January 1, 1900

by Andrew T. McDonald

What's a "Happy Hooker" you might ask? Well among other references, it is a "Sunday" golfer that has a tendency to hit his golf ball into areas of the golf course that are even foreign to the greens keeper. This "so-called tendency" places adjacent property homeowners and bystanders in harms way (i.e. being struck by a projectile). While the judiciary in New Jersey has addressed such issues as the duty of golf courses to protect patrons from the danger of lightning and abutting landowners from unnecessary trespass, liability stemming from errant golf shots, including damage or nuisance therefrom, is an issue of relatively new impression.

The Judiciary in other states has addressed the liability issues caused by the "Happy Hooker". The New York Court of Appeals found neither a country club nor golfer liable to an adjeacent property owner who was struck and injured by an errant golf shot. Specifically the Court in Nausbaum v. Lacopo opined that persons living in organized communities must suffer from damage, annoyance and inconvenience from each other. If one lives in the city he must expect to suffer the dirt, smoke, noisome odors and confusion incident to city life. So, too, one who deliberately decides to reside in the suburbs on very desirable lots adjoining golf clubs and thus receives the social benefits and other not inconsiderable advantages of country club surroundings must accept the occasional, concomitant annoyances.

In Ohio, a lawsuit was brought where golf balls had broken a neighbor’s windows, struck one daughter and just missed another. In response, the Court in Patton v.Westwood Country Club found that one who chooses to reside on property abutting a golf course is not entitled to the same protection as the traveler on the public highway. An owner who chooses to reside in an area that abuts an existing golf course, where the design and construction of the course and location of the tees, fairways and greens does not create an unreasonable risk of harm, was not entitled to an injunction restraining the golf course from operating in such a manner as to permit members’ golf balls to land on the homeowner’s property.

These two opinions are rooted in three very basic tort/negligence principles. The principles include notice, foreseeability and assumption of risk. Assumption of risk can be compared to "coming to the nuisance" in a "property sense." The doctrine of assumption of risk is an affirmative defense that may be invoked to escape or diminish liability for having created unreasonable risk of injury if one can prove that the injured party knew of the danger, appreciated its unreasonable character and then voluntarily exposed himself to it.

In the recent Middlesex County Special Civil action entitled Anklowitz v. Greenbriar Golf Association, the Court refused to impose liability on a golf association for errant golf shots. Plaintiff’s Complaint alleged that the golf course association refused to remedy a dangerous condition which interfered with the quiet, peaceable use and enjoyment of property. Further Mr. Anklowitz complained that errant golf balls frequently hit his deck, backyard, house and nearly missed individuals. He asked the association to install trees or reimburse him for the cost of installing trees to provide safety and protection.

The case proceeded to trial before the Honorable Frank M. Ciuffani, J.S.C. After both parties rested, the Court considered the Plaintiff ’s Complaint, the evidence before it and the motion for summary disposition filed by Hill Wallack on behalf of the Association. On what was described as an issue of first impression for the Court in the State of New Jersey- liability of a golf association for errant golf shots-Judge Ciuffani dismissed the Plaintiff ’s Complaint in its entirety and rendered a judicial opinion in favor of the Association.

Andrew T. McDonald is an associate in the General Litigation and Community Association Law Practice Groups.