Stern v. Easter

[1251] Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when she was struck by a golf ball that was driven by an unknown golfer allegedly from the 18th tee of the Brooklawn Golf Club (Brooklawn), which is owned by defendant Midcourt Builders Corp. (Midcourt). Defendant Guy H. Easter and his wife are the owners of Midcourt. At the time she was struck, plaintiff was having coffee with a friend at the outdoor patio area of an office building adjacent to the golf course. The building was owned by defendants Perneo Properties III and PG Associates (Perneo defendants). Plaintiff asserted causes of action for negligence against Easter, individually and doing business as Brooklawn, and against Midcourt, the Perneo defendants and “John Doe,” the golfer who allegedly struck the ball from the 18th tee. Following discovery, the Perneo defendants, as well as Easter and Midcourt, moved for summary judgment dismissing the complaint against them. Supreme Court granted the motion of the Perneo defendants and granted only that part of the motion of defendants Easter and Midcourt with respect to Easter. We conclude that the court should have granted the motion of Easter and Midcourt in its entirety, and we therefore modify the order accordingly. As plaintiff correctly contends, a property owner generally owes a duty “to exercise reasonable care in the maintenance of its property to prevent foreseeable injury that might occur on the adjoining property” (Gayden v City of Rochester, 148 AD2d 975, 975 [1989]; see Gellman v Seawane Golf & Country Club, Inc., 24 AD3d 415, 418 [2005]). There is, however, “no legal duty to protect against an occurrence which is extraordinary in nature and would not suggest itself to a reasonably careful and prudent person as one which should be guarded against” (Martinez v Santoro, 273 AD2d 448, 448 [2000]). Thus, a golf course may not be held liable “within the concepts of negligence [for golf balls entering adjoining property where there is] lack of notice . . . and lack of foreseeability” (Nussbaum v Lacopo, 27 NY2d 311, 316 [1970]). Here, “[t]he record does not support a conclusion that the occurrence was frequent. In fact, plaintiffs evidence ... is consistent with occasional incursions only. Thus, there is no [evidence] upon which to base a finding of even constructive notice,” nor is there evidence upon which to base a finding of foreseeability (id.). The uncontroverted evidence in the record before us establishes that the patio area where plaintiff was struck by the golf ball was constructed many years after the golf course had been built. Moreover, the patio was over 200 yards from the 18th tee, [1252] and over 150 feet from the middle of the 18th fairway. The friend with whom plaintiff was having coffee is the only source of evidence that any golf ball had ever entered the patio area. According to the friend’s deposition testimony, he recalled that, on one occasion during a company picnic, a golf ball had rolled onto the patio from the direction of the 18th tee. Midcourt, however, had no notice of that occurrence. Rather, the evidence submitted by plaintiff established that Midcourt had notice that only two golf balls struck the building owned by the Perneo defendants over the course of 15 years. One of the balls struck the building approximately 75 feet from the patio area, while the other ball struck the building approximately 100 feet from the patio area. We note that the record is devoid of evidence that those golf balls were driven from the 18th tee and, given the configuration of the golf course, it would be merely speculative to conclude that they were (see generally Mallen v Farmingdale Lanes, LLC, 89 AD3d 996 [2011]; Endieveri v County of Oneida, 35 AD3d 1268 [2006]). In any event, even assuming, arguendo, that the golf balls that struck the building were driven from the 18th tee, we conclude that two such incursions over the course of approximately 15 years is too infrequent to constitute notice of an unreasonably dangerous condition (see Nussbaum, 27 NY2d at 316). While “ ‘[questions concerning foreseeability and proximate cause are generally questions for the jury’ ” (Paul v Cooper, 45 AD3d 1485, 1487 [2007]; see Prystajko v Western N.Y. Pub. Broadcasting Assn., 57 AD3d 1401 [2008]), “where only one conclusion may be drawn from the established facts . . . the question of legal cause may be decided as a matter of law” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980], rearg denied 52 NY2d 784, 829 [1980]). That is the case here with respect to the issue of foreseeability. The incursion of golf balls onto the property where plaintiff was situated was so minimal and infrequent as to compel the conclusion that, as a matter of law, the golf ball incident in question was an extraordinary occurrence that a reasonably prudent golf course owner would not be expected to guard against (see generally Martinez v Santoro, 273 AD2d 448 [2000]; Clifford v Sachem Cent. School Dist. at Holbrook, 271 AD2d 470 [2000], lv denied 95 NY2d 759 [2000]). For the same reasons, we conclude that the court properly granted the motion of the Perneo defendants. Plaintiff submitted evidence that those defendants had notice of only two golf balls striking the building, and neither ball landed in or within 75 feet of the patio area where plaintiff was injured. Although there was evidence that vehicles in the parking lot of the Perneo [1253] defendants were hit by balls driven from the 10th tee, the patio is on a different side of the building from the side adjacent to the parking lot. In addition, the patio is behind the 10th tee, rendering it highly unlikely that a ball struck therefrom or from anywhere else on that hole could land in the patio area. Thus, the fact that golf balls driven from the 10th tee sometimes landed in the parking lot did not serve to place the Pemco defendants on notice that someone in the patio area could be struck by a golf ball. We therefore conclude that, as with Midcourt, evidence that two balls struck the Pemco defendants’ building over a course of approximately 15 years is simply too minimal and infrequent to give rise to liability against the Pemco defendants. All concur except Fahey, J.E, who dissents and votes to modify in accordance with the following memorandum.