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Rachel L. Stern v. Guy H. Easter

February 10, 2012

RACHEL L. STERN,
PLAINTIFF-RESPONDENT-APPELLANT,
v.
GUY H. EASTER, INDIVIDUALLY AND DOING BUSINESS AS BROOKL AWN GOLF CLUB, MIDCOURT BUILDERS CORP.,
DEFENDANTS-APPELLANTS-RESPONDENTS, PEMCO PROPERTIES III, PG ASSOCIATES,
DEFENDANTS-RESPONDENTS, AND JOHN DOE, DEFENDANT.



Appeal and cross appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.), entered October 5, 2010.

Stern v Easter

Decided on February 10, 2012

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, AND MARTOCHE, JJ.

The order granted the motion of defendants Pemco Properties III and PG Associates for summary judgment, and granted in part and denied in part the motion of defendants Guy H. Easter, individually and doing business as Brooklawn Golf Club, and Midcourt Builders Corp. for summary judgment.

It is hereby ORDERED that the order so appealed from is modified on the law by granting the motion of defendants Guy H. Easter, individually and doing business as Brooklawn Golf Club, and Midcourt Builders Corp. in its entirety and dismissing the complaint against them and as modified the order is affirmed without costs.

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 Pemco Properties III and PG Associates (Pemco defendants). Plaintiff asserted causes of action for negligence against Easter, individually and doing business as Brooklawn, and against Midcourt, the Pemco defendants and "John Doe," the golfer who allegedly struck the ball from the 18th tee.

Following discovery, the Pemco defendants, as well as Easter and Midcourt, moved for summary judgment dismissing the complaint against them. Supreme Court granted the motion of the Pemco 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; see Gellman v Seawane Golf & Country Club, Inc., 24 AD3d 415, 418). 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). 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). Here, "[t]he record does not support a conclusion that the occurrence was frequent. In fact, plaintiff's 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, 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 Pemco 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; Endieveri v County of Oneida, 35 AD3d 1268).

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 " [q]uestions concerning foreseeability and proximate cause are generally questions for the jury' " (Paul v Cooper, 45 AD3d 1485, 1487; see Prystajko v Western N.Y. Pub. Broadcasting Assn., 57 AD3d 1401), "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, rearg denied 52 NY2d 784, 829). 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 ...


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