The Essex CC Lawsuit

[David Wigler]

Hi all,

I am hoping for some help.  It looks like the piece of property next to our driving range may be sold.  Our course predates any development on that property by over 80 years.  I think I remember someone buying property next to Salem and then suing them to make them change a hole because his house was hit with balls.  Does anyone know how the case turned out?  Did the judicial system decide that it was buyer beware, since the club was there first or did it set a precedent of who cares what was there first, clubs are not sympathetic defendants?  Were any other cases cited?  Thanks in advance from a BOD member on a BOD without any Lawyers.

[Craig Van Egmond]

I think Brad Klien wrote something on this once upon a time.  I heard that the guy who sued actually won and that they had to change the hole.

[David Wigler]

Craig,

I remember Brad's article.  I think that is how I knew about it.

I am hoping someone knows if there were appeals, if the case reached final conclusion and if there was a precedent set?

[Brian Phillips]

David,

The precedent in the UK is the same in that if a house or builiding is built and is hit by golf balls then the golf hole must be changed even if the course pre dates the buliding by a many years.

That is one of my big discussions with new course developers when I refuse to put a centreline nearer than the recommended distance (EIGCA) even though there is no development there at the time.  

Even when it looks like there will almost certainly be no development I will still argue the case to not do it.  I get asked all the time about it and I am sure the American architects here do as well.

Brian Phillips.

[Michael Moore]

Mr. Wigler -

The course in question is the Essex County Club, a bit further north.

I would recommend a title change to invite more replies.

[David Wigler]

Michael,

Thanks and suggestion taken.

Brian,

Does the European standard apply just to holes or to driving ranges as well, where it is obvious people willbe hitting at your development?

[Brian Phillips]

Any golf development that intrudes on another person's property by landing golf balls in their garden or window etc would in my opinion have to be redesigned.

Even when we design golf ranges there are certain distances that we try to adhere to.  The EIGCA have a number of architects that are listed as expert witnesses on this subject for exactly the type of lawsuit you are talking about.

Brian

[ANTHONYPIOPPI]

David,

This is not good news for your course. The worst part about the Essex County situation was not that the house had been there for decades, but that it actually sits on the other side of a small road from the golf course - the same road that leads to the house Donald Ross lived in while on site.

I'd get a lawyer involved right away on this.

The good news may be that the insurance company of the new owners will have a say about where a house is built on the property.

You may want to contact the National Golf Foundation and the Golf Course Superintendents Association of America for guidance.

If I can be of any help, please let me know.

Anthony
Apioppi@earthlink.net

[Steve_ Shaffer]

David

It may help your club to have a lawyer on the Board.
A different type of situation faced my club and I wrote an opinion letter concerning the possible relocation of a particular green due to liability issues. If I remember correctly, Hurdzan has been an expert witness in many golf liability cases.

A search of golfweek.com revealed this article:


Essex CC settles suit,
will move 14th hole
BY BRADLEY S. KLEIN, SUPERINTENDENT NEWS EDITOR

Essex County Club in Manchester-by-the-Sea, Mass., reached an out-of-court agreement Sept. 7 with a plaintiff claiming danger emanating from the par-3 14th hole. The club will replace it with a new hole to the right, away from the property line.

Randy George, who lives across the street from the 14th green, had filed suit May 18, 2000, in Essex County Superior Court claiming nuisance, trespass, and “negligent infliction of emotional stress” from wayward tee shots that were pelting his house and family (Golfweek, Aug. 25). The club faced a Sept. 10 court date for a civil trial in the matter, which now has been resolved.

According to terms of the agreement, Essex County Club will abandon the 187-yard par-3, designed by Donald Ross in 1910-1916. The new design work will be undertaken by course architects Tom Doak and Bruce Hepner of Renaissance Golf Inc. The firm has dozens of highly regarded classical course restoration projects to its credentials.

The new hole will play slightly shorter than the hole it replaces and will sit on an axis 25 yards to the right. The new putting surface will emulate its predecessor, but differences in terrain will alter it slightly.

Tree clearing work has begun, and construction is scheduled to begin soon. The new hole will be open for full play in spring 2002. Meanwhile, play at the old 14th hole will continue under the terms of an April 2001 court order that limits golfers to the forward tees and only under the observation of a monitor who records shots crossing the property line.

[Patrick_Mucci]

David Wigler,

Some clubs resort to erecting netting on tall poles on the property line to prevent errant balls from hitting property or people.

The legal climate has changed over the years.

These days, community relations are more important then ever.

P.S.  I"m sure the club has lawyers.

[SB]

The comments listed differ from my understanding of the law.  My understanding is that the COURSE is not liable if it was there first.  I thought the Essex case had some unique qualities that resulted in the current ruling.   Every development course in america would be liable for sliced shots into a house if that were case, and it is actually the golfer that is liable.  

[Jfaspen]

At least with a course I am familiar with back home, the rule of buyer beware applies.
The course existed and then condos were built around it.  Because the course was there first, not only can they not sue for changes to the course, but cannot sue for property damages.  The persons who live within range of the course have been told to get it covered by their homeowners insurance.



not a lawyer so dont take it as legal advice, etc.  I think there is caselaw out there too regarding assumption of risk, notice, etc.

