Fore!

The Oklahoma Court of Civil Appeals Division II has reversed the grant of summary judgment to a defendant in claims brought by a homeowner against a driving range next door

In their amended petition filed in January 2023, the Lawrences asserted the back yard of their home abuts a “golf course, namely a driving range,” and that golf balls from the driving range — which runs parallel to their back property line — have caused damage to their home and caused them to be “fearful that an impact from the golf ball to a person in the backyard would cause a serious injury. Due to the fear of injury, [the Lawrences] can no longer enjoy the use of their backyard.” The Lawrences also stated they have two young children “who can no longer play in their backyard for fear of injury from golf balls . . . .”

Analysis

The Lawrences argue that the sheer number of golf balls landing on their yard and house is unreasonable and beyond what any purchaser might have anticipated. Oak Tree does not directly respond to what the Lawrences’ counsel referred to at the hearing as the “numerosity” of the golf balls landing on their property; instead, it argues that, as to the negligence theory, it does not owe the Lawrences a duty “to shield them from the risks inherent to purchasing property directly abutting a driving range,” and, as to the nuisance theory, the Lawrences’ claim “fails because there was no unlawful use of the driving range or duty owed by [Oak Tree]” and “because [the Lawrences] came to the alleged nuisance.” We address these theories separately below. As stated by one court, “[a]lthough there is a significant similarity and interplay between negligence and nuisance, these [theories of recovery] should be treated separately so as to avoid confusion of issues.” Nussbaum v. Lacopo, 265 N.E.2d 762, 764 (N.Y. 1970) (action against a country club involving allegations of errant golf balls).

Plaintiff’s evidence

Regarding the number of golf balls that have landed on their property, the Lawrences attached to their response to the motion for summary judgment a list of the number of “Balls Picked Up” per week going back to August 2021, together with pictures of numerous golf balls in cardboard boxes apparently stored in their garage. According to this evidence, the Lawrences have picked up as many as 42 golf balls in a week and have often picked up approximately 20 to 40 golf balls per week. Consistent with this evidence, Ms. Lawrence testified the number “feels like 20 or 30 a week and . . . maybe more . . . .”

Based on the Lawrences’ deposition testimony, a portion of these golf balls land on their home and have caused property damage. Indeed, the Lawrences attached an estimate from Cline Construction OK, LLC, estimating repairs, including a roof replacement, in the amount of $67,282.31. Based on the deposition testimony, one daughter’s bedroom window was broken by a golf ball on two separate occasions. Ms. Lawrence testified that her children are

scared, just like I am. There’s many instances when we’ve been inside the house that golf balls have come into our patio area in the back of the house, have directly, without even bouncing, hit our window that faces the backyard, and that is the most scary because I’m afraid it’s going to break glass. Like, we’ve had my daughter[‘s] . . . window[] broken from a golf ball, several.

Ms. Lawrence testified that there are “times that [she is] working at home” when she has experienced golf balls “hitting the roof or the side . . . of the house, like, right where [she is] on that corner, too, it’s so scary.”

Defendant’s retort

Oak Tree asserts it owes no duty to the Lawrences because they voluntarily chose to purchase a house on a lot abutting a driving range. Oak Tree asserts:

The risk of golf balls entering the property is one of the natural risks assumed by individuals who choose to purchase a house that abuts a driving range, a prevailing purpose for which is to strike golf balls far distances. This is especially true in Oklahoma, where no individual can control, much less predict, the direction and intensity of the wind.

[The Lawrences] knew that the house they purchased was located on the driving range at the Oak Tree East course, and they knew golf balls would enter the premises of the property when they purchased it. This was a tradeoff they made to live on a golf course, close to a country club. That they no longer will tolerate the known and obvious risk associated with living in a house on a lot directly abutting a driving range does not mean, all of a sudden, that [Oak Tree] owes a duty to protect them from that inherent risk. [The Lawrences] voluntarily purchased the property with full knowledge that proximity to the driving range would mean that golf balls could enter the property line of their yard. Therefore, no legally cognizable duty by [Oak Tree] to [the Lawrences] exists.

The court

We conclude a substantial controversy exists regarding Oak Tree’s alleged negligence and the Lawrences’ alleged assumption of the risk. We further conclude a genuine dispute of material fact exists as to whether the circumstances constitute a nuisance. Therefore, we reverse the district court’s May 2024 Judgment granting Oak Tree’s motion for summary judgment, and we remand the case to the district court for further proceedings.

(Mike Frisch)