Jay Mitchell is tired of getting hit with golf balls and wants Morgan Creek Golf Course to pay for a dent in his wife's car.
Mitchell, whose home backs onto the course, says his house is repeatedly hit with golf balls, as are his vehicles and one hit him in the hip while working in his yard recently.
"We probably get 300 golf balls a year, if not more," Mitchell said, who has lived in the South Surrey home for four years.
He said the golf course has worked with him - they've adjusted the tee box markers and have put up some trees - but Mitchell isn't satisfied.
Morgan Creek was built as a golf course and residential development: the course winds through the residential area.
Some would say if your property literally backs onto the green, getting hit with balls is par for the course.
Mitchell agrees, to a point. "I've always thought that way, too. You will get hit every once in a while, it's going to happen, but all the time? Within six months I get two dents in my cars?" About six months ago, Mitchell said his truck was hit with a ball while he was home.
He said he walked onto the course, located the person who hit the ball and the golfer paid for the damage.
More recently, he said he returned home to see his wife's car with a dent and a golf ball lying next to it.
After some correspondence with the golf course's attorney, he was told if he couldn't find the person responsible, he would need to turn the matter over to his insurance company.
"Now I have to pay a deductible out of my own pocket and my insurance rates are going to go up eventually if it keeps happening. I don't really see how that should be my problem," Mitchell said. "It's wrong."
He wants the golf course to pay for the damages.
"I obviously can't be home all the time," he said.
Mitchell said he has home insurance, which would cover the windows, but doesn't have coverage for the shakes on his roof. He says he replaces 30 to 40 of them a year.
Mitchell is concerned that his wife or children will get hit with a golf ball.
"That would take it to the next level. They'd be shutting down the course," he said.
Mitchell also took issue with signs the golf course has posted at all the course entrances throughout the neighbourhood.
The signs say "Danger. Flying golf balls & maintenance equipment can cause severe injury or death."
"If it's that dangerous in there, isn't it just as dangerous out here?" he asked.
Mitchell pointed out that he's not against golfing - he's a member of the course and plays there.
"I just don't think they're being a very good neighbour," he said.
Nicholas Schmaling, in-house counsel for the golf course who has been in direct contact with Mitchell, says the Morgan Creek course has tried its best to be a good neighbour.
He said measures have been taken to work with the homeowner and minimize the number of balls leaving the course, including spending $20,000 on trees and planting, realigning tee areas near Mitchell's home and putting aiming poles in the fairway.
Schmaling said they've offered to put up netting, but Mitchell declined.
The golf course responds to every complaint that comes in, and responds according to its policy, Schmaling said.
"No complaint or concern that gets raised is ignored. We go there right away," he said.
When Mitchell asked the course to pay for damage to his wife's vehicle, Schmaling said no.
"People buy insurance for these types of accidents. It's unfortunate that the player didn't take on the responsibility that he in fact has," Schmaling said.
"When a player shanks a ball and causes damage, it's the player's responsibility," he said, but added the course tries its best to link up people in the event of an accident.
"We have a pretty good idea of who is where when. We go to the group that they think was involved and they ask and they talk to the group. Now, if everybody denies it, we can't do anything, but we try our best to try to get people to fess up," Schmaling said.
He said it's important that the Morgan Creek development be recognized for what it is - a golf course residential development.
People buy properties there for a variety of reasons, Schmaling said, including the desire to have a beautifully manicured open green space that's quiet.
Schmaling said it's no secret that there's an inherent risk when you live in a development next to a fairway.
"That inherent risk is one that buyers know about and accept.
People have done various things to tailor the way in which they use their properties." Schmaling said some owners have put up netting or arbours.
"People shank balls. Without any question, it's reasonable to expect you're going to have errant golf balls entering their properties. It happens; it's the nature of the beast."
Douglas Ferne, regional director of the B.C. chapter of the National Golf Course Owners Association, says the organization has dealt with this issue extensively.
"We've put on sessions not only around the province here, but actually at our national conferences," Ferne said.
These sessions give course owners all the information available, and owners are left to address the issue as they see fit.
On the NGCOA's website, an article, titled When Golf Balls Go Astray, What's Your Legal Liability?, says "the golf course owner should be just as concerned because the law on liability resulting from injuries caused by errant golf balls is not clear and the damage to the golf course owner could be financial and substantial."
The article goes on to say that a lawsuit for injury to persons or property will be based in most cases on the common law of "negligence" or "nuisance" and the statutory law under the Occupiers' Liability Act.
The article later notes that "Nuisance in a golf course setting is a structural or design flaw which constitutes a continuing risk of injury to persons or property adjoining the golf course. Holes abutting residential properties and roadways are typical examples."
If left unresolved, Mitchell says he may pursue litigation against Morgan Creek Golf Course.
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