Nussbaum v. Lacopo, 27 N.Y.2d 311 (1970)

A property owner bordering a golf course assumes a certain level of risk from errant golf balls, and neither the golf course nor the golfer is liable for injuries resulting from an unforeseeable shot given the presence of a natural barrier and lack of prior notice of similar incidents.

Summary

Plaintiff, residing next to a golf course, was allegedly struck by a golf ball hit by defendant Lacopo, a trespasser on the course. The plaintiff sued both Lacopo and the country club, alleging negligence and nuisance. The court held that neither defendant was liable. The country club wasn’t liable because the shot was a collateral act by a trespasser, and the design of the course wasn’t a nuisance. Lacopo wasn’t liable because the shot was unforeseeable given the natural barrier of trees and rough between the fairway and the plaintiff’s property, and the plaintiff assumed some risk by living next to the course. The court emphasized that lack of notice, assumption of risk, and lack of foreseeability all contributed to the decision.

Facts

Plaintiff’s property abutted the 13th hole of the defendant country club. A 20-30 foot rough and 45-60 foot high trees separated the patio from the fairway. Defendant Lacopo, a trespasser, hit a bad shot that “hooked” and crossed over into plaintiff’s patio, allegedly hitting plaintiff. Lacopo did not shout “Fore!” The rough was dense and the trees were in full foliage at the time.

Procedural History

Plaintiff sued the golf club for nuisance and negligence in design and the golfer for failure to give a warning. The trial court dismissed the complaint at the close of the plaintiff’s case. The Appellate Division affirmed. The New York Court of Appeals affirmed the Appellate Division’s order.

Issue(s)

1. Whether the country club was liable for the trespasser’s negligent act under a theory of nuisance or negligence in design.

2. Whether the golfer was liable for failing to give a warning and for hitting a bad shot that injured the plaintiff.

Holding

1. No, because the shot was an abnormal departure from ordinary action constituting collateral negligence and the design of the course did not create a nuisance.

2. No, because the risk was unforeseeable, the plaintiff assumed some risk by living next to the golf course, and the duty to warn did not extend to the plaintiff in this situation.

Court’s Reasoning

The court reasoned that the country club was not liable because the golfer was a trespasser, and the club could only be liable for risks inherent in the performance of an actor permitted to use the land, not for collateral negligence. The design of the golf course was not a nuisance because occasional errant golf balls do not constitute a substantial impairment of the plaintiff’s rights. One who chooses to reside on property abutting a golf course must accept the occasional, concomitant annoyances.

Regarding the golfer’s liability, the court held that the shot was unforeseeable because of the dense rough and high trees separating the fairway from the plaintiff’s property. The court stated, “Under these circumstances the possibility of an accident could not be clear ‘to the ordinarily prudent eye.’” The court distinguished cases involving highways, where the risk is more foreseeable due to the lack of a significant barrier. The court also found that the duty to warn did not extend to the plaintiff, who lived so close to the golf course that he would likely ignore such warnings. Finally, the court noted that the plaintiff failed to show that the defendant failed to use due care in striking the ball.

The court emphasized the plaintiff assumed a risk by residing next to a golf course. “Looking back from the alleged injury to the event, we consider it highly exceptional that a player’s conduct would have brought about harm.” The court concluded that to allow a jury to decide the issue would be to substitute surmise and speculation for reason.

Quoting Campbell v. Seaman, 63 N. Y. 568, 577: “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.” Also, “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.”