1. Helping to create windows of opportunity

2. Neighbours and Golf Ball Intrusions National Golf Course Owners Association Conference August 28, 2006 Presented by Hillary Stephenson

3. Problem Private properties bordering golf courses Errant golf balls Risk of property damage Risk of personal injury

4. Issues What is the liability of the golf course? What legal sanctions could the golf course face? What are the steps that can be taken to avoid or reduce liability?

5. Golf Course Liability If a golf ball from a golf course ends up on the property of a neighbour, the golf course may be liable in either, or both of: Nuisance Negligence

6. What is Nuisance? UNREASONABLE interference with the use and enjoyment of property Physical damage to the land Interference with the exercise of a property right, such a right-of-way Injury to the health, comfort or convenience of the occupier of the property »Carley v. Willow Park Golf Course Ltd.

7. Definition of “unreasonable” “Interference must be such as would not be tolerated by the ordinary occupier” Carley v. Willow Park Golf Course Ltd. “No use of land is reasonable if it produces substantial discomfort to others, or materially damages their property”

8. Primary Consideration Frequency of golf ball intrusions > 200 balls/yearNUISANCE Carley, Segal, Douglas Lake, Sammut, Skobleniuk  < 10-20 balls/year  NUISANCE Lakeview Gardens

9. …other considerations Competing interests: “…the court balances the gravity of the harm caused [to the plaintiff] against the utility of the defendant’s conduct…a tolerable balance must be struck between competing interests of landowners…” »Lakeview Gardens Ltd. V. Regina

10. …other considerations Type and severity of the interference “barrage” of “hard-driven” golf balls The duration of the interference Sporadic or daily The character of the neighbourhood Standard of tolerance of the community The sensitivity of the plaintiff Informs whether the interference is reasonable The conduct of the defendant »Linden, Canadian Tort Law

11. Negligence: Definition Failure to take reasonable care in preventing injury to another

12. Negligence and Errant Golf Balls Is there a reasonable possibility of a golf ball being hit into the neighbours’ property? Is there a reasonable possibility of injury and damage?

13. Negligence and Errant Golf Balls If so, a duty is owed to the neighbour to take steps to eliminate the problem

14. …. If the problem is not eliminated, the golf course will be liable

15. What are the consequences? Damages Awarded for past inconvenience and discomfort Courts consider mitigation Injunction Order of the court requiring specific actions which may effectively shut down operations Douglas Lake Cattle Company v. Mount Paul Golf Course In exceptional circumstances, damages may be awarded in lieu of an injunction Not available in Provincial Court

16. Nuisance Damages If a nuisance is established, the next issue to address is whether, and to what extent, general damages are an appropriate remedy Court considers the following factors: Frequency/intensity of the nuisance Amount of exposure to nuisance Degree to which nuisance interferes with activities Psychological and physical characteristics of the plaintiff Conduct of the defendant Douglas Lake Cattle Co. v. Mount Paul Golf Course Inc.

17. Damages in Nuisance Cases “barrage” in Carley v. Willow Park ($2,500) “bombarded” in Segal v. Derrick Golf ($3,000) 2,577 in Douglas Lake v. Mount Paul (none) “pummeled” in Sammut v. Islington Golf ($5,000) > 200, Skobleniuk v. Eaglestar ($4,000)

18. Examples of Damages Awarded in Negligence Lakeview Gardens Ltd. v. Regina (City) [2004] (SK): $73.45 Sammut v. Islington Golf Club [2005] (ON): $9,000 in negligence Cattell v. Bosenberg [2006] (SK): $18,000 and $6,000 Transcona Country Club Ltd. v. Transcona Golf Club (1982) Inc. [2002] (MB): $909 (in nuisance and negligence)

19. Mitigation Mitigation not necessarily a defence Mitigation may reduce damages

20. Mitigation Examples by Golf Courses Moving tee boxes and greens Erecting fences Planting protective trees Monitors

21. Mitigation Examples by Driving Ranges Fences Golf club restrictions Re-orienting tee-off mats Reducing tee height Limited-flight balls Monitoring

22. Other Options Effective communication, mediated abatement Covenants or easements in purchase agreements where the purchaser acknowledges and accepts the risk Redesign Closure

23. Conclusion Golf courses may be liable in nuisance and negligence for errant golf balls Sanctions can include damages and injunctions Mitigation is not a defence, but may impact on the amount of the damages awarded

24. Hillary Stephenson, LL.B Alexander Holburn Beaudin & Lang LLP Phone: 604.642.2424 E-mail: hstephenson@ahbl.cahstephenson@ahbl.ca The information contained in this presentation is for informational purposes only and does not create a lawyer-client relationship. The information provided in this presentation is summary in nature and does not constitute legal advice. We would be pleased to provide additional details or advice about specific situations if desired. For permission to disseminate this information, please contact Heather Gray-Grant, Director of Marketing at (604) 688-1351.