Tuesday, June 24, 2014

It's raining golf balls.

Practice point:  Plaintiffs made a prima facie showing of entitlement to judgment as a matter of law on the cause of action alleging private nuisance by demonstrating that defendant has operated its golf course in a manner that has failed to sufficiently reduce the number of golf balls landing on the plaintiffs' property, producing a tangible and appreciable injury to the property that renders its enjoyment especially uncomfortable and inconvenient.

Similarly, the plaintiffs' submissions were sufficient to establish their prima facie entitlement with respect to the cause of action alleging trespass. Their submissions demonstrate that golf balls have invaded their property with such frequency and over such a long period of time, without defendant taking steps to sufficiently abate the situation, so as to amount to willfulness.

They also established, prima facie, that defendant breached its duty to exercise reasonable care in the maintenance and use of its property to prevent foreseeable injury that might occur on adjoining property by failing to take precautions in design and location, in the form of play, or in the erection of protective devices as a safeguard against injury to the plaintiffs' property.

Student note:  The elements of a private nuisance cause of action are an interference which is (1) substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act.

The essence of trespass is the invasion of a person's interest in the exclusive possession of land. The invasion of, or intrusion upon, the property interest must at least be the immediate or inevitable consequence of what the defendant willfully does, or which he does so negligently.

Case:  Behar v. Quaker Ridge Golf Club, Inc., NY Slip Op 04456 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Dismissal of conversion and contract claims.