DANIEL G. DUNCAN v. SOMERSET PATRIOTS BASEBALL CLUB

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4279-08T34279-08T3

DANIEL G. DUNCAN and

ARLENE B. DUNCAN,

Plaintiffs-Appellants,

v.

SOMERSET PATRIOTS BASEBALL

CLUB,

Defendant-Respondent.

________________________________________________________________

 

Argued February 1, 2010 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1598-07.

Jerrold Kamensky argued the cause for appellants (Kamensky Cohen & Associates, attorneys; Mr. Kamensky and Kristin Teufel, on the briefs).

Timothy P. Beck argued the cause for respondent (DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, P.C., attorneys; Mr. Beck, on the brief).

PER CURIAM

Plaintiff, Daniel Duncan, appeals from a summary judgment dismissing his personal injury complaint. He attended a minor league baseball game at the field of defendant Somerset Patriots Baseball Club, L.L.C., and signed up for one of the promotions conducted between innings. The event was a three-legged race, at the commencement of which plaintiff slipped and fell and was injured. He contended that defendant was negligent in failing to maintain the premises in a safe condition and that defendant breached its duty to warn him of the risks inherent in the race under all of the attendant circumstances. The trial judge rejected those arguments and, finding the existence of no genuine dispute as to any material fact, granted summary judgment in favor of defendant. On appeal, plaintiff repeats the same arguments and further argues that the trial court failed to adequately express its findings of fact and law as required by Rule 1:7-4. We reject plaintiff's arguments and affirm.

On the evening of August 5, 2006, plaintiff, accompanied by his wife and their son, attended a Somerset Patriots baseball game. The game was scheduled to begin at 7:05 p.m. The weather was clear.

The Patriots typically hold promotional events between innings. Fans are given the opportunity to sign up if they wish to participate. Names of those who have signed up are then randomly chosen to participate in the selected events. On August 5, 2006, twenty-nine different promotions were scheduled to take place between innings. Fourteen of those were open to voluntary fan participation.

Plaintiff had previously attended Patriots games, about twice per season. He had previously signed up to participate in events, but had never been selected. On August 5, 2006, plaintiff signed up for the "Flemington Department Store Best Seat in the House Event," the "Monmouth Park Horse Race," the "Dominoes Attendance Guess," the "Pie Eating Contest," and the "Applebee's Shell Game." Sign-ups for participation occurred at a table located in a common hallway area of the baseball park. Although that table was not staffed, it was located immediately next to the customer service desk, which was staffed. Employees at the customer service desk were available to answer questions regarding the events, and the record reflects that they did so that evening when inquiries were made. Plaintiff did not ask any questions.

The format of the "Monmouth Park Horse Race" promotion changed over the years. Based on his experiences at previous games, plaintiff expressed his recollection that the event participants carried horse flags on the field, and they would move forward based upon the results of a random number generator that would sequentially specify such movement. The event organizer acknowledged that the horse race had been conducted in accordance with plaintiff's recollection in 2003. However, after the 2003 season and into the beginning of the 2006 season, the format changed to one in which participants dressed in inflatable horse costumes and engaged in a foot race around the edge of the infield. Then, the format changed again for the remainder of the 2006 season to a three-legged race, which other minor league teams in the area utilized.

Therefore, when plaintiff signed up for this event prior to the game, he was under the impression that no physical activity would be involved, notwithstanding the designation of the event as a "race." As defendant points out, of the fourteen fan participation events that evening, four were identified as "races" (the Monmouth Park Horse Race, the Cotton Candy Potato Sack Race, the Re/Max Dizzy Bat Race, and the Lukoil Remote Control Truck Race) and another was identified as a "dash" (the Quick Chek Sparkee Dash).

In the middle of the first inning, four names, including plaintiff's, were announced over the public address system as individuals chosen for the horse race. As instructed, those four individuals reported to the area of the customer service desk and sign-up table. They were greeted by Patriots employees and taken down to the field level. An employee explained that this would be a three-legged race, with two pairs of participants, which would begin when the inning was concluded.

The four individuals were asked if they had preferences as to teams. All four said they did not. An employee asked the participants if they understood the nature of the event and asked if they had any questions. One of the participants inquired about the length of the race, to which an employee responded that it would be between home plate and first base. Each pair was given a horse head to carry and a bandanna to be used to tie their legs together. The record reflects that the various participants and witnesses said that between five and fifteen minutes elapsed between when all of this was explained to the participants and when the race began. Although any of the participants could have decided not to participate after the details were explained to them, they all chose to participate.

As plaintiff and his partner prepared for the beginning of the race, they discussed their strategy. They agreed that each would take their first step with their free leg. When the signal was given to begin, plaintiff did so, but his foot slipped out from under him and he fell, injuring his knee. Plaintiff weighed about 340 pounds. He described his partner as a "taller lanky-type person," weighing about 160 pounds. In his deposition testimony, plaintiff acknowledged that shortly before this evening he had participated in a three-legged race with his son at a boy scout camp. He did so uneventfully. It appears that his son's weight was less than the weight of plaintiff's partner at the ball park on August 5, 2006.

In answer to an interrogatory asking plaintiff to detail his version of the accident, setting forth the date, location, time and weather, plaintiff included a statement that his "foot slipped sideways on the wet grass, resulting in the fall that injured [him]." However, when he was later deposed, plaintiff was asked the following question: "Now, when you fell, did you notice any specific feature of the ground that you had fallen on? In other words, was it thick grass, was it wet grass, was it sandy?" He answered: "No, I wasn't focused on that. I was actually focused on my foot at the time." All other participants in the race testified that the grass was dