Townsley v. State

• Decision Date: 09 July 1957
• Citation: 6 Misc.2d 557,164 N.Y.S.2d 840
• Parties: Sylvia Farley TOWNSLEY, Claimant, v. The STATE of New York.
• Court: New York Court of Claims

Page 840

164 N.Y.S.2d 840

6 Misc.2d 557

Sylvia Farley TOWNSLEY, Claimant, v. The STATE of New York.

Court of Claims of New York.

July 9, 1957.

Richard C. Mitchell, Oswego, for claimant.

Jacob K. Javits, Atty. Gen., and Frank M. Noonan, Asst. Atty. Gen., of counsel, for the State of New York.

YOUNG, Judge.

On the second day of July, 1954, claimant, while operating a motor vehicle, was struck on the left wrist by a golf ball as she signaled, with her left arm extended from her automobile window, to make a right turn New York State Highway, Route 48, upon which the claimant was driving, is a highly traveled highway between Oswego and Fulton, New York, and on the east side of this highway the State has owned and maintained the Battle Island Golf Course for a period of over twenty-five years prior to the occurrence of this accident. It is the contention of the claimant that the eighteenth hole, with its fairway running parallel and immediately adjacent to the highway, constituted a menace and public nuisance to travelers using the highway. With this the Court agrees.

The right of the public to free and unmolested use of the highway is well defined. Tinker v. New York, Ontario & Western R. Co., 157 N.Y. 312, 51 N.E. 1031; Flynn v. Taylor, 127 N.Y. 596, 28 N.E. 418, 14 L.R.A. 556; Callanan v. Gilman, 107 N.Y. 360, 14 N.E. 264.

In Gleason v. Hillcrest Golf Course, Inc., 148 Misc. 246, 265 N.Y.S. 886, 890, the learned Judge Pette said:

'This plaintiff had a right to be traveling in the automobile upon the highway. The ball hit the windshield suddenly. She could not be expected to watch out for deflected golf balls in the path of the car, and, even if she were, there is nothing to indicate that she could have reasonably done anything to avert the accident. For aught that appears, she did not know that the golf course was there, or that a golf game was in progress at the time. The roadway itself was safe, the car was being carefully driven, and the conditions were such that no one on the highway, certainly not a person sitting in a passing car, could be reasonably required to anticipate that a ball might fly against the car any moment. Plaintiff was in substance and effect in the same position as any other traveler or pedestrian who, without warning, is struck by an object falling from a structure.'

The game of golf, itself, is not inherently dangerous. In the case at bar, however, the evidence established that the State had notice of golf balls...