Mass. SJC: $3.5 Million Payday for Torrent of Errant Golf Balls Not a Fore-Gone Conclusion


A Kingston couple was dealt a significant blow days before Christmas when the Supreme Judicial Court (SJC) set aside a jury verdict awarding them $3.5 million in damages for errant golf balls hitting their property. In Tenczar v. Indian Pond Country Club, Inc. (pdf), the SJC ruled that the trial judge erred in his jury instructions concerning easements applicable to the property. The plaintiffs’ home was subject to an easement providing for the “reasonable and efficient operation” of a golf course in the “customary and usual manner,” but the trial judge didn’t present to the jury the question of whether the golf course’s operation met that standard. So the question remains, how many errant shots on the 15th hole at the Indian Pond Country Club are reasonable?

The Kingston Planning Board endorsed a subdivision plan in the fall of 1998 for a residential development surrounding a golf course. The subdivision developer, Indian Pond, recorded a declaration of covenants and restrictions shortly thereafter, which set out certain covenants, restrictions, conditions, and agreements for the subdivision. Indian Pond built the golf course in 1999 and 2000 and it opened in 2001. Sales of residential lots took place simultaneously.

In 2001 Indian Pond recorded an amendment to the declaration of covenants and restrictions that applied to certain “golf course lots,” including the lot that the plaintiffs later purchased. The golf course lots became subject to the right and easement contained in the original declaration allowing golfers to retrieve errant golf balls on unimproved areas of those residential lots. The amended declaration also provided that golf course lots were subject to Indian Pond’s “right to reserve or grant easements for the benefit of the owner of the golf course for the reasonable and efficient operation of the golf course and its facilities in a customary and usual manner.” There were other restrictions on development of the golf course lots; specifically, no pools, swing sets, play sets, or clotheslines were allowed without Indian Pond’s consent. Homeowners must minimize any adverse impacts to the golf course.

When the plaintiffs bought their home on the 15th fairway in 2017, their deed expressly incorporated restrictions and easements of record that were in force. Presumably the plaintiffs had to acknowledge that living on Country Club Way alongside a golf course with specific easements in favor of the course owner and players meant they would be subject to the challenges associated with the game of golf, including errant shots. Nonetheless, the plaintiffs sued Indian Pond Country Club for trespass in July of 2018, 15 months after purchasing their lot.

After the lawsuit was filed Indian Pond implemented a number of remedial measures on the 15th hole to reduce the number of golf balls that ended up on the plaintiffs’ property. These measures did, in fact, reduce the number of balls that made their way to the property, but the plaintiffs weren’t satisfied. In 2019 they requested a preliminary injunction to prevent play on the 15th hole until Indian Pond implemented additional measures. A superior court judge denied the request, finding that Indian Pond had expressly reserved the right to create and operate a golf course on land within the subdivision and noting that the golf course was meant “to operate as the centerpiece of the subdivision.” (slip op. at 10)

The case went to trial in late 2021. The plaintiffs testified that 651 golf balls had hit their property since 2017, breaking eight windows and damaging the house’s siding and a railing on the deck. In various rulings and in his jury instructions, the trial judge focused only on the easement that allowed golfers to retrieve golf balls from unimproved portions of the plaintiffs’ property. The judge ruled that Indian Pond didn’t have an easement pertaining to the improved areas of the property. He didn’t address the language in the declaration allowing for reasonable operation of the golf course and didn’t give any jury instruction concerning the course operation easement.

The SJC decision reflects an understanding and appreciation of the challenges of golf. Not only does it provide a description of the 15th hole (a dogleg left with trees and a bunker discouraging shots along the left side of the fairway), but it refers repeatedly to the errant shots that are an inevitable part of the game. The court stated that “[a]ny golf course operated in the ‘customary and usual’ manner will result in some errant shots.” The court also noted that the plaintiffs’ contract with the homebuilder cautioned the plaintiffs that “errant golf balls are the ‘natural result of residing adjacent to a golf course.’” (slip op. at 24)

The court ruled that Indian Pond retained an easement for “golf ball intrusions onto plaintiffs’ property that resulted from the reasonable operation of the golf course.” (slip op. at 24) Because the trial judge did not instruct the jury regarding this easement, allowing them to determine whether the course’s operation was reasonable, the jury’s verdict couldn’t stand.

The disputed question is not whether golfers will hit errant shots. They will certainly do so. Rather, the question is whether the operation of the fifteenth hole was reasonable, given not only the inevitability of some widely errant shots but also the number of shots hitting the plaintiffs’ home. … Whether the operation of the fifteenth hole was inside or outside the range of reasonableness was a question for the jury to decide based on proper instruction.

(slip op. at 28)

The SJC’s decision contains considerable analysis of the facts and law applicable to the case. It also reflects a well-known reality; that is, property adjacent to a golf course is going to be hit with errant golf balls.

Perhaps the easement language in their deed and the warning contained in their sales contract didn’t give the plaintiffs a full appreciation for what it would be like living on the 15th fairway at Indian Pond. Or perhaps a subsequent trial and jury would conclude that the number of golf balls ending up on the plaintiffs’ property constitutes an unreasonable operation of the 15th hole. Having now lost their successful trial result and facing the additional time and expense of a second trial, perhaps the plaintiffs will consider living in a non-golf-course community.