Golfweek readers were moved by the story of the Tenczar family, who sued a country club and won nearly $5 million after their home was destroyed by too many golf balls.
Several people immediately pointed out that my analogy to the iconic McDonald’s hot coffee case was dubious at best, and they recommended that I see the documentary “Hot Coffee.”
“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, who are randomly selected, listen to the evidence and make a decision based on the evidence and law,” said Steven Gelfman, a lawyer who practices in Missouri.
“We may not have a perfect civil system, but I assure you that it is the best system in the world where two disputing parties can have 12 independent individuals from their community listen to the evidence, follow the law, and make a decision,” he added.
Then I got a call from Bob Galvin, the Duxbury, Massachusetts, attorney for the Tenczar family, who had filed a lawsuit against Indian Pond Country Club in Kingston, Massachusetts. According to The Boston Globe, the Tenczars paid $750,000 for the new four-bedroom, 3,000-square-foot home in Indian Pond Estates on the south shore in April 2017.
Galvin described the article as “fair and balanced,” but he also wanted to provide some perspective that I may have lacked in expressing my opinion that I couldn’t feel sorry for his client’s plight.
“This was the Tenczars’ first home,” Galvin wrote. “Before the golf course was designed and built, the lot was developed and laid out on a subdivision plan, 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 bought the house from the builder, a ball broke a window, and the builder was told by the course owner that it was an isolated incident that would not happen again.
“In Massachusetts, under current law, if the ordinary use of a golf course necessitates land beyond the course boundaries to accommodate the travel of errant shots, the golf course is required to acquire either the fee in the additional land itself, or the right to use the additional land for that purpose.” The principle holds true regardless of whether the course or home came first.”
“The (15th) hole was constructed with a large fairway straight in front of the tee areas for a straight tee ball,” he stated. In reality, the hole’s description on the course’s website encouraged golfers to try to cut the corner over a sand trap and reach another area that is substantially closer to the Tenczar residence, and put everything in play from errant balls. Before hiring an attorney or filing a lawsuit, the Tenczars constantly sought assistance from the course owner.
They even got a proposal to put up a net on their land, as well as another near the tee. Both were rebuffed by the course owner, who continued to ignore them. Because their house is lower than the tee, a ball may easily be shot over the net from the tee area, which is obscured from view from their yard, no matter how high the netting is put (even at 80 feet, for example).
Because people cut the corner of the dogleg hole, the family had to replace 26 windows, all of the siding on two sides (which is not simply dented – there are golf ball-sized holes in it), and no part of their yard was safe because it was all in play with only a slightly errant shot (a pull or hook). Although the course has erected a new tee further back, they have been utilizing a temporary tee near to their property, which has eliminated all but an intentional shot at their home (which has to our knowledge never occurred).
“Despite having every chance, the course owner never reserved an easement in the portion of their lot where the yard and home were built. He and his counsel contended at trial that someone cannot buy a property adjacent to a golf course and then complain about it; yet, that is precisely why an easement or license is reserved in course communities – and it wasn’t in this case.
“Damian Pascuzzo, the golf course architect, was as forthright as one could expect, denying there was a flaw in his initial design but admitting that 651 golf balls were a problem.” I used (golf course architect) Michael Johnstone, who, unlike Pascuzzo, came to the course and saw the problem firsthand.”
Galvin included a letter from Johnstone dated Oct. 14, 2019 in his e-mail response to me, 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 put the Tenczar’s home in a
“I propose that Indian Pond Country Club’s 15th hole be closed immediately or temporarily shortened to a par 3 hole with temporary tees positioned parallel to or beyond the Tenczar’s home in the fairway,” he concludes.
“The amount of mental distress damages in this case is significant, and while I am not privy to the jury deliberations, my assumption is that they recognized that this young couple was essentially unable to safely use their yard, deck, or even sit safely in their own home for 4.5 years,” Galvin continued. They testify sincerely and honestly about their sentiments and mental state before the jury and court.
They are a wonderful nice couple who begged the course to help them because the only way to solve the problem was for the course to erect a barrier at the tee, change the location of the tee, or change the hole – all of which they refused to do despite the fact that the impact and safety issue were well known.
“This was never about the money; we didn’t suit for $5 million.” With the jury, we didn’t even quantify or ask for a precise sum for mental distress damages; we merely asked for property damages. We simply asked a jury in Plymouth County to award them what they thought was fair and equitable, and they came up with $3.5 million (plus statutory interest, for a total of $4.9 million). About two months after the trial, the course petitioned the judge to decrease the verdict. I assume that the judge who heard all of the evidence declined to substitute his judgment for the jury’s because he, too, heard the evidence and saw how sincere this family was in their explanations of the consequences.”
The country club’s lawyers filed a notice of intent to appeal the case in March.
“Given the evidence, we’re optimistic that an appeals court will perceive it the same way the jury and subsequently the judge did,” Galvin said.
“I think what is most essential in all of this is to remember that this family simply wanted to be safe in their house and in their yard – nothing more or less,” Galvin stated in a follow-up email.
“They sought assistance knowing that the only genuine answer would come from the course owner, who had been mainly unconcerned about their plight for the previous four years. There was no easement or agreement in place that enabled the golf course’s stray balls to fly into or over the area where their house was built. There would be no risk to the golf course if there was.
“Yes, some truly modest safeguards were put in place, but only after a lawsuit was filed. These inadequate safeguards were ineffective against this truly dangerous situation, where golf balls struck from the 15th hole’s tee could easily have gravely wounded or killed someone. The Tenczars were sincere in their description of the consequences of living in this manner while raising three small children, and I am certain that this was the most crucial reason in the jury’s decision to award them the sum they did.
“I expect this will make people who work on golf courses or other types of recreational facilities sit up and think about if their use is having negative consequences that could be remedied cheaply before they turn into lawsuits.”
“The situation was simply resolved by some quick tee hole tweaks, which was all we asked for at the outset.” The course resisted until it became clear that this duty could no longer be evaded and the court ordered it. In retrospect, it should never have had to come to this.”
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