Fore! Indiana Court of Appeals Holds Comparative Fault Does Not Reduce Liability for Intentional Torts in Recent Golf Ball Case

Indiana homeowners sometimes get into neighborly disputes, and sometimes those disputes end up in court. Unfortunately for Mitchell Schultz (“Schultz”), who year after year had thousands of golf balls fall into his property from an adjacent golf course, breaking windows and damaging his pool, a trial court found that, even though the golf course was trespassing, he was entitled to nothing under Indiana’s Comparative Fault Act because he knew about the golf balls when he took over the property deed. Fortunately for Schultz, he was able to appeal to the Indiana Court of Appeals, which established important precedent concerning “fault” in intentional tort cases.

Schultz grew up on his family-owned property next to Sandy Pines Golf Club (“Sandy Pines”) in Wheatfield, Indiana. His family owned the property for over 50 years. After moving away, Schultz returned in 2008 to take care of his aging mother. In 2018, Sandy Pines added a driving range, and thereafter thousands of golf balls began falling onto the property. Schultz had to park his car at the far end of the driveway and sit under a tent when in the backyard to avoid the falling golf balls. While Schultz complained to Sandy Pines and Sandy Pines took some steps to alleviate the situation, golf balls continued to regularly fall onto the property. In 2020, Schultz’s mother transferred title to the property to Schultz so that he would have clear legal standing to sue.

Schultz filed a lawsuit against Sandy Pines for negligent design, nuisance, and trespass. The trial court entered summary judgment in favor of Sandy Pines on Schultz’s negligent design and nuisance claims. As to his nuisance claim, the trial court applied the doctrine of “coming to the nuisance,” since Schultz took title to the property knowing golf balls landed on it. Since Indiana law does not have a similar “coming to the trespass” doctrine, however, the trial court held a bench trial with respect to Schultz’s trespass claim. The trial court found the thousands of golf balls falling onto Schultz’s property constituted trespass by Sandy Pines. However, the trial court found that Schultz was 95% at fault and incurred the risk of trespass by taking title to the property with knowledge of the golf balls, and therefore, based upon Indiana’s Comparative Fault Act, was entitled to nothing. Schultz thereafter appealed the trial court’s decision as to his comparative fault.  

Indiana’s Comparative Fault Act, with limited exceptions, applies to “any action based on fault that is brought to recover damages for injury or death to a person or harm to property.” Ind. Code §§ 34-51-2-1, 2-2. As to the Act, “fault” is defined as “any act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others,” and includes “unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages.” Ind. Code § 34-6-2.1-68(b). The Comparative Fault Act provides for proportionate damages based on relative degrees of causation attributable to the responsible actors, and it bars recovery if the claimant’s fault “is greater than the fault of all persons who contributed to the injury.” Ind. Code §§ 34-51-2-5, 2-6.

On appeal the Indiana Court of Appeals distinguished intentional torts, such as trespass, from torts based on negligence. While three elements must be proven in negligence claims (duty, breach, and damages caused by the breach), with the required standard of care varying depending on the circumstances, intentional torts are not a matter of degree or circumstance. Intentional torts instead focus exclusively on whether the defendant intentionally committed a wrongful act, where the intentional wrongful conduct itself constitutes the injury. The Court noted that in trespass cases, for instance, “the unauthorized entry itself is the invasion of property rights” that establishes the tort. Additionally, the Court noted differences in moral culpability between negligence and intentional torts. 

After reviewing Indiana law, including prior precedent and Indiana’s Comparative Fault Act, the Court ruled that, while negligent and intentional acts can both be considered in comparative fault analysis in negligence cases, such analysis does not apply in cases of intentional torts to reduce liability for intentional torts. The Court reasoned that in intentional tort cases “there is no such thing as acting 20% intentionally” and the intentional conduct itself “wholly constitutes the injury,” leaving no one else (other than perhaps joint intentional tortfeasors) to contribute to the harm. Finding fault allocation under the Comparative Fault Act “conceptually incompatible with the nature of intentional torts,” the Court reaffirmed prior precedent that in cases of intentional torts the plaintiff cannot be assigned fault, and the defendant is 100% liable for the intentional tort. 

Applying its analysis to the facts of this case, the Indiana Court of Appeals found the trial court erred when it engaged in fault allocation after finding Sandy Pines liable for trespass. According to the Court, Sandy Pines should have remained 100% liable for the tort of trespass. The trial court could then have addressed any failure to mitigate damages by Schultz, which is a separate inquiry. As noted by the Court, comparative fault “concerns who caused the injury and allocates responsibility” to those contributing to the harm, whereas mitigation of damages “concerns the victim’s conduct after the tort occurs and affects only the amount of damages,” not liability. A claimant’s post-tort conduct, like failing to limit the extent of harm, may reduce damages, but that conduct does not reduce or shift liability for the tort. Accordingly, the Court reversed and remanded for additional proceedings with respect to Schultz’s damages for trespass and any failure to mitigate.

You can read the full opinion here.