The Case of Boy Hit by Golf Ball

Here is the case (Lyshak v. City of Detroit--351 Mich. 230, 88 N.W.(2d) 596) of a seven-year-old boy whose eye was put out when he was struck by a golf ball as he played, with other boys, on the Redford golf course. He was 7 years old at the time, in the second grade at school.

In this case the boy referred to in the opinion as the plaintiff, sued the City of Detroit, and others, for damages. The City was the owner of the property on which the accident occurred. In the court where trial was had the jury awarded damages to the boy. The judge, however, set aside the verdict of the jury, and the boy's lawyers appealed to the Supreme Court of the State in the belief that the judge had erred in construing the law as he did.


Some of the technical parts of the opinion have been omitted, but enough is retained to show you the reasoning employed by the Justices of the Supreme Court who held that the trial judge had, in truth, committed error and that the boy should have damages. This is most of the actual opinion in the case, as expressed by Justice Smith:

Here we consider the case of a small boy whose eye was put out when he was struck by a golf ball as he played, with other boys, on the Redford golf course. He was 7 years old at the time, in the second-grade at school. The City of Detroit was one of the defendants.

The main thrust of plaintiff's argument on appeal is devoted to the proposition that defendant city knew that children "were constantly coming onto the golf course during the summer months, just as they had been doing for over a long period of time ." From this knowledge, says plaintiff, there arose "a duty on the part of defendant City of Detroit to keep a lookout for such children who might be on the golf course and, in the exercise of ordinary care, to discover their presence and the presence of infant plaintiff in a dangerous situation as presented itself on the day infant plaintiff was injured and exposed to the danger and peril of being struck by a flying golf ball." Plaintiff's conclusion is that the city breached this duty of care owed plaintiff and hence must respond in damages for injuries proximately caused thereby. The city counters with the primary assertion that "there most certainly can be no negligence where there is no duty," and that defendant city was under no obligation to trespassers or licensee to keep its premises safe for the use of children as a playground.

It is very disturbing to the peace of mind of appellate judges to read many cases. Indeed, it is often disturbing to read what the appellant has to say about a case that seemed so clear, so lacking in complexities, from the appellant's statement. And so it is here.

This case, we are told, concerns merely a trespassing child. And, as all know, a trespasser has no rights. A licensee has a few, and an invitee more, but as to a mere trespasser there is no duty of care.

There being no duty there can be no negligence, and there being no negligence there can be no recovery by a trespassing child, though grievously hurt.

And yet, if a defendant baits traps with stinking meat and thus lures a trespassing dog to destruction, the defendant has been held liable (Townsend v. Wathen,9 East 277, 103 Eng. Rep. 578).

Perplexing analogy

There seems to be here a valid (and perplexing) analogy. The theory is that one is liable if he lures something to its destruction.

In the case before us, a great city maintained, in a densely populated residential section, a park-like area, a golf course, with ample lawn, trees, and "a little creek." Upon this area, in the summer, children entered daily. They were drawn to it for purposes of play as naturally as the dog to the bait. The City of Detroit knew this, knowing it the only way a "city" can know anything, through the knowledge of its employees, servants, and agents. The professional at Redford knew it. The supervising greens keeper, who had charge of all men working on the golf course, and the repair and control of the fence, knew it. The official in charge of the Redford course knew it. However, knowing of the daily entrance of children onto the course, for purposes of childish play, the city, it is asserted, nevertheless continued to conduct thereon an enterprise of such character as to subject these children to risk of grave bodily injury, resulting in infant plaintiff's loss of one eye.

We will assume that the infant plaintiff, like the dog, was a trespasser. The dog's owner, nevertheless, recovered for his loss.

The boy, according to the trial court, is to get nothing. What kind of law is this? Is there a real difference in the cases? In the trespassing dog case Lord Ellenborough, Q J., said that the defendant (who had baited the trap) must be considered as having contemplated the probable consequences of his act, that he had influenced "the instinct of those animals" and had, in effect, drawn them "irresistibly to their destruction." In fact, said the Chief Justice, the dog "might scent the bait, without committing any trespass," so near was it placed to where the dog had a right to be without committing any trespass whatsoever. It takes great legal skill to distinguish the trespassing boy, having viewed the allurements of the park-like area across the crowded city street, where he had the right to be, from the trespassing dog that followed his instincts to his destruction, denying recovery to the trespassing boy, but granting it to the owner of the trespassing dog. We are not sure we possess the skill required.

