Regardless of who is ultimately found liable for damages related to the golf course and golfing, the Association would almost certainly be sued along with the golfer who hit the ball, the course manager and any other person or entity somehow related to the incident.
In light of this, the manager should check the Association=s insurance information to determine whether or not the Association=s liability insurance provides a defense and coverage in the event of either a personal injury and/or property damage claim resulting from a stray golf shot. If the current policy does not cover such claims, the insurer should provide the Association with a quote for the appropriate insurance protection and such insurance should be obtained. In addition, the Board might also request guidance from the insurer as to whether certain protective measures should be undertaken by the Association in those areas, if any, that are a potential problem.
Below, I discuss some of the sources of liability claims with respect to administering and maintaining an Association golf course. This is not and exhaustive list, like any other business, the sources of claims are myriad. For example, additional sources of claims could be environmental law (use of pesticides and fertilizer, failure to monitor and report on well usage), immigration law (use of illegal aliens as grounds personnel) and workers compensation law (injury to an Association employee).
The Association is required to exercise reasonable care in the administration and maintenance of the golf course. Whether a defendant exercised reasonable care is determined by the jury. However, a court could find that the homeowners and others assumed the reasonable risks associated with the operation of a golf course (i.e. stray golf shots). In the case of Sans v. Ramsey Golf and Country Club, Inc., 50 N.J. Super. 127 (App. Div. 1958) affirmed 29 N.J. 438 (1959) the plaintiff sued to stop use of a certain tee, the court noted that generally Apurchasers of home plots bordering the golf course must be held to have taken them subject to the ordinarily incidental discomforts of such proximity, such as the hazards of stray golf shots....
However, as described in the nuisance section below, if a member shows that an inordinate amount of golf balls were striking their house or falling into their yard, a court could conclude that this invasion of property is greater than an Aoccasional stray shot@, the situation constitutes a nuisance such that the Association must abate the nuisance at its own expense and, if the plaintiff shows that the Association was aware of the nuisance but did nothing, damages might be awarded.
With respect to an Association employee or agent (possibly even a caddy) who is struck or injured, the Worker=s Compensation Act may bar recovery on a personal injury claim. In the case of Harrison v. Montammy Golf Club 227 N.J. Super. 409 (1988), a caddy was struck in the face by a ball and sued the club and others, the golf club was granted summary judgment in its favor based on the Workers Compensation Act.
Stray shots are just one example of a basis for a claim arising out of administering and maintaining a golf course. Lightening strikes have resulted in suits against golf clubs. In Maussner v. Atlantic City Country Club, Inc. 299 N.J. Super 535 (App.Div.1997), a golfer who was struck by lightening on the course overcame an attempt to have the case dismissed on summary judgment. The Appellate division stated AAll golf courses have a duty to post a sign that details what, if any, safety procedures are being utilized by the golf course to protect its patrons from lightning. If a particular golf course uses no safety precautions, its sign must inform golfers that they play at their own risk and that no safety procedures are being utilized to protect golfers from lightning strikes. If, however, a golf course chooses to utilize a particular safety feature, it owes a duty of reasonable care to its patrons to utilize it correctly. This latter standard means, for example, that if a golf course builds shelters, it must build lightning proof shelters; if a golf course has an evacuation plan, the evacuation plan must be reasonable and must be posted; if a golf course uses a siren or horn system, the golfers must be able to hear it and must know what the signals mean; and if the golf course uses a weather forecasting system, it must use one that is reasonable under the circumstances. The Association, the developer and the course manager must determine what safety procedures with respect to lightening, if any, will be implemented.
Additionally, golf clubs have been subjected to suit for other hazards, in O'Connell v. Forest Hill Field Club, 119 N.J. Super. 317 (1972), the golf club was sued when a child trespassed on to the course and fell into a hole. Similar suits have been brought for sledding, ice skating and drowning accidents.
In the end, liability cannot be predicted. The cases turn on the particular facts and the Association will invariably be sued. The Association must act reasonably in administering and maintaining the course and must be certain that it is covered by insurance. If a claim is asserted against the Association for broken windows, dented cars, personal injury etc. the Association should immediately contact its attorney's office and insurance representative to evaluate the claim.
In the case of Sans v. Ramsey Golf and Country Club, Inc., cited above, the plaintiff sued to stop use of a certain tee, the court noted that generally Apurchasers of home plots bordering the golf course must be held to have taken them subject to the ordinarily incidental discomforts of such proximity, such as the hazards of stray golf shots.... The court qualified its opinion by stating that both the developer and owner of the residential community was Areasonably bound to lay out the golf course with fair regard to the minima of residential comfort and convenience for the occupants of the plots laid out along the borders of the course and sold for dwelling purposes as part of a common project.
Under Sans, a homeowner assumes the incidental risks when purchasing a home along the golf course. However, if the homeowner can demonstrate that the developer did not reasonably lay out the golf course so as to minimize the discomforts then, the developer and the Association (the corporation to whom the developer conveyed the golf course) may be subject to injunction (and possibly damages) (golf course design in this regard is necessarily an issue to be raised in transition). In Sans, the plaintiffs demonstrated that the developer failed to meet its obligation with respect to location of the third tee. The court in Sans held that the owner of the golf course was required to Arearrange its golf layout in respect of the third tee, (This would be a significant expense if the Association had to move a tee itself).
Each and every affected Association homeowner who purchases his or her home with the knowledge that it borders the golf course assumes certain risks associated with the location (i.e. stray golf balls). However, if there has been a historic problem with certain homes along certain portions of a golf course, then, as in Sans, the affected homeowners might make a case against the developer and the eventual owner (the Association). If there are certain known areas along the golf course that could prove or have proven to be dangerous, they must be addressed. However, responsibility/liability issues must be balanced by the intended reasonable use of the golf course. If there is a historical or obvious potential problem, it should be addressed.
Trespass claims have also been asserted against golf clubs for errant balls and/or golfers going onto lots to retrieve balls. To prevent trespass claims, the Association should consider amending its governing documents.
Grant of Easement:
Every Lot in the Association is hereby burdened with an easement allowing golf balls to come over and/or onto every Lot. All persons related to the golf course, including but not limited to, golfers, caddies and Association agents and employees shall have an easement to come on each Lot in the Association for the purpose of seeking and retrieving golf balls. The forgoing easement shall not relieve individual golfers using the golf course of any liability they may have for property damage.