By: Rob Harris
In 2009 Robert and Katherine Brady purchased a home in Hamilton, Montana. The home, which was built in 2005, has the good or bad fortune (depending on whether one aspires to be a seller of used golf balls), to border the 18th hole of the public Hamilton Golf Club. By their reckoning, the Brady homestead serves as the landing area for 1300 sliced golf balls per year.
In October 2011, Attorney Alex Beal, on behalf of Mr. and Mrs. Brady, sent an impassioned letter to the Hamilton Golf Course Board of Directors and the Board of County Commissioners. Attorney Beal explained that the incoming golf balls “routinely hit the house and roof, breaking windows, denting and warping window frames, hitting vehicles in the driveway (to do this they have to clear the house first), nearly hitting multiple contractors, the Bradys, and their guests, and generally depriving the Bradys of the use of their property.”
Confronting the troublesome fact that Mr. and Mrs. Brady elected to purchase their home cognizant of its location, Attorney Beal, characterizing the condition as “potentially lethal,” offered a survey of case decisions that ostensibly supported his argument that remedial steps should be taken. Suggesting that “there are no viable defenses to your liability,” Attorney Beal stated that, absent satisfactory corrective action, “you should expect to be served with a complaint seeking to enjoin the use of the 18th hole as well as for damages.” Choosing an interesting metaphor, Attorney Beal concluded with an admonition that “the ball is now in your court.”
When no satisfactory solution was forthcoming, the Bradys and their counsel followed through with their promise, filing suit. As part of their legal action, they sought a temporary injunction to shut down or modify the 18th hole.
The plaintiffs’ asserted belief that “there are no viable defenses to liability” proved not to be shared by the judge. Faced with the fact that the 18th hole had been around for 25 years before the Bradys’ home was built, District Judge James Haynes concluded that concluded that the likelihood that the Bradys will win the nuisance part of the lawsuit is low, and denied the request for an injunction.
Judge Haynes observed that Mr. Brady, a former contractor, and Mrs. Brady, a former real estate agent, should have known to make inquiry about the status of incoming golf balls. He also observed that the Bradys can reduce the risk of injury by installing netting screens near the home.
The injunction proceeding was a preliminary matter, so the case will continue to work toward an ultimate trial. For now, however, those playing at Hamilton Golf Club will be able to play more than 17 holes. and the Bradys can defray their legal costs and the installation of netting by selling used golf balls per year on Ebay.