Errant balls a 'trespass' to homeowners
BOSTON -- Joyce Amaral knew before buying her home that it was near the ninth hole of a golf course.
But she says wasn't prepared for the number of errant golf balls that came flying into her yard -- more than 1,800 in five years -- or the number of golfers who came along to retrieve them.
So she and a neighbor sued the owners of Rehoboth's Middlebrook Country Club. On Friday, the state Appeals Court found the wayward balls constitute a "continuing trespass" and ordered a lower court to find a solution.
During the 2003 trial, Amaral arrived at court with six plastic buckets, each containing about 300 golf balls, to illustrate how many landed in her yard. She said she gave many others away and had even used some to play golf herself.
She said damage from the stray balls included a broken window and broken screens and although no one was hurt, Amaral testified that the fear of being hit by a golf ball had diminished her enjoyment of her yard.
Amaral's neighbor, Carol Pray, said stray balls regularly landed in her swimming pool, forcing her to limit her children's time in the pool. She said a ball once struck her husband.
Michael F. Drywa Jr., who represented golf course owners Peter and Lucretia Cuppels, said they paid for numerous alterations to the golf course to try to alleviate the problem, including relocating the tee, installing signs instructing golfers to "aim left," and planting trees alongside the fairway.
He said the Cuppels hadn't decided whether to appeal.
Superior Court Judge Robert J. Kane had dismissed the lawsuit, ruling the homeowners had not shown operation of the golf course constituted a nuisance, which state law defined as an interference in the use and enjoyment of their land.
But the appeals court said the homeowners had shown that the stray balls were a "trespass," and thus an invasion of their land.
"It all really comes down to volume," said Preston W. Halperin, a lawyer for Amaral and Pray.
"We acknowledged that an occasional ball coming off of a golf course onto a neighboring property is going to happen," he said. "But this is not a situation where it is an occasional ball. We're talking about hundreds of balls to the point where she couldn't sit in her backyard."