A New Jersey state appeals court affirmed the ruling of a trial court that found that a school district should be held liable for the injuries sustained by a spectator who was attending a high school baseball game. In so ruling, the appeals court found that the plaintiff had failed to show that the field was in a dangerous enough condition to establish liability.
The incident occurred after plaintiff Linda Brigante went to Tenafly High School to watch her son’s freshman baseball game. As she sat in the bleachers during the warmup, she was struck on the left side of her face by an errant ball thrown by Tenafly’s second baseman. The bleachers were along the first base line.
After the plaintiff sued, the parties agreed that there was no elevated protective fencing or warnings posted about the dangers of being hit by a baseball. The plaintiff went on to provide a report from an expert who opined that the field’s fencing was inadequate, and that there was no designated warm-up area and no posted warnings, all of which violated the standard of care.
The Tenafly Board of Education moved for summary judgment, arguing that the plaintiff’s expert had provided “nothing more than a net opinion and that the plaintiff could not establish a prima facie case.” The trial court agreed, noting that the plaintiff “had not made out a prima facie case because the plaintiff’s expert had failed to establish that the Board’s conduct was palpably unreasonable.”
The plaintiff appealed.
In its review, the appeals court cited Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 125, 777 A.2d 9 (2001) for the following proposition: “To impose liability on a public entity pursuant to that section, 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 the dangerous condition was caused by a negligent employee or the entity knew about the condition, and that the entity’s conduct was ‘palpably unreasonable.’”
The Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, defines a “dangerous condition” as “a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” N.J.S.A. 59:4-1(a). “Thus the standard is whether any member of the general public who foreseeably may use the property would be exposed to the risk created by the alleged dangerous condition.” Vincitore, supra, 169 N.J. at 125.
The plaintiff’s expert “claimed that the lack of elevated protective fencing or posted warnings created the dangerous condition which resulted in the foreseeable injury the plaintiff suffered. The expert, however, failed to identify an objective standard for when a ball field is dangerous for purposes of the Tort Claims Act.”
The court found other flaws in the report.
“In addition to relying on unidentified standards found on the Internet, the report itself is internally inconsistent, providing in one place that the standard is an 8-foot fence and in another that 10 feet is required,” it wrote. “The record on the motion reveals that the only standards document actually identified, the Babe Ruth league facilities guide, contains a prominent disclaimer that ‘Babe Ruth League, Inc. does not require or demand the following guidelines be followed. The guidelines serve only as recommendations for participating leagues, entities and hosts of Babe Ruth League, Inc. competitions.’
“The expert provides no evidence that the Babe Ruth league recommendations for fencing, which he nowhere identifies, establish an objective standard or have been adopted by other public entities. Further, no reference is made to the league to which defendant belongs, the New Jersey State Interscholastic Athletic Association, or the national federation of which it is a member. The Supreme Court has recently rejected an expert’s proffer of a similar nebulous guide as an appropriate standard for determining when a roadway defect is dangerous for purposes of the Tort Claims Act. See Polzo v. Cnty. of Essex (Polzo II), 209 N.J. 51, 68, n.8, 35 A.3d 653 (2012).
“Because the expert’s conclusions are not supported by factual evidence or other data, the ‘net opinion’ rule forbids admission of the report. Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 79, 935 A.2d 1236 (App. Div. 2007). Plaintiff thus is unable to carry her prima facie burden of establishing that the ball field was in a dangerous condition and that the failure to protect plaintiff from the second baseman’s errant throw was palpably unreasonable. Accordingly, we agree that summary judgment was properly granted.”
Linda Brigante and Michael Brigante, her husband v. Tenafly Board of Education et al.; Super.Ct.N.J., App. Div.; DOCKET NO. A-0279-13T3, 2014 N.J. Super. Unpub. LEXIS 2779; 11/25/14
Attorneys of Record: Rubenstein, Meyerson, Fox, Mancinelli, Conte & Bern, P.A., attorneys for appellants (Robert J. Mancinelli, of counsel; Andrew P. Bolson, on the brief). Zirulnik, Sherlock & Demille, attorneys for respondent (Michael O’Hara, on the brief).
