course or the house ? What does the Deed say ? And why, after so long, hasn't our writer mitigated his damages, or the potential for future damages? What's the position taken by his homeowner's insurance ?

    I absolutely enjoy our discussions, Steve. It's keeps us both both honed, and on our toes.

    IAAL
  6. #6
    dennis cornelsen Guest

    Talking golf ball damage to property

    Thank You
    I just wanted to say thank you for all the response I received for my questions on golf ball damage to my property. In answer to your questions..the golf course was there first and there is nothing in my deed that protects them from us having a home built near their course. So looks like my only action is to take them to court and see what happens..My home owners insurance will cover the damage less the 500.00 deductable but until they broke the 400.00 window, damage was around 475.00. I would have had to pay for all the damage. Again thanks for everyones time and effort on this subject..have a nice day...
  7. #7
    I AM ALWAYS LIABLE is offline Senior Member
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    My response:

    You're entirely welcome. I hope you've understood all this legal mumbo jumbo.

    See Steve . . . some people do appreciate our Siskel & Ebert routine. I give our writer a "Thumbs Up".

    IAAL

    P.S. You be Ebert.
  8. #8
    JETX is offline Senior Member
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    Hey, wait just a doggone minute.... you mean that we have presented several thousands of $$ of legal opinion and advice just to cover a measly $500.00????!!!!

    What a deal!!!

    <grin>

    I guess it will allow us to move two steps closer in the long line at St. Peter's Gate!! I can almost see it now... WAY off on the horizon!
  9. #9
    dman6666 Guest
    Since you have to anyway, Maybe consider replacing those windows with the more expensive hurricane/burgler proof ones available these days. (Various types, but, I'm thinking of the clear lexan/plexiglass stuff). Might save you some additional cost in the future...and you might even get the insurance company to cover some of the higher costs?


  10. #10
    I AM ALWAYS LIABLE is offline Senior Member
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    POSTED AT A GOLF CLUB:

    1. Back straight, knees bent, feet shoulder width apart.

    2. Form a loose grip.

    3. Keep your head down.

    4. Avoid a quick back swing.

    5. Stay out of the water.

    6. Try not to hit anyone.

    7. If you are taking too long, please let others go ahead of you.

    8. Don't stand directly in front of others.

    9. Quiet please...while others are preparing to go.

    10. Don't take extra strokes.

    Very good.

    Now flush the urinal, go outside and tee off!

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