Does HOA Have Liability for Golf Injury?

Question: A Gilbert home is on the fairway of the first hole of a golf course. The homeowner’s association (“HOA”) for the community is basically bankrupt because of numerous foreclosures. The Covenants, Conditions and Restrictions (“CC&Rs”) for the community prohibits hitting golf balls in the community park. However, the HOA has not been enforcing this prohibition, and every evening and every weekend there are homeowners hitting golf balls in the community park. Last week a homeowner’s wife got hit in the mouth by a golf ball while in their backyard. The homeowners originally thought there was only minor bleeding, but now she may need some dental work done. The homeowners have no idea who hit the golf ball. Does the HOA have any liability? If so, will the HOA have liability insurance? Should we contact an Arizona real estate attorney?

Answer: First, if neither the HOA nor the individual homeowners have been enforcing the CC&Rs prohibition against the hitting of golf balls in the community park for an extended period of time, this CC&Rs provision may have been waived. Therefore, even if you knew the individual that hit the golf ball, that individual would probably only have liability if that individual could reasonably foresee that the golf ball would be hit into a backyard. “Foreseeability” would be different depending upon whether Tiger Woods or a weekend golfer was hitting the golf ball. Second, if this CC&Rs provision has been waived, the HOA may have liability for non-enforcement of their CC&Rs provision. Third, the HOA may have had a separate obligation to properly maintain the community park.

In other words, if golf balls were being hit in the community park, the HOA may have had an obligation to properly maintain the park, e.g., place fencing or a wall around the community park. In a leading Arizona case a woman was hitting practice balls on the driving range at the Arizona Country Club when she was struck by a golfer driving his golf ball from the first tee. The woman sued not only the golfer, but also the Arizona Country Club. The Arizona Supreme Court said that, “if the golfer and the Arizona Country Club could have reasonably foreseen that a golfer driving from the first tee could strike a golfer hitting practice balls on the driving range, the golfer would have had a duty to warn (generally by yelling “fore”), and the Arizona Country Club would have had a duty to take protective measures such as building a fence.

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