The story of the Tenczar family, who sued a country club and won nearly $5 million after too many golf balls damaged their house, struck a nerve with Golfweek readers.
Several were quick to point out that my comparison to the infamous McDonald’s hot coffee lawsuit was suspect at best and suggested I watch the documentary “Hot Coffee.”
Steven Gelfman, a lawyer who practices in Missouri, sent the following via email: “I understand the perception of trial attorneys, injury cases and matters like the one you wrote about, but what most people don’t understand is that there are real disputes that for one reason or another could not be worked out/settled between the parties and only then 12 jurors, that are randomly selected, listen to the evidence and make a decision based on the evidence and law.”
He added: “We may not have a perfect civil system but I assure you it is the best system in the world where two parties that have a dispute can have 12 independent individuals from their community listen to the evidence, follow the law and make a decision.”
Then I heard from Bob Galvin, the Duxbury, Mass., attorney for the Tenczar family who brought a lawsuit against Indian Pond Country Club in Kingston, Mass. As The Boston Globe originally detailed in its story, the Tenczars purchased the new four-bedroom, 3,000-square-foot home in Indian Pond Estates on the south shore for $750,000 in April 2017.
Galvin called the article “fair and balanced,” but he also wanted to provide some perspective that I may have lacked in expressing my opinion that I had a hard time feeling sorry for his client’s plight.
“This was the first home for the Tenczars,” Galvin wrote. “The lot was developed and laid out on a subdivision plan before the golf course was designed and constructed and the current principal/owner of the entity that owns the course is also the principal of the entity that developed the lot. Before my clients purchased the home from the builder, according to the builder a ball had broken a window, and the builder was told that it was an isolated issue by the course owner and would not happen again.
“In Massachusetts, under the current law, to the extent that the ordinary use of a golf course requires land beyond the course boundaries to accommodate the travel of errant shots, it is incumbent on the golf course to acquire either the fee in the additional land itself, or the right to use the additional land for that purpose. Principle applies regardless of whether the course or home existed first.”
He continued: “The (15th) hole was designed for a straight tee ball with a generous fairway straight in front of the tee areas. In actuality, the course’s own website provided a description of the hole that encouraged players to try and cut the corner over a sand trap and reach another area which is significantly closer to the Tenczar home and placed all of it in play from errant balls. In this case, the Tenczars repeatedly asked for help from the course owner before hiring an attorney or bringing a suit. They even obtained a proposal to install a net on their property and a second near the tee. The course owner refused to consent to either and continued to ignore them. Their home is situated lower than the tee so no matter how high the netting is installed (even at 80 feet for example) a ball could still easily be hit over the net from the tee area which is hidden from view from their yard. The family has (had) to have 26 windows replaced, all the siding on two sides (which is not simply dented – there are golf ball-sized holes in it), and no portion of their yard was safe since all of it was in play with only a slightly errant shot (a pull or hook) given that people cut the corner of the dogleg hole. The course has installed a new tee further back but has been using a temporary tee which is located adjacent to their home eliminating all but a deliberate shot at their home (which has to our knowledge never occurred).
Photo of the Tenczar house with broken windows circled in orange. Courtesy Bob Galvin.
“The course owner never reserved an easement in the portion of their lot where the yard and home were constructed although he had every opportunity to do that. At trial he and counsel argued exactly what you might expect that someone cannot purchase a home next to a golf course and then complain about it; however, that is exactly why an easement or license is reserved in course communities – and it wasn’t here.
“Damian Pascuzzo the golf course architect was as honest as could be expected and although denying there was a defect in his original layout did not disagree that 651 golf balls represented a problem. I utilized (golf course architect) Michael Johnstone, who unlike Pascuzzo, visited the course and was able to clearly see the issue in person.”
In his e-mail response to me, Galvin included a letter from Johnstone dated Oct. 14, 2019 in which he reported the following findings: “The unique conditions here with a tee at a higher elevation than the house, players opting to cut the corner of the dogleg directly in front of the Tenczar’s home and the general visual enticement of the slanted fairway came together in a perfect storm to place the Tenczar’s home in a very dangerous position.”
His conclusion: “I suggest the 15th hole at Indian Pond Country Club should be closed immediately or temporarily shortened to a par 3 hole with temporary tees located parallel to or beyond the Tenczar’s home in the fairway.”
Galvin went on to say, “The amount of mental distress damages is significant in this case and I am not privy to the jury deliberations but my assumption is that they recognized that this young couple was basically unable to safely use their yard, deck or even sit safely in their own home for 4.5 years. The jury and judge hear them testify sincerely and honestly about their feelings and mental state. They are a wonderful nice couple that was literally begging the course to help them because only the course could solve the issue by either erecting a barrier at the tee, altering the location of the tee, or altering the hole – all of which they refused to do even though the impact and the safety issue was well known.
“This was most importantly never about the money, we didn’t sue for $5M. We didn’t even quantify or ask for any specific figure of mental distress damages only property damages with the jury. We simply asked a Plymouth County jury who heard the evidence to award them what they felt was fair and equitable and they came back with $3.5 million (with statutory interest it’s $4.9 million). After trial, the course asked the judge to reduce the verdict about 2 months later. The judge who heard all the evidence refused to substitute his judgment for that of the jury I suspect because he also heard the evidence and how sincere this family was in their explanation of the impacts to them.”
In March, lawyers for the country club filed a notice that it would seek to appeal the case.
“We are optimistic on appeal given the evidence that an appeals court will see it the same way as the jury and then the judge,” Galvin said.
In a follow-up email, Galvin wrote: “I think what is most important in all of this is to remember that this family simply wanted to be safe in their home and in their yard – nothing more or less.
“They asked for help knowing that the only real solution could come from the course owner and he/it was largely indifferent to their situation for 4 years. There was no easement or agreement that allowed the golf course’s errant balls to fly into or over that portion of the yard where their home was constructed. If there was, there would be no liability to the golf course.
“Yes, there were some truly modest measures implemented but only after a suit was brought. These modest measures were ineffective against this actually dangerous condition where someone could easily have been seriously injured or killed by the flight of golf balls struck from the tee of the 15th hole. The Tenczars were genuine in their explanation of the impact on them of living like this and having three young children and I am confident that this was the most important factor in why the jury awarded them the amount of money they did.
“I suspect that this will cause persons involved with golf courses or other types of recreational facilities to sit up and think about whether their use is having adverse impacts that could be inexpensively remedied before they spiral into litigation.
“The situation was easily remedied by some quick modifications to the tee hole which is all we asked for at the beginning. The course resisted until it was obvious that this obligation could not be avoided any longer and it was ordered by the court. Looking back on it, it never should have had to come to this.”
Source: Golfweek https://ift.tt/iA8fwS3