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SJC overturns Kingston couple’s $5 million judgment for golf ball damage

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Sweetened

The High Court of Justice said that the judge’s error meant that a new trial was necessary.

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The Tenczars, Eric and Athena are photographed through a broken window in their home in April. Jonathan Wiggs/Globe Staff

The Massachusetts Supreme Judicial Court on Tuesday overturned Nearly $5 million judgment a year ago for a Kingston couplewho sued after his home came under fire from hundreds of stray golf balls from a nearby country club.

The unanimous decision, penned by Justice Scott Kafker, says the massive ruling was overturned due to an “apparent error” by Supreme Court Justice William M. Country Club Inc. in December 2021.

The error prevented the jury from answering a crucial question in the case: whether the country club’s 15th hole—with its tee boxes and packed course at the original points of the balls that bowled Tenczars home—was reasonably run.

Reversing the ruling, the High Court of Justice says a new trial at Plymouth High Court is necessary, because the judges cannot determine “as a matter of law” whether that hole and the number of errant golf balls that flew into the family’s yard were actually reasonable, Kafker wrote.

“With golf,” Kafker wrote, “some misses, off the line, are inevitable, but the expected pattern of misses that arise from irrational golf course play is not.”

Robert Galvin, the attorney representing the Tenczar family, indicated Tuesday afternoon that the couple believe the jury will again sympathize with their case in a new trial.

He said a reasonably operated golf course did not result in property damage.

“This family has no other choice[but]to go through with this, and I think we’ve proven the opinion of a jury of reasonable people in this particular situation,” Galvin told Boston.com.

The Indian Bond Country Club attorney did not immediately respond to a request for comment.

The Tenczars family purchased their home in the Indian Pond Estates subdivision in 2017.

Over the next four years, 651 golf balls allegedly hit their property. The couple said in court that the balls broke eight windows and damaged the house’s siding and balustrade on its exterior, in addition to other effects on their family.

Eric Tenczar testified to the mental exhaustion caused by worrying about his golf ball strokes and the safety of his children, and his “hopeless” remarks to his wife[ness]”Fear, tension and nervousness in his children,” Kafker wrote in Tuesday’s decision. “Athena Tenkzar testified that golf ball strikes interrupted her work calls and woke her children during naps, and described golf balls as ‘scary’ and ‘messy.’ Her expectations about her ability to use the outdoor space in her home were not met.”

The jury awarded Tenczars $3.5 million for damages and emotional and mental suffering — an award totaling $4.9 million with benefits.

The country club filed an appeal with the state courts in April.

According to Kafker, White’s fault was his failure to properly instruct the jury to consider the facilities granted to the country club in 2001.

In play in this situation there are two types of easements: one that gives Indian Pond golfers the right to retrieve their balls from unimproved portions of adjacent properties and one that allows for the “reasonable operation of a golf course”.

The Supreme Judicial Council concluded that the latest ruling covers “escaping stray balls” into neighboring properties.

“Stray golf balls are as much to golf as foul balls and fouls are to baseball. They are a natural part of the game,” Kafker writes. “They have shown the difficulty and challenge of the sport even to the best players. Despite practice, instruction, technological improvements, and even the design and good running of a golf course—disputed at once—golf shots deflect, naturally.”

White had the jury consider only the earlier verdict in the trial, and failure to give the jury proper instructions on second accommodations was “harmful,” the Supreme Court of Justice ruled.

The judges also determined that White had issued a permanent miscarriage of justice preventing the golf course from operating in such a way as to allow golf balls to enter Tenczars’ property.

Kaffker said a new trial was needed because the jury’s verdict could have been different without White’s fault on the mitigations.

“The reasonableness of playing the 15th hole has been in dispute, but the jury has not been properly instructed on how to decide this question, including how to evaluate foul shots,” Kafker wrote. “Instead, the jury was only made aware of the redeemable easements, which in isolation were misleading.”

Therefore, the key question in the case is whether the 15th hole play was reasonable, given the number of balls that Tenczars hit home, according to Kafker.

He wrote, “Although the operator of a golf course cannot reasonably prevent all widely missed shots from hitting a house next to his course, he can reasonably prevent a steady and predictable flow of shots from hitting such a house.”

In 2019, Indian Pond incorporated some mitigation efforts in lieu of ruling on a preliminary injunction filed by Tenczars prior to that year’s golf season. The couple eventually found the measures ineffective and returned to their legal options in 2020.

However, those efforts reduced the number of balls hitting the family’s possessions.

Prior to the changes, in 2018, 130 balls were found on the property, and 30 of them hit the house. After remedial measures were taken, 89 to 99 balls were found in each of the next three years, of which 9 to 13 hit home runs, according to the HCJ report.

Plaintiff expert [a golf course accident investigator] He testified that he had no objections to… the proposed mitigation measures, but thought they “didn’t go far enough,” Kafker wrote.

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