Hennessey v. Pyne

• Decision Date: 13 May 1997
• Docket Number: No. 95-687-A,95-687-A
• Citation: 694 A.2d 691
• Parties: Eileen HENNESSEY et al. v. Michael G. PYNE et al. ppeal.
• Court: Rhode Island Supreme Court

Page 691

694 A.2d 691

Eileen HENNESSEY et al. v. Michael G. PYNE et al.

No. 95-687-Appeal.

Supreme Court of Rhode Island.

May 13, 1997.

Edward L. Gnys, Jr., Christopher M. Rawson, Providence, for Plaintiff.

Mark W. Dana, Daniel McKiernan, James S. D'Ambra, Providence, for Defendant.

Present: WEISBERGER, C.J., and LEDERBERG, BOURCIER, and FLANDERS, JJ.

OPINION

FLANDERS, Justice.

When hitting a golf ball, does a golfer owe any duty to persons living in residences immediately adjacent to the golf course? If so, is that duty breached when the golfer unintentionally hits a ball that veers off the course, strikes a resident on her own property, and injures her? This appeal from a summary judgment requires us to tee off on these questions for the first time in Rhode Island. ¹

Ever since Mark Twain quipped that golf was nothing more than "a good walk spoiled," ² the game of golf has continued to excite flamboyant commentary concerning those who ply its greensward. The famed American curmudgeon, H.L. Mencken, once chipped in that if he had his way, "no man guilty of golf would be eligible to any office of trust or profit under the United States." ³ A different but equally difficult lie has been played by humorist A.P. Herbert, who took this shot: "the game of golf may well be included in that category of intolerable provocations which may legally excuse or mitigate behavior not otherwise excusable." ⁴

In assaying the governing standards applicable to this dispute, we shall try to drive a middle course down a legal fairway strewn with hazards, bunkers, and other assorted obstacles--especially to those who venture off aimlessly into the rough. Although we acknowledge that "a golfer ordinarily may not be held liable to individuals located entirely outside of the boundaries of the golf course who happen to be hit by a stray, mishit ball," Rinaldo v. McGovern, 78 N.Y.2d 729, 579 N.Y.S.2d 626, 628, 587 N.E.2d 264, 266 (1991), our de novo review ⁵ of the record reveals material factual questions that prevent the negligence claims in this case from being par for a summary-judgment course. Thus, we conclude that the Superior Court should not have entered judgment in favor of defendant golfer, Michael G. Pyne (Pyne), on the negligence claims of plaintiff, Eileen Hennessey (Hennessey). However, we affirm the summary judgment entered with respect to Hennessey's assault, battery, and nuisance claims.

Facts ⁶

In 1990 Hennessey lived in a condominium right next to the Louisquisset Golf Club, a North Providence golf course. According to Hennessey, "[a]s soon as they started golfing the first time," her condominium was hit by golf balls. Her home nestled in the crook of a dogleg golf hole that swerved slightly to the left from the tee on the eleventh hole. So close was Hennessey's property to the course that her back yard began approximately fourteen feet from the edge of the out-of-bounds marker about half-way down the fairway. ⁷

After returning home from church one Sunday morning in mid-September, Hennessey paused to dally over some flowers in her front-yard garden. Her Sunday morning reverie amidst the summer flora, however, was rudely interrupted when Pyne's eleventh-hole-tee shot "veered slightly left" and without warning careened into the side of her head, thereby injuring her.

Pyne, the golf course's assistant pro, was well aware not only of the condominiums' presence but also of the propensity for the club's golfers to strafe them with misfired golf shots. ⁸ As for the extent and frequency of this enfilade, Hennessey testified at her deposition that for approximately five years, during the heaviest part of the playing season, her condominium was hit "about 10 times a day[; s]ometimes twice by the same person, especially if they were rounding 18 holes." She also answered interrogatories by noting that she had to install Plexiglas in various windows of her home because of the frequency with which golf balls had pelted the exterior and broken the glass. Moreover, Pyne was also aware of Hennessey's apparently vocal presence at or near the course, characterizing her as "a chronic nuisance to golfers here at Louisquisset." Although Hennessey testified at her deposition that she did not see Pyne's ball coming because trees hid the eleventh-hole tee from her front-yard vista, it is unclear from the record whether on this particular morning Pyne actually saw, or could have seen, Hennessey from where he addressed the ball on the tee. Finally, there is nothing in the record to indicate whether Pyne shouted "fore" or attempted to give any warning either before or after he saw his tee shot heading off the course and toward Hennessey's condominium.

To obtain redress for her injuries, Hennessey filed a civil action in Superior Court against Pyne, the Louisquisset Country Club Condominium Association (association), and its executive board (board). ⁹ She alleged that Pyne was "guilty of nuisance and negligent and reckless misconduct" as well as "assault and battery." Pyne answered by admitting that although he struck the golf ball, he had no knowledge about whether it hit Hennessey. In his report to the association and its board, he states that "[i]t is apparent to me that the ball struck the side of the [condominium] unit" and that it was "questionable--if not impossible" that the ball hit anyone in the front yard. He also affirmatively alleged that Hennessey had assumed the risk of injury. After the parties engaged in some discovery, Pyne filed a motion for summary judgment on the grounds that "[t]here is no evidence establishing any negligence on [his] part." ¹⁰

A Superior Court motion justice concluded that as a golfer engaging in a lawful and intended use of a golf course, Pyne owed no duty to Hennessey and that therefore summary judgment should enter against her on her negligence cause of action. ¹¹ The motion justice therefore granted Pyne summary judgment "relative to all counts that were brought" against him, and Hennessey appealed. ¹² For the reasons set forth below, we affirm the judgment as it relates to the nuisance and assault and battery claims but reverse as it relates to the negligence claim.

Analysis

I Nuisance

Hennessey argues that a valid claim for nuisance exists against Pyne because he caused his golf ball to invade her protected-property interest in the private use and enjoyment of her land. However, "[u]nder Rhode Island law it is well settled that a cause of action for a private nuisance [that is, a conflict between neighboring contemporaneous land uses] 'arises from the unreasonable use of one's property that materially interferes with a neighbor's physical comfort or * * * use of * * * real estate.' " Hydro-Manufacturing, Inc. v. Kayser-Roth Corp., 640 A.2d 950, 957 (R.I.1994) (quoting Weida v. Ferry, 493 A.2d 824, 826 (R.I.1985)). (First emphasis added.) Here, Pyne's use of the golf course was not unreasonable per se. Rather, while engaged in a lawful use of the golf course's property, ¹³ he hit a single golf ball toward Hennessey's condominium. Such an isolated incident is not the type of conduct that nuisance law is intended to remedy. See Citizens for Preservation of Waterman Lake v. Davis, 420 A.2d 53, 59 (R.I.1980) ("[t]he law does not attempt to impose liability in every case in which one person's conduct has some detrimental effect on another[; l]iability is imposed only in those cases in which the harm or risk to one is greater than * * * ought to be required * * * under the circumstances"). Compare Nussbaum v. Lacopo, 27 N.Y.2d 311, 317 N.Y.S.2d 347, 265 N.E.2d 762, 765 (1970) ("[n]uisance imports a continuous invasion of rights, and the occasional--'once or twice a week'--errant golf ball that was found on plaintiff's property does not constitute sufficient impairment of plaintiff's rights") with Bechhold v. Mariner Properties, Inc., 576 So.2d 921, 922 (Fla.Dist.Ct.App.1991) (reversing summary judgment in favor of golf course owner in a private nuisance action where homeowners submitted affidavit to effect that approximately 1,000 balls per year enter their backyards). Moreover, he and Hennessey were not neighbors in the usual sense of the word. Thus whatever Hennessey's prospects may be in pursuing a nuisance claim against the golf course and the other defendants, she has no such claim against Pyne on these facts.

II Assault and Battery

Hennessey also asserted a claim of assault and battery against Pyne. In her briefs submitted to this court, however, she claimed error only in regard to the battery count. We thus consider any claim of error about the entry of summary judgment on the assault claim as waived. Sup.Ct. R. 16(a). However, even were it not so, her assault appeal would have been unavailing.

As we recently confirmed, "Assault and battery are separate acts, usually arising from the same transaction, each having independent significance." Picard v. Barry Pontiac-Buick, Inc., 654 A.2d 690, 694 (R.I.1995) (citing Proffitt v. Ricci, 463 A.2d 514, 517 (R.I.1983)). " 'An assault is a physical act of a threatening nature or an offer of corporal injury which puts an individual in reasonable fear of imminent bodily harm.' " Id. "It is a plaintiff's apprehension of injury [which apprehension must be of the type normally aroused in the mind of a reasonable person] which renders a defendant's act compensable." Id. Here Hennessey was not even aware of Pyne's presence on the tee, much less did she apprehend any injury from the errant golf ball that struck her. Thus, a claim for assault will not lie in these circumstances.

Battery, on the other hand, is

"an act that was intended to cause, and in fact did cause, 'an offensive contact with or unconsented touching of or trauma upon the body of another, thereby generally resulting in the consummation of the assault. * * * An intent to injure plaintiff, however, is unnecessary in a situation in which a defendant willfully sets in motion a...