dennis cornelsen said:
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]
