By John E. Tyrrell, Esq. and Michael E. Rosenthal, Esq. of Ricci Tyrrell Johnson & Grey
Baseball is America’s pastime, a sport woven into the fabric of our national culture. Yet, when the crack of a bat sounds on a baseball field owned by a public entity, a would-be plaintiff may strike out in his or her attempt at recovering for alleged negligence. A recent decision by the Appellate Division in New Jersey, Vannote v. Hous. Auth. of Hoboken, 2023 N.J. Super. Unpub. LEXIS 1789 (App.Div. 2023), is a prime example of the formidable hurdle that is the high burden placed on plaintiffs in establishing liability against public entities. This article delves into the collision of personal injury and a public entity’s responsibility, exploring the uphill battle plaintiffs face in proving fault on a legal diamond.
On a Sunday evening in August 2018, plaintiff Jeff Vannote (“Plaintiff”) swung and hit a softball in a men’s softball game at Mama Johnson Field in Hoboken, New Jersey. Id. at *2. As he attempted to slide into second base for a double, his right cleat was caught in a six-foot ripped seam in the artificial turf along the base path. Id. As a result, he sustained a fractured ankle. Id. He had played on the field at least four to six times before, during that season, and never noticed any issues with seams in the turf. Id. No other teammate or player had issues. Id. The field and turf were maintained by the City of Hoboken (“City”) and the Housing Authority of Hoboken (“Housing Authority”), both public entities. Id. at *2-3.
Plaintiff sued the City and the Housing Authority under the New Jersey Torts Claims Act, alleging that they failed to maintain the turf field in line with accepted industry standards related to proper maintenance of a synthetic turf surface and that such failure “created” the dangerous condition. Id. at *2-3. Plaintiff retained an expert who inspected the field more than two months after the incident occurred and authored an expert opinion.
The City and Housing Authority filed for summary judgment which the trial court granted, holding that Plaintiff failed to establish his burden under the New Jersey Tort Claims Act. Plaintiff appealed the trial court’s decision and argued that trial court misapplied the summary judgment standard and prevented issues of fact from reaching the jury.
The New Jersey Torts Claims Act (“NJTCA”) (N.J.S.A. 59:1-1, et seq.) is a statute that was implemented to afford heightened protection to “public entities” from lawsuits. In other words, under the NJTCA, immunity of public entities from tort liability is the general rule and liability is the exception. Id. at *13.
Thus, to impose liability on a public entity for an injury allegedly caused by a dangerous condition on public property, a plaintiff must establish the existence of:
- a “dangerous condition,”
- that the condition proximately caused the injury,
- that it “created a reasonably foreseeable risk of the kind of injury which was incurred,”
- that either (a) the dangerous condition was caused by a negligent employee or (b) the entity knew about the condition, and
- that the entity’s conduct was “palpably unreasonable.”
Id. at *12. (quoting Vincitore ex rel. Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 125 (2001) (quoting N.J.S.A. 59:4-2)). A failure to establish any of these elements precludes a plaintiff from bringing suit altogether.
In this case, the Vannote expert opined, “a palpably unreasonable condition existed” on the field, “due to defendants’ failure to inspect and monitor the field in accordance with industry standards,” which “caused plaintiff’s fall and subsequent injury.” Id. at *6. The expert also maintained that both the Housing Authority and the City “created the dangerous condition” by failing to maintain the field. Id. at *6-7. Unpersuaded, the Appellate Division called foul and affirmed the trial court’s disposition.
Plaintiff’s expert concluded based on his inspection of the field only that “the seam separation” in the area in which plaintiff was injured, “plus other areas of the infield, were there at the time of his injury.” Id. at *14. The expert, however, offered no facts to support his opinion, stating only that “[s]eams on a synthetic field should never be seen, much less separated and exposed to users of the field.” Id According to the Appellate Division, Plaintiff’s expert did not provide competent evidence, even viewed most favorably toward the plaintiff, which could survive a summary judgment motion. Id. at *13. Therefore, the expert’s report constituted a “bald conclusion” unsupported by any factual bases or logical or scientific rationale and was thus “insufficient to sustain plaintiff’s burden of establishing that the public entity was on constructive notice of a dangerous condition.” Id. (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583-84 (NJ 2012)).
The Appellate Division further rejected Plaintiff’s assertion that the City or Housing Authority somehow “created” the dangerous condition by “failing to inspect or maintain the field.” New Jersey case law is clear: “a public entity does not create a dangerous condition merely because it should have discovered and repaired it within a reasonable time before an accident,” as Plaintiff charged here. Id. at *14-15 (quoting Polzo II v. Cnty. of Essex, 209 N.J. 51, 67 (NJ 2012)). As Justice Albin explained in Polzo II, “[i]f failing to discover a dangerous defect on public property were the equivalent of creating the defect, the Legislature would have had no need to provide for liability based on actual or constructive notice.” Polzo II, 209 N.J. at 67-68 (citing N.J.S.A. 59:4-2(a) and (b)).
Plaintiff’s failure to establish that either the Housing Authority or the City had actual or constructive notice of the alleged dangerous condition of the field foreclosed any possibility of establishing a prima facie case against the municipal defendants. Vannote, 2023 N.J. Super. Unpub. LEXIS 1789 at *16. Even had Plaintiff been able to clear that hurdle, no facts in the motion record supported the notion that the public entity defendants’ inspection and maintenance of the field, performed through their employees and the City’s third-party contractor LandTek, was “palpably unreasonable” behavior — that is, behavior “patently unacceptable under any given circumstance,” making it “‘manifest and obvious that no prudent person would approve of its course of action or inaction.'” Id.
This case pitched a formidable challenge for the plaintiff, akin to facing a “Lord Charles” curveball from Dwight Gooden. Despite swinging for the fences, Plaintiff couldn’t quite hit the liability home run, as meeting the burden of proof proved to be a tough knuckleball. It is a reminder that in the legal game, just like in baseball, precision and strategy are essential. This plaintiff might not have hit a legal home run, but his journey serves as a coaching point of wisdom for counsel stepping up to the plate in defense of public entity defendants.
