Nussbaum v. Lacopo

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: BURKE; BERGAN; FULD, C. J., and SCILEPPI and JASEN, JJ., concur with BURKE; BERGAN
• Citation: Nussbaum v. Lacopo, 27 N.Y.2d 311, 317 N.Y.S.2d 347, 265 N.E.2d 762 (N.Y. 1970)
• Decision Date: 10 December 1970
• Parties: , 265 N.E.2d 762 Wilbur NUSSBAUM, Appellant, v. Paul LACOPO et al., Respondents.

Page 347

317 N.Y.S.2d 347

27 N.Y.2d 311, 265 N.E.2d 762

Wilbur NUSSBAUM, Appellant, v. Paul LACOPO et al., Respondents.

Court of Appeals of New York.

Dec. 10, 1970.

Benjamin H. Siff, New York City, for appellant.

William A. Scorzari and Martin J. Kushnick, Huntington, for Plandome Country Club, Inc., respondent.

Thomas F. Cohalan, New York City, for Paul Lacopo, respondent.

BURKE, Judge.

Plaintiff's home is situate on land abutting the thirteenth hole of the defendant country club. Between plaintiff's patio and the thirteenth fairway are approximately 20 to 30 feet of rough, and located in that golfer's no man's land is a natural barrier of 45- to 60-foot-high trees. Although plaintiff's real property line runs parallel to the thirteenth fairway, the direct and proper line of flight from the tee to the green was at a substantial angle to the right of the property line and the rough. It was thus, as any golfer would know, far to the right of the plaintiff's property line and patio, and it was not a 'dog leg'.

On June 30, 1963 defendant Lacopo, a trespasser on the golf course, struck a ball from the thirteenth tee. At that time the rough was dense and the trees were in full foliage. The shot, a high, bad one, 'hooked' and crossed over into the area of plaintiff's patio and there allegedly hit the plaintiff. Lacopo did not see plaintiff and did not short the traditional golfer's warning: 'Fore!'

This action was commenced against the golf club on theories of nuisance and negligence in design and against the player for failure to give a warning. We have examined the facts to determine whether a recovery may be based on any theory (Van Gaasbeck v. Webatuck Cent. School Dist. No. 1, 21 N.Y.2d 239, 245, 287 N.Y.S.2d 77, 81-82, 234 N.E.2d 243, 246-247) and hold that plaintiff failed to prove a case against either defendant.

THE COUNTRY CLUB

Although there is a significant similarity and interplay between negligence and nuisance, these causes of action should be treated separately so as to avoid confusion of issues.

In his examination before trial, defendant, admittedly a trespasser, stated that he had been ejected more than once, and plaintiff testified that other boys whom he saw were chased off the golf course. Thus, sufficient control over those who were permitted to play was exercised by the country club (Ramsden v. Shaker Ridge Country Club, 23 A.D.2d 857, 259 N.Y.S.2d 280, affd. 18 N.Y.2d 886, 276 N.Y.S.2d 625, 223 N.E.2d 35).

Ramsden is instructive, for, in that case, the country club gave permission to the youthful defendant player to use the course. A golf ball propelled by the young golfer caused injury to the plaintiff. The Appellate Division, dismissing the complaint, indicated that 'There [was] no evidence that the Club inadequately supervised its golf course or permitted immature and dangerous persons to play golf thereon' (Ramsden v. Shaker Ridger Country Club, 23 A.D.2d 857, 259 N.Y.S.2d 280, 282, supra). This court, holding that no liability was demonstrated against the club, affirmed.

Warren and other authorities state that the general principle is that the property owner is liable only for risks inherent in the performance of an actor permitted to use the land and not for 'collateral' or 'causal' negligence on the part of that actor. If it is an abnormal depature from ordinary action and unusual misconduct which caused the alleged harm, this is regarded as 'collateral'.

The design of the course was not such as to create a cause of action in nuisance or in negligence. 'To constitute a nuisance, the use must be such as to produce a tangible and appreciable injury to neighboring property, or such as to render its enjoyment especially uncomfortable or inconvenient.' (Campbell v. Seaman, 63 N.Y. 568, 577). But not every intrusion will constitute a nuisance. 'Persons living in organized communities must suffer some 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' (Campbell v. Seaman, 63 N.Y. 568, 577, supra). So, too, one who deliberately decides to reside in the suburbs on very desirable lots adjoining golf clubs and thus receive the social benefits and other not inconsiderable advantages of country club surroundings must accept the occasional, concomitant annoyances (Patton v. Westwood Country Club Co., 18 Ohio App.2d 137, 247 N.E.2d 761 [1969]).

Nuisance 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 (see Bohan v. Port Jervis Gas Right Co., 122 N.Y. 18, 25-26, 25 N.E. 246, 247-248). There were only, according to plaintiff and his wife, a few golf balls, which were found in the bushes and fence area of plaintiff's backyard. These minimal trespasses would not warrant the granting of an injunction and cannot sustain a recovery for plaintiff's injuries.

In addition, 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. In Patton v. Westwood Country Club Co. (18 Ohio App.2d 137, 247 N.E.2d 761, supra), the Ohio Court of Appeals held that an owner, who knew that property on which she built her home abutted a play area of an existing golf course, where, as here, the design and construction of the course and location of the tees, fairways and greens did not create an unreasonable risk of harm, was not entitled to an injunction restraining the country club from operating in such a manner as to permit members' golf balls to land on the home owner's property. Far different from the facts herein, golf balls had broken plaintiff's windows, struck one daughter and just missed another. Nevertheless, the court indicated there was in a sense an acceptance of risk and indifference to consequences.

Three reasons impel the conclusion that no liability may be imposed within the concepts of negligence: lack of notice; assumption of risk; and lack of foreseeability.

Plaintiff's wife testified that she called out to a neighbor, Richard Swiggert, and complained that golf balls came on the property. No effort was made to establish the relationship of Mr. Swiggert to those in authority at the club. The record does not support a conclusion that the occurrence was frequent. In fact, plaintiff's evidence, as shown above is consistent with occasional incursions only. Thus, there is no basis upon which to base a finding of even constructive notice.

That golf balls were found in the bushes and the fence area on plaintiff's property does not tend to establish any risk. These invasions are the annoyances which must be accepted by one who seeks to reside in the serenity and semi-isolation of such a pstoral setting. Thus, even if notice of these intrusions may be gleaned from the record, no preventive response was required. Remedial steps would be called for only if defendant had notice of a danger. Golf balls found in the areas adjacent to the rough--where, according to plaintiff's evidence, they were discovered--would not have come over the trees. It was that potential occurrence which might constitute a danger, and no notice of such an incident was given. In fact, plaintiff's wife testified that no golf ball ever struck her house. Certainly, if defendant's shot were not extraordinary and golf balls had travelled over the trees, plaintiff's house would have been hit.

On this record, however, the present accident is best described as unforeseeable. Plaintiff's property and the fairway were separated by 20 to 30 feet of dense rough, through which no ball could pass with any great force, and a stand of trees 45 to 60 feet high, over which only one ball, so far as the evidence herein shows, has passed. Under these circumstances the possibility of an accident could not be clear 'to the ordinarily prudent eye.'

The cases involving injuries to drivers of vehicles on highways and their passengers (Gleason v. Hillcrest Golf Course, 148 Misc. 246, 265 N.Y.S. 886; Castle v. St. Augustine's Links, [K.B., 1922] 38 Times L.Rep. 615; see also Townsley v. State of New York, 6 Misc.2d 557, 164 N.Y.S.2d 840), relied on by plaintiff, are inapposite. The facts in Gleason (supra), for example, while exemplifying the foreseeable accident, demonstrate that the highway cases do not provide useful comparisons. In that case the southerly edge of the golf course abutted the turnpike and was lined by a wire fence about 6 feet high, located 25 feet south of the roadway. The tee was so located that the player, with permission of the club, drove a ball in a westerly direction parallel to the highway. No such patently inadequate barrier is present herein, and the course is constructed so as to require players to direct the drives away from plaintiff's property. Therefore, we conclude, upon the proof in this case against the golf club, considered in the light most favorable to plaintiff, the accident was the result of cause for whose existence the club was not legally responsible.

THE PLAYER

Several reasons--any one of which is sufficient--support the decisions of the trial court and the Appellate Division that a prima facie case of negligence was not proven against the player: assumption of the risk; lack of foreseeability; lack of duty and failure to prove lack of due care.

Those reasons which should bar recovery against the golf club on grounds of assumption of risk and lack of foreseeability are equally applicable in considering the proof against the player. We will not repeat them.

Plaintiff, in his complaint, at the trial and on the subsequent appeals, argued that defendant failed to give a timely warning. That duty, which extends to other players (Johnston v. Blanchard, 301 N.Y. 599, 93 N.E.2d 494; Jenks v. McGranaghan, 32 A.D.2d 989, 299 N.Y.S.2d 228; ...