We would be the last to deny, however, that there are real differences in the two cases. Thus the child has responsible parents.

They have, as we pointed out in denying recovery to a trespassing child "…….. both a natural and a legal "duty of care and watchfulness," and it is often because of a parental lack of care that the trespassing child is injured. In other words, the parents must keep the children in. It is not up to the adjoining landowner to keep them out. But again the reported cases disturb our complacency, the logic of our reasoning. For this was also the common law with respect to trespassing cattle. Yet in 1848, the Supreme Court of Illinois (Seeley v. Peters, 5 Gilman 130, 10 111. 130) reversed the common law precedent. It thus became a landowner's responsibility to keep trespassing cattle out. Why the change? The Court recognized that the environment for cattle had changed, hence the rule as to their trespasses should also change. "Cows on treeless and sparsely settled prairies required," it was reasoned, "different treatment from that given to cows in suburban communities."

Established facts

The issue relating, then, to an alleged trespass, we will consider in some detail the established facts bearing upon this point.

The record shows that the City of Detroit owns and operates the Redford golf course, where this accident occurred. It had, the city concedes, "been open during the winter months for winter sports," at which time children were permitted to enter for the purpose of play upon the skating rink and toboggan slide provided for their use. There would be "maybe three or four hundred at a time tobogganing and sledding." Infant plaintiff himself was often among this number and his usual method of gaining entrance to what was at this season of the year a playground was to crawl "under these holes," in the fence, rather than going around to the admission gate. (One witness testified that "there were close to thirty holes around the entire golf course through which children could get onto the golf course. The largest hole is about four feet by six feet." In addition, near the thirteenth fair way, "We have a ditch running through, and, of course, when there is not water in there, it is quite a hole." Finally, as another witness testified, "There was a gate back of the house and it had a chain on it but the chain came back far enough so you could walk right in.") At the conclusion of the winter sports, however (the precise date not appearing in the record), entrance was for bidden since the game of golf was there to be played. That which had theretofore been a place of safety and play became a place of danger. The playground had become a trap, the familiar area still inviting in appearance, but now involving hazard to those who had formerly played there. The city, of course, was aware of this.

Signs were posted "as early as the month of April of each year," from 24 to 30 in number, containing warnings; "The city will not be responsible for injuries sustained." "For players only." "Danger, golf course, for players only." In addition, it is claimed (and denied) that children were actually evicted from the golf course upon being found there. The record states that the services of "rangers" were utilized. These men, it was testified, "were the people working in the clubhouse too. The same people that served drinks and waited on the public." During the time "when they weren't busy, they went out on the course." It did not purport to be a constant patrol, testified Mr. Sweeney, the superintendent of public service for the City of Detroit, under whose jurisdiction comes "all revenue producing in the parks and recreation." As he put it, "We do not have rangers there all the time. We spot check. The ranger has various duties." One witness testified that he had seen rangers direct children oS the course "many times," another that he saw children on the golf course "just about every day in the week," that he never saw "anyone chase the children off the golf course." When asked as to rangers, "who would patrol the golf course to put the children off," he answered "I don't know definitely, but I have heard that they did." This witness had worked at the Redford course as a caddy, six days a week, from 1950 to 1952. "The average time I spent on the golf course," he testified, "amounted to fifty-seven hours per week and during this entire period of time that I spent on the golf course I never saw a ranger there. I do not know what type of uniform or insignia a ranger would wear." It was also testified that the laborers were instructed "to eject boys or anybody that is undesirable from the course" as incidental to their "main job" of taking care of the golf course.

Regardless, however, of how efficient the so-called rangers were in their duties of eviction, if, in fact, performed at all, there was testimony from which the jury could well find that children were constantly coming onto the golf course, to the knowledge of responsible employees of the city. "There is not a day goes by but that boys don't either burrow under the fence or climb over the top," testified one of the city's witnesses. It was a matter of common knowledge to him, he said. Another (Mr. Walker, senior public service attendant, in charge of the Redford golf course) when asked if "you yourself and most of the employees on the golf course knew that children were getting on that golf course?" answered "Sure." They were there (according to a witness for plaintiff) "just about every day of the week" and the witness never saw "anyone chase the children off the golf course." As a matter of fact the city's answer admits that "children often do get onto the Redford golf course by climbing over or under the fences surrounding the course, but such trespassing is without the consent of the persons in charge of the course."