[JakaB]

Sounds to me like the people on the driving range pelt balls onto this property all the time....I'd say the club should be happy they got free use of the land for 80 years and get over it.....It reminds me of the National members complaining about the views of the Sebonack clubhouse....if you are concerned about the use of vacant land next to your property....pay up don't pray up...

[cary lichtenstein]

Solution is simple, buy the house, divide the cost among the members and assess them

[rgkeller]

Solution is simple, buy the house, divide the cost among the members and assess them

I love an elegant solution.

[Lou_Duran]

To follow-up on Pat Mucci's suggestion, check on the deed restrictions and community development standards to determine the type and heighth of fencing permitted.  If a high, net type barrier is allowed, your GM may wish to discuss this option with the property owner.  There may be some negotiating room, including perhaps placing a deed restriction on the property addressing the issue of errant balls, or sharing costs on a solution which may be more palatable to all parties.  Personally, I would never buy a house on a golf course to live-in, but many people who live in the direct line of fire don't even play golf.  Those 60'+ nets are real eyesores, specially on one's backyard.

[TEPaul]

I have the whole legal history of that Essex situation. I got it from the NCA (National Club Associaiton). I think it's up in the attic and I ain't going up there to look for it either. Sorry about that!  

[Brad Tufts]

At Essex, another problem was having to blast an entire rocky hillside away to make a playing corridor for the new hole.  The guy who lived across the street did get his way, and much of his impetus was due to the fact that I believe someone in his family got hit while outside the house.  Many members thought the whole thing was ludicrous, as the hole rarely played 187, as it was more often set up (even the back tees) from about 140-150.  Personally, I played the course when I was about 12, and couldn't break 120, and that house never entered my mind that it was even there.  The new hole is quite nice, though is not really a close imitation of the old green (which is still there in taller grass).  Club members have told me they have gotten their last laugh, as they chuckle every time they tell the story of how the man who started the lawsuit is now in jail for tax evasion!  I don't know how true that is, but its an interesting end to the story.

-Brad

[David Wigler]

I have the whole legal history of that Essex situation. I got it from the NCA (National Club Associaiton). I think it's up in the attic and I ain't going up there to look for it either. Sorry about that!  

Tom,

You wouldn't happen to know who you called at the NCA, would you?

[TEPaul]

DavidW:

I spoke to the lady who runs the NCA but her name is in my attic too. Just call the NCA (National Club Association) in D.C. They'll probably ask you if your club is a member and if it isn't just tell them if they answer your question you'll try to get them to join!  

[blasbe1]

Did the judicial system decide that it was buyer beware, since the club was there first or did it set a precedent of who cares what was there first, clubs are not sympathetic defendants?  Were any other cases cited?  Thanks in advance from a BOD member on a BOD without any Lawyers.

I will preface this post by saying that I'm an attorney that has had a bad day, week, month and unfortunately, year.   But I didn't think this subject was anything close to what this Board is about.  IMO, any club that wants lawyers on its board is a bit SOOL.

[blasbe1]

BTW,

That's "S"hit "O"ut "O"f 'L"uck for all those Michigan fans out there.

Jason  

[mike_beene]

Look at Malouf v Dallas Athletic Club for a good discussion on the issues.I have a copy at my office I could send you.Send me a personal note with your fax.

[mike_beene]

I mean your fax number.That didnt sound right.

[Brad Klein]

David, if you think that the courts or the law uphold a pre-exiting condition and that someone who moves into such a  situation is "buyer beware," forget it. Especially because these are matters for the civil courts, and since 90 percent of Americans don't play golf, lawyers know they'll face a jury with 10-11 non-golfers, who tend not to look kindly on private clubs or golf clubs.

At Essex, the course pre-dated the house, which was built in 1920's, and when the fellow bought the house (in 1997 or 1998) from the previous owner, who I think had been a member of the club, the condition had not been revealed. In any case, about 300 balls a season were landing on his yard, and even when they moved the tee up to 145 yards, court-appointed monitors at the tee noted many golf balls that landed there. The fact that the club had to blast a site for the hole and moved it about 25-yards to the right (Doak did it) is not a concern for the courts or the owner, but the club.

It woud have helped had Essex County Club addressed the problem more quickly rather than ducking its head in the sand. As I recall, the home owner made a common practice of suing many parties in many matters in several states. Incidentally, it's my understanding that he was ultimately convicted of tax fraud and sent to jail - though I hope if my recollection is incorrect he allows me to correct the statement before he sues me.

One other point. The whole claim of "prior existing condition" is pretty easy to poke holes into. Any half-witted lawyer can make a convincing case that over the years, facility utilization has increased, golf balls are going farther, and the extent of any danger has generally increased. That's another reason that architects generally now rely upon hole corridor widths of 300-feet from center line to center line, whereas they would use 225-250 feet just a few decades ago.  

[Tags:]

Tags: