Out Of Bounds: Mitigating The Risks Of Errant Golf Balls

• Published date: 29 August 2023
• Subject Matter: Insurance, Real Estate and Construction, Insurance Laws and Products, Real Estate, Landlord & Tenant - Leases
• Law Firm: Alexander Holburn Beaudin + Lang LLP
• Author: Manjote Jhaj

The issue of errant golf balls has always been a concern for golf course owners and operators. The law has made it clear that golf course owners and operators have a duty to protect their neighbours from errant golf balls and to be aware of the potential damage. Taking proactive steps to mitigate the risk of damage caused by errant golf balls can help prevent lengthy and costly disputes down the road.

LIMIT YOUR LIABILITY

Canadian law is well established that golf course owners have a duty to reasonably maintain their property as to not unreasonably permit errant golf balls to enter neighbouring properties. If errant balls do escape, a court will consider if the neighbouring property has an actionable claim against the golf course in nuisance. In cases where golf course owners are found liable, they may be held accountable for the resulting damage under the tort of nuisance.

THE LAW OF NUISANCE

In its most basic form, the tort of nuisance is unreasonable interference with the enjoyment of one's land. Where a nuisance is proven, the courts will help prevent unlawful conduct and award damages. A claim for nuisance contemplates more than a mere annoyance.

Linden, in Canadian Tort Law, 12th Edition, chapter 11 at page 569, defines nuisance as follows:

"Private nuisance may be defined as an unreasonable interference with the use and enjoyment of property. This may come about by physical damage to the land. The use of the term "unreasonable" indicates that the interference must be such as would not be tolerated by the ordinary occupier".

In most instances, for a nuisance claim involving errant golf balls to succeed, a court will consider the characteristics of the neighbourhood, as well as the frequency and duration of the occurrence. Courts have found that a nuisance exists where it substantially interferes with one's use or enjoyment of land and considering all of the surrounding circumstances the interference is unreasonable.

CASE LAW

Below is a summary of some cases that involve errant golf balls.

Segal v. Derrick Golf & Winter Club, 1977 CanLII 656 (AB QB) involved a case where, in 1972, over 200 balls had landed in the plaintiff's property. The court found that the balls were a nuisance. The unpredictable nature of the sporadic interferences was considered a relevant factor, in addition to children not being able to play in the backyard. The golf club was found liable in nuisance and the plaintiff was awarded $3,000 in damages.

In Skobleniuk v. Eaglestar...