Indiana justices weigh whether golf course must stop balls from landing on neighbor’s property

A northern Indiana golf course could be forced to raise its protective netting or shut down its driving range if a homeowner prevails in a yearslong dispute over thousands of errant golf balls.

Indiana Supreme Court justices heard arguments Thursday in a case between Mitchell Schultz and Sandy Pines Golf Club in DeMotte, where an estimated 1,500 golf balls annually have landed on neighboring residential property since the club opened a driving range in 2018, according to court records.

A trial court previously found the golf course liable for trespass but assigned Schultz 95% of the fault because he acquired ownership of the property knowing golf balls were landing there. The Indiana Court of Appeals overturned that determination in December, finding that comparative fault cannot be used to reduce liability for an intentional tort.

But during Thursday’s arguments, Schultz’s attorney, Jacob Ahler, told the high court his client is not seeking financial compensation. Instead, he wants the golf balls to stop coming onto the property.

That prompted several justices to question whether Indiana’s Comparative Fault Act — the law at the center of the appeal — applies to the case at all.

“I think you may have significantly narrowed and simplified this case,” Justice Derek Molter told Ahler.

The court has not yet decided whether to accept jurisdiction over the appeal. Chief Justice Loretta Rush said Thursday that the justices must first determine whether to grant transfer, which would allow them to review the appellate ruling.

The court could then uphold the Court of Appeals decision or issue its own ruling on the legal questions raised by the dispute. If the justices deny transfer, the appellate ruling would stand.

Thousands of golf balls, years of complaints

The dispute dates to 2018, when S.P. Real Estate LLC, which operates Sandy Pines Golf Club, added a driving range next to property that had been in the Schultz family for more than five decades.

The golf course itself had operated for decades before the driving range was built. The club purchased the land for the new range from Schultz’s brother.

Schultz grew up on the neighboring property, moved away and returned around 2008 to care for his aging mother, according to court documents.

After the driving range opened, golf balls began regularly landing on the family’s property.

The appellate court described about 1,500 balls a year — some broke windows, fell into the swimming pool and caused other property damage.

Schultz said he began parking his vehicle at the far end of the driveway and sitting beneath a tent when using the backyard to avoid being struck.

He repeatedly complained to the golf course.

Sandy Pines responded by using lower-flight range balls, instructing golfers not to hit balls over the net separating the properties and discouraging use of tee boxes closest to the Schultz property.

But the changes did not stop the problem, according to court filings.

In 2020, Schultz’s mother transferred ownership of the property to him on an attorney’s advice so he would have standing to sue.

Schultz later filed claims alleging negligent design, nuisance and trespass.

The Jasper Circuit Court dismissed the negligence and nuisance claims before trial. The court applied the legal doctrine of “coming to the nuisance,” reasoning that Schultz had acquired the property knowing about the golf balls.

The trespass claim survived, however.

After a bench trial, the court found Sandy Pines liable for trespass. At a subsequent proceeding, though, the judge assigned Schultz 95% of the fault and the golf course just 5%, leaving Schultz unable to recover damages under the comparative fault analysis.

The Court of Appeals reversed that determination.

“Liability for an intentional tort turns on the tortfeasor’s deliberate choice to commit the act,” Judge Leanna Weissmann wrote for the unanimous three-judge panel. “That intent cannot be reduced to a percentage of fault.”

The appellate court concluded that Sandy Pines remained fully liable for the trespass once the trial court established that the intentional tort had occurred. It sent the case back for further proceedings concerning damages and whether Schultz had failed to mitigate them.

The appellate judges also dismissed Sandy Pines’ challenge to the underlying trespass finding because the golf course had not provided an adequate trial record for review.

Justices question who is responsible

Much of Thursday’s argument focused on whether Sandy Pines can be held responsible for golf balls struck by its customers, rather than by the business itself.

Donald Shelmon, an attorney for the golf course, argued that individual golfers are responsible for their shots and that Sandy Pines cannot control precisely where those balls land.

The course had obtained local zoning approval for the driving range and used a professional designer, Shelmon told the court. He also disputed the reported number of golf balls reaching the Schultz property.

The golf course maintains that the trial court wrongly attributed the actions of individual golfers to the business.

Justice Mark Massa challenged the golf course’s argument, noting that Sandy Pines charges customers to hit golf balls at its driving range.

“Well, that’s not really what’s going on here, counsel,” Massa said. “You’re suggesting that the patrons of the driving range are the tortfeasors, not the business that’s operating a driving range that invites people to come and strike golf balls for a fee. That’s the intentional trespass alleged, isn’t it?”

Shelmon maintained that the golfers, rather than the course, committed the underlying acts.

The justices also pressed him on whether a neighboring homeowner should bear responsibility simply for living beside a driving range.

“How is fault attributable to the homeowner being showered with errant golf balls?” Massa asked.

Molter additionally raised a hypothetical involving a shooting range.

“I mean, would the argument really be that, ‘Hey, if you don’t want stray bullets coming through your kitchen window, don’t live next to a gun range?'” he asked.

Shelmon said the estimated number was disputed at trial, but Rush pointed to evidence that Schultz had collected buckets of golf balls from the property.

Could the court order the driving range closed?

The justices also questioned whether the dispute could be resolved without deciding how Indiana’s comparative fault law applies to intentional wrongdoing.

Molter pointed to language in the Comparative Fault Act limiting its application to actions brought to recover damages.

If Schultz is seeking only an order stopping the trespass, Molter suggested, the court might not need to decide whether comparative fault applies to intentional torts.

Ahler agreed that his client wants the continuing trespass stopped, rather than a financial award.

He argued that money would do little to address the underlying problem.

The justices asked whether the trial court could order the golf course to make changes to its operations if the trespass finding stands.

Ahler said an injunction could require higher protective netting or the closure of the driving range.

Ahler told the justices that 15 five-gallon buckets of golf balls remain in the Jasper County Courthouse attic, arguing that the collection demonstrated the existing protections had not worked.

Another question, too, was whether a request for an injunction would allow Sandy Pines to raise additional defenses on remand.

Molter noted that courts considering equitable relief must weigh competing interests and may consider legal doctrines that differ from those governing monetary damages.

Shelmon said that such defenses could potentially be available but maintained that the fundamental issue remained whether a golf course should be held responsible for balls hit by individual golfers.

He also disputed whether an injunction had been properly requested in the trial court, telling the justices that Thursday was the first time he had heard Schultz was seeking that remedy. Rush responded that Schultz’s brief identified an injunction as the relief sought.

He warned that allowing the trespass finding to stand could have consequences for golfers and golf course operators elsewhere in Indiana.

“It’s going to affect everyone who plays the game of golf,” Shelmon argued. “From the super senior league to the people that are just doing it, to everyone in between.”