The Massachusetts Supreme Judicial Court overturned on Tuesday a nearly $5 million verdict awarded a year ago to a Kingston couplewho sued after their home came under fire from hundreds of errant golf balls from a neighboring country club.
The unanimous decision, penned by Justice Scott Kafker, says the hefty judgment was vacated due to a “clear error” from Superior Court Judge William M. White Jr., who oversaw the six-day jury trial between Erik and Athina Tenczar and Indian Pond Country Club Inc. in December 2021.
The error prevented the jury from answering a critical question in the case: Whether the country club’s 15th hole — with its tee boxes and fairway the origin points of the balls that pelted the Tenczars’ home — was reasonably operated.
In reversing the ruling, the SJC says a new trial in Plymouth Superior Court is necessary, because justices can’t determine “as a matter of law” whether that hole and the number of errant golf balls that flew into the family’s yard was indeed reasonable , Kafker wrote.
“With golf, some errant shots, way off line, are inevitable, but a predictable pattern of errant shots that arise from the unreasonable golf course operation is not,” Kafker wrote.
Robert Galvin, an attorney representing the Tenczars, indicated Tuesday afternoon the couple believes a jury will be sympathetic to their case again in a new trial.
A reasonably operated golf course does not result in property damage, he said.
“This family doesn’t have any other choice (but) to continue this, and I think we’ve proven what a jury of reasonable people think of this particular situation,” Galvin told Boston.com.
An attorney for Indian Pond Country Club did not immediately return a request for comment.
The Tenczars bought their home in the Indian Pond Estates subdivision in 2017.
Over the following four years, 651 golf balls allegedly hit their property. The balls broke eight windows and damaged the house’s siding and a railing on their outdoor deck, in addition to other impacts the situation had on their family, the couple said in court.
“Erik Tenczar tested to the mental exhaustion of worrying about golf ball strikes and his children’s safety, and his observations of his wife’s ‘hopeless[ness]’ and his children’s fear, stress, and nervousness,” Kafker wrote in Tuesday’s decision. “Athina Tenczar testified that golf ball strikes interrupted her work calls and woke up her children during naps, describing the golf balls as ‘scary’ and ‘chaotic.’ Her expectations of being able to use the outdoor space at her home were unfulfilled.”
The jury awarded the Tenczars $3.5 million for damages and emotional and mental suffering — an award totaling $4.9 million with interest.
The country club filed an appeal to the state courts in April.
According to Kafker, White’s error was his failure to properly instruct the jury to consider an easement granted to the country club in 2001.
At play in the case are two easements: one that grants Indian Pond golfers the right to retrieve their balls from unimproved portions of adjacent properties and another that allows for “reasonable operation of a golf course.”
The latter provision covers “the flight of errant balls” onto neighboring properties, the SJC concluded.
“Errant golf balls are to golf what foul balls and errors are to baseball. They are a natural part of the game,” Kafker wrote. “They demonstrate the difficulty and challenge of the sport even for the very best players. Despite practice, instruction, technological improvements, and even good golf course design and operation — disputed in the instant case — golf shots go awry, as a matter of course.”
White had the jury consider only the former provision at trial, and his failure to give the proper instruction on the second easement to the jury was “prejudicial,” the SJC ruled.
Justices also determined White wrongly issued a permanent injunction that prohibited the golf course from operating in a way that would allow golf balls onto the Tenczars’ property.
Kafker said a new trial is needed because the jury’s judgment may have been different without White’s error on the easements.
“The reasonableness of the operation of the fifteenth hole was in dispute, but the jury were not instructed properly on how to decide that question, including how to evaluate errant shots,” Kafker wrote. “Instead, the jury were only instructed about the able retrieval easement, which was misleading in isolation.”
Therefore, the main question in the case is whether the operation of the 15th hole is reasonable, taking into account how many balls hit the Tenczars’ home, according to Kafker.
“Although a golf course operator cannot reasonably prevent all widely errant shots from hitting a home next to its course, it can reasonably prevent a predictable and steady stream of shots from hitting such a home,” he wrote.
In 2019, Indian Pond incorporated some mitigation efforts in the lieu of a ruling on a motion for a preliminary injunction filed by the Tenczars ahead of that year’s golf season. The couple ultimately found the measures ineffective and returned to their legal options in 2020.
Still, those efforts reduced the number of balls hitting the family’s property.
Before the changes, in 2018, 130 balls were found on the property and 30 of them struck the house. After the remedial measures were put in place, in each of the next three years, 89 to 99 balls were found, of which 9 to 13 hit the house, according to the SJC filing.
“The plaintiff’s expert [a golf course accident investigator] tested that he had no objections to the … suggested mitigation measures, but he thought that they ‘didn’t go far enough,’” Kafker wrote.
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