Nussbaum v. Lacopo

27 N.Y.2d 311, 317 N.Y.S.2d 347, 265 N.E.2d 762 (1970)

 

RULE:

To constitute a nuisance, the use must be such as to produce a tangible and appreciable injury to neighboring property, or such as to render its enjoyment especially uncomfortable or inconvenient. But not every intrusion will constitute a nuisance. Persons living in organized communities must suffer some damage, annoyance and inconvenience from each other.

FACTS:


Appellant homeowner's residence was located on land abutting the thirteenth hole of a golf club's course. Player, a trespasser on the course, struck a ball from the thirteenth tee that crossed over into the area of homeowner's patio and there allegedly hit the homeowner. The homeowner filed an action against the golf club on theories of nuisance and negligence in design, and against player for failure to give a warning. The court dismissed the complaint. On appeal, the court affirmed the dismissal of the action.

ISSUE:

Did the evidence presented by plantiff establish a cause of action in negligence or nuisance?

ANSWER:

No.

CONCLUSION:

The court found that golf club exercised sufficient control over those who were permitted to play on its course. The court also found that the design of the course was not such as to create a cause of action in nuisance or in negligence. Nuisance imported a continuous invasion of rights, and the occasional errant golf ball that was found on homeowner's property did not constitute sufficient impairment of homeowner's rights. The court concluded that no liability could be imposed due to lack of notice, assumption of risk, and lack of foreseeability. The court determined that a prima facie case of negligence was also not proven against player due to assumption of the risk, lack of foreseeability, lack of duty, and failure to prove lack of due care. The court concluded that the relationship between the failure to warn and homeowner's injuries was tenuous at best.

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