It is clear that the plaintiff himself was not on the golf course as a matter of right. He was in the company of some older boys who were flying model airplanes. He entered, as we noted, by crawling through a hole under the fence. This was his customary entrance, even in the winter when the golf course was used as a playground for children. "When I crawled under the fence, I did not know that I should not have gone on the golf course. I did not know then why there was a fence there." His action, it is clear also, was in violation of the warning signs we have heretofore described.

Child’s comprehension

What is not clear on the record, however, is whether such signs (e.g., "The City will not be responsible for injuries sustained") were within the normal scope of comprehension of a child in the second-grade at school. Our recollection of the second grade is so obscured by the mists of time that even the broad outlines are lost and we cannot take judicial notice (even if such were permissible) of the fact. Decision, however, will not turn on this point. The lower court rested it on the holding that the boy was an out-and- out trespasser. The defendant city, in fact, states that such is the only question before us on appeal. Let us concede, then, only for the purpose of this analysis, that the city is right, that there is no element of invitation in the circumstances, and that the unquestioned winter license to play had been effectively revoked. Does it follow that the boy's eye can be put out with impunity, so far as the payment of damages is concerned? Get the question squarely before us: We are conceding that this second-grader violated the property rights of the City of Detroit, its exclusive right of possession.

In order completely to understand the case before us it is necessary that it be viewed in its historical perspective. It involves one of the great battlefields of our modern law, an area in which daily skirmishes are conducted, this case merely adding another to the long series. Arrayed against each other are two mighty forces: The sanctity of land ownership versus the duty of care.

We accept as commonplace today the principle that there is a duty upon all men so to conduct their activities as to minimize the likelihood of harm to others. "Negligence, as I understand it," stated Chief Justice Cooley in Detroit & Milwaukee Railroad Co.v. Van Steinburg, 17 Mich. 99, 118, "consists in a want of that reasonable care which would be exercised by a person of ordinary prudence under all the existing circumstances, in view of the probable danger of injury." The probable danger of injury to children playing on a golf course requires no elaboration. A powerfully driven golf ball in flight is a projectile of lethal qualities, as this record amply demonstrates. It has been held (Brooks V. Bass, La.App., 184 So. 222, 225) that "…… the ball driven with force by a golf stick in the hands of a player travels through the air with great velocity and in such case it becomes a dangerous instrumentality with respect to any person who might be within or near its line of flight. It must also be considered that a driven golf ball does not always follow the line of aim intended by the golf player and that even those who are expert at the game do not always attain perfection in their shots."

The difference between a golf course and a rifle range, then, as a playground for children, is a difference of degree only.

If duty is born of danger, the duty of the Qty of Detroit, knowing that children frequent a certain area, is clear. But at this point another factor comes into operation: the sanctity of land owner ship. As Bohlen put it (Studies in the Law of Torts, 46) in speaking of the English cases dealing with the rights of owners of real estate, "perhaps no higher form of privilege is known to the law than that of an owner to devote his land to what uses he sees fit, so long as he confined the effects of his uses to his own land." The doctrine was an outgrowth of feudal society, as natural to such society as zoning to an industrial complex. In such an era it was unthinkable that a mere trespasser, a poacher indeed, should have any rights. Under the ancient Forest laws, in fact, the killing of the king's deer "was equally penal with murdering one of his subjects."

"In feudal England the emphasis was all on the side of the proprietors of landed estates. It was to be expected that in an age in which feudal lords were practical sovereigns they would not ordinarily be subject to liability for harm to persons on the land. Surely, if even the king could not enter without permission, there was some basis for the rule that the possessor of land had no duty to anticipate trespassing or guard against harm to trespassers. Consequently the general rule was that there was no liability whatever upon the possessor for harm caused to infant or adult trespasser, or to trespassing animals, for harm received by them upon the land."

We need hardly elaborate upon the changes that have taken place since those times. A simple agrarian economy has been replaced by a crowded urban industrial society. The airliner furnishes daily and dramatic proof that the landowner no longer controls from his soil "up to the sky Cuius est solum, eius est usque ad coelum et ad inferos. The king's subjects, moreover, are no longer content to remain on a par with the king's deer. Yet infants will follow their childish instincts as naturally as the vagrant wind rustles the leaves of the trees. It is with respect to these children that we now ask this fundamental question: To what degree does the landowner still wear the feudal mantle of special privilege, exempting him from the ordinary rules of negligence when children (yes, trespassing children) are known to frequent land upon which he is carrying on an enterprise hazardous to them? Can he simply say, "They are trespassers" and continue as if they were not there? Can a landowner blindly throw the firing lever and explode blasting charges in a vacant lot that, to his knowledge, is used daily as a playground by (trespassing) neighborhood children? Or, paraphrasing Professor James in 63 Yale L.J., 144, 182, does a landowner's right of exclusive possession carry with it the privilege to engage in conduct fraught with unreasonable probability of harm to the lives and limbs of infants merely because there is no consent to their presence?

Special immunity

The early law we have seen. As the years have passed, however, the doctrine of the special immunity of landowners, particularly with respect to trespassing children, has been subjected to persistent erosion. The courts have increasingly abandoned the position that: "There is no more lawless class than children, and none more annoyingly resent an attempt to prevent their trespass," (Ryan v.Towar, 1901, 128 Mich. 463, 466, 87 N.W. 644, 645, 55 L.R.A. 310), in favor of the position that, "We are clothed with a trusteeship as to the care for those of tender years" (John son V. Wood, 1945, 155 Fla. 753, 21 So.2d 353, 355). We now, in most states, if not all, recognize that the rights of landowners are not absolute but are relative. Modern law represents an adjustment of conflicting interests. The landowner's right of exclusive occupancy is one factor. It is of great importance, both economically and socially. But does this give him an exemption from a citizen's ordinary duty to so conduct himself as not to subject others to unreasonable risk of harm? We must weigh against the ancient exclusive rights of the landowner the known fact (among others) that although urban children live, physically, in a world in which the stream of traffic has replaced the stream of water, and concrete and asphalt the pasture and meadow, men tally theirs is still a world of fiction and fantasy. Theirs, we know also, is a world in which property rights, either personal or real, are obscure, and in which the trespass is the norm. These things we cannot change. They are existing facts, as concrete as the play ground itself, and the law must take them into account. Thus it was that Mr. Chief Justice Cooley, in an opinion (Powers v.

Harlow, 53 Mich. 507, 515, 19 N.W. 257, 260) ante-dating by many years Ryan v. Towar, supra, held that:

"Children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution towards them must calculate upon this, and take precautions accordingly. If they leave ex posed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken,"

These citations could be amplified many-fold. They are all expressive of the overriding and incontestable principle that the right of a child to life, and life un-maimed, outweighs the land owner's right to the exclusive possession of his property. That is to say, the fact that the child is a trespasser does not now relieve the owner of the duty to use reasonable care, and the scope of the liability imposed where children are apt to trespass is to be measured by the magnitude of the danger to the child.

We have mentioned, but we have not emphasized, the distinction between an injury arising from a condition of the premises and one arising from affirmative dangerous conduct by the owner. While many cases are clear, there are many others so ambiguous as to make any attempt at hard and fast categories both futile and provocative of endless litigation. Thus a landowner removes an artificial barrier to a natural danger. Does a resultant injury to a trespassing child arise from the condition of the premises, or from the active intervention of the owner? The general concept of negligence is sufficiently broad to cover either case, in fact to be applicable to the infinite varieties of situations that may arise. In the interests of accuracy, it should be pointed out that the case before us does not involve injury from the mere physical condition of the premises, whether natural or artificial, and hence many of the cases cited by the city against recovery (e.g., Hargreaves v.Deacon, 25 Mich, i; Graves v. Dachille, 328 Mich. 69, 43 N.W.2d 64) are not precedent for the situation before us. Here we have injury from dangerous activities conducted in a limited area which trespassers in general are known to frequent. In this situation the Restatement of the Law of Torts, § 334, well states the preferable and modern principle of law, with which we are impelled to agree:

"A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety."

With respect to the city's posting of signs, and its alleged evictions of trespassing children from the premises, the following comment upon the above section is enlightening:

"Thus, it is not enough that the possessor has posted notices to the effect that trespass is not permitted' or that 'trespassers will be prosecuted,' if he knows or has reason to know that such notices are disregarded either as a matter of general custom or at the particular place. If the steps taken by the possessor, no matter how reasonable when taken, prove to his knowledge ineffective, he is required to take into account the probable presence of trespassers within such area and to conduct his activities with reasonable regard for their safety."

The criterion for the imposition of liability in this situation, then, is the probability of presence, and if this is not actually reduced by the owner's signs, or other efforts, it must be taken into account in judging the reasonableness of his conduct.

The case is remanded to the trial court with directions to set aside the judgment in defendants' favor and to enter a judgment in accordance with the verdict of the jury.