Owning a property bordering a golf course comes with the risk that a mishit golf ball might land thereon or, worse, strike a homeowner's house, other object or person and cause damages. Although golf courses are designed to minimize the chances of a mishit ball venturing too far off course, golfers of varying skill may be unable to properly control the direction and flight of their ball such that it lands on a neighbouring property. Newer golf courses built within a residential community may not discover that their design adequately minimizes the risks of mishit balls travelling onto adjacent properties until the holes are played and feedback is received from adjacent owners about the frequency of balls landing on neighbouring properties. Where mishit shots cause damages to a neighbouring property an issue arises in regard to whether a golf course ought to be liable for the damages caused or whether the adjacent property owner must assume the risk of living beside a golf course.
In Fletcher v. The Links at Burnello, 2023 NSSM 14, the Court held the defendant golf course liable for damages caused by errant golf balls that escaped from the golf course and struck the neighbouring property owners' house and truck.
The adjacent owners had bought their property in 2007. At the time, the golf course did not exist.
10 years later, the wooded property behind their home was developed and the defendant golf course was opened. The golf course was designed to be a championship-level course and after opening attracted golfers of various skills.
Immediately after opening, the owners found golf balls in their backyard. The owners notified the golf course about the errant shots. Other adjacent property owners also notified the golf course about errant golf balls landing on their properties.
In 2019 and 2020, two errant shots from the fourth hole of the golf course caused damage to the owners' house and truck, respectively. One of the shots struck the back wall of the owners' house and cracked the siding. The other shot flew over the owners' house and left a sizeable dent in their truck.
Eventually, the fourth hole of the golf course was changed to reduce the chances of errant shots travelling onto the owners' property.
The golf course contended that it should not be held liable for the damages caused to the owners' house and truck because it had designed and redesigned the course based on professional standards and that the owners had not proven their case in negligence and nuisance.
After reviewing various cases involving actions between adjacent property owners and golf courses, many of which also considered the granting of injunctive relief against golf courses to either prevent their operation or to mandatorily force course design changes, the Court focused on the simple question of whether the golf course was responsible for the damages suffered by the neighbouring owners as a matter of private nuisance.
A private nuisance is an unreasonable interference with the use and enjoyment of land. The unreasonable interference can be in the form of physical damage or, as stated in Canadian Tort Law, 7th edition, "injury to the health, comfort or convenience of the occupier".
In finding that the golf course was liable for the owners' damages, the Court analogized their case to a British Columbia shooting range case, Milne v. Saltspring Island Rod and Gun Club, 2014 BCSC 1088 (CanLII), where the shooting range was held liable for nuisance for the escape of any number of bullets from the range, and cited the following passage from Remedies in Tort, by Lewis Klar:
...Where material damage to the plaintiff's premises or property occurs as a result of the activities of the defendant, the plaintiff is entitled to redress, irrespective of locality. However, where personal discomfort is at issue, the character of the locality is of importance in determining the standard of comfort that an occupier may reasonably claim, as individuals living in society must be prepared to submit to that amount of discomfort as is necessary for the legitimate and free exercise of the trade of their neighbours. The standard against which the plaintiff's discomfort is measured is that expected by the ordinary reasonable and responsible person in the particular area. Accordingly, to establish a nuisance, the plaintiff may be required to show that he has suffered sensible discomfort and inconvenience which exceeds the standard given the nature of the locality.
In the Court's view, unless there was an agreement establishing an assumption of risk, which did not exist in this case, a homeowner living adjacent to a golf course had the right to be compensated for damages caused by golf balls escaping from the course. The Court further stated that the golf course had a duty to neighbours in regard to escaping golf balls and that the risk of damage from an errant shot was foreseeable. From a public policy perspective, holding the golf course liable for the damages was part of the cost of doing business.
The Court also noted that although not argued, the rule in Rylands v. Fletcher (1868), L.R. 3 H.L. 330 might apply to a case of escaping golf balls from a golf course and thus impose absolute liability on a golf course. This rule states:
If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage.
In the result, the owners were awarded $1,544 in damages for the costs to repair the siding and the truck. The damages awarded for the siding was based on the time the owners would have to learn how to fix the crack and repair it themselves. This was the most efficient and cost-effective solution in light of the fact that the crack was so small that the owners could not find a contractor to provide a quote on the repair job or fix the damage.
For golf courses and homeowners who live adjacent to a golf course, this case demonstrates that mishits balls that cause property damage will likely result in the golf course being held liable for the costs of repair. In a broader sense, this case demonstrates that the operators of sport facilities that border neighbouring properties should carefully ensure that their facilities are designed in such a manner to limit the risks of escaping objects that might cause damage to a neighbour.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
