A New Jersey state appeals court has affirmed a lower court’s summary judgment ruling against a woman who slipped and fell down an embankment as she tried to get to a concession stand during a youth football game.
In ruling for defendants Township of Bridgewater (Bridgewater) and the Bridgewater Football League (BFL), the court found that the embankment was “part of an approved plan or design,” triggering immunity for the municipality and that the BFL “did not have authority or control over site of the injury or actual knowledge of any unsafe condition.”
The incident occurred on September 22, 2007 at Harry Ally Memorial Park. Plaintiff Joan M. Kenny came to the park that day with her five-year-old son, two daughters and husband Timothy Kenny.
Because her son was scheduled to play for one of the league’s flag football teams on the upper field, the plaintiff had volunteered to help at the Snack Shack, a concession stand. “She left her family on the upper field and proceeded toward the Snack Shack on the lower field,” wrote the court. “She took two steps off the upper field path onto the sloped embankment, which was wet from morning dew, when she slid back and suddenly was ‘in excruciating pain lying on the ground.’ The plaintiff received emergency medical care and was immediately taken to the hospital for additional treatment for serious injuries.”
Kenny and her husband sued the city and BFL, a nonprofit educational organization that ran a youth football league and held games in the park for two months every year as authorized by a facilities permit issued by Bridgewater. While the permit allowed the BFL to use the park for practice and Saturday games, the league had no responsibility for maintenance of the park, according to the appeals court.
The BFL also operated the Snack Shack, where it sold food and drinks from a mobile trailer during the Saturday football games to raise money for the league. Everyone who worked at the Snack Shack was a volunteer and generally a parent of children playing in the league. Bridgewater determined the location of the mobile concession stand, which was largely dictated by the availability of electricity for the trailer.
Harry Ally, a large municipal recreational facility with tennis and basketball courts, was owned, operated, controlled, and maintained by Bridgewater. Of import to this case, there were two multi-purpose athletic fields, the westerly or upper field, separated from the easterly or lower field along its entire length by a pathway and an embankment. In order to get from the upper field to the lower field, members of the public could walk down the embankment, or could avoid traversing the grassy slope by taking a longer route around the field. On the day of the incident, the Snack Shack was located on the lower field on level land near the steepest part of the embankment.
Bridgewater developed Harry Ally in 1977 in accordance with design plans duly approved by the Town Council and the New Jersey Department of Environmental Protection. The original plans, dated April 29, 1976, contained grading designs to address drainage issues and included the graded embankment area between the two athletic fields. The grading design has remained unchanged since the original construction and was consistent with the original site plans. Bridgewater was unaware of any prior injuries on the embankment or of any complaints by members of the public that the embankment created a dangerous condition.
In his report, plaintiff’s expert engineer, Len McCuen, P.E., opined that while there was nothing inherently wrong with the embankment, the placement of the concession stand on the lower field enticed people to walk toward it from the upper field, causing the embankment to become a walkway or ramp that did not meet the construction codes for such structures. In his opinion, plaintiff fell due to the steepness of the slope of the nearby embankment. He also noted that the steepest part of the embankment near the concession stand had a slope of 30 degrees, which constituted a walkway hazard. He concluded that the use of the embankment as a means of access to the concession stand created a dangerous condition on public property that fell below accepted industry standards for similar recreational and commercial facilities and resulted in a risk of injury that was palpably unreasonable.
In response to the plaintiffs’ lawsuit, both defendants successfully moved for summary judgment.
“The trial judge found Bridgewater had immunity under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 14-4, because there was no evidence that the property was in a dangerous condition, and if a dangerous condition existed, there was no evidence that an employee’s negligence caused it or that the public entity had notice of the condition,” wrote the appeals court. “The judge also held that Bridgewater was entitled to plan or design immunity pursuant to N.J.S.A. 59:4-6. In the case of BFL, the judge held that the league had immunity under the New Jersey Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11, because the BFL was a non-profit corporation organized for educational purposes and plaintiff was a beneficiary of its works. Additionally, the judge found plaintiff had failed to demonstrate negligence by BFL, because the league owed no duty of care to plaintiff.”
The plaintiffs appealed.
The appeals court noted that the plaintiff “does not dispute that the Harry Ally plan, including the grading and location of the embankment, was duly approved. Nevertheless, plaintiff argues that plan or design immunity does not apply since the governing body’s approval of the embankment did not include a concession stand placed near the steepest part of its slope. We are not persuaded. We find that plan or design immunity attached to the embankment at the time of construction, and ‘no subsequent event or change of condition’ that may have made the design more dangerous should strip the town of this immunity. Manna v. State of N.J., 129 N.J. 341, 353, 609 A.2d 757 (1992).”
Generally, immunity is preserved even if the design presents a dangerous condition in light of a new context.
Further, “Bridgewater was entitled to plan or design immunity, and once that immunity attached, it trumped all issues of liability for the dangerous condition,” wrote the court citing Seals v. Cnty. of Morris, 210 N.J. 157, 180, 42 A.3d 157 (2012).
Turning to whether the plaintiff had demonstrated negligence on part of the BFL, the appeals court agreed “with the trial judge that … BFL did not owe plaintiff a duty of care. The BFL is a nonprofit youth football league that uses the park a few days per week for two months in the fall. The BFL did not design, construct, maintain or control the park, including the location and slope of the embankment that many people used daily to get from the upper field to the lower field. As the trial judge pointed out, the injury did not occur at or near the Snack Shack but a good distance away on the grassy embankment controlled by Bridgewater. There is no evidence that the BFL acted as an agent for Bridgewater or that the league had actual knowledge of a dangerous condition. Nor has plaintiff provided any evidence that the BFL should have known of an unsafe condition, especially since the public has used the embankment to travel between the upper and lower fields for over 30 years and the BFL has used it for two years without reports of injuries from walking across the slope. We conclude that considerations of fairness and public policy dictate that no duty be imposed here as the BFL did not have authority or control over site of the injury or actual knowledge of any unsafe condition.”
Joan M. Kenny And Timothy Kenny v. Bridgewater Golden Eagles, Township Of Bridgewater, Sup. Ct. N.J., App. Div.; DOCKET NO. A-3571-10T2, 2012 N.J. Super. Unpub. LEXIS 1890; 8/6/12
Attorneys of Record: (for appellants) Matthew P. Pietrowski argued the cause (Levinson Axelrod, P.A., attorneys; Tara L. Johnson, on the brief). (for respondents) Kelly A. Waters argued the cause (Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., attorneys; Susan Karlovich, on the brief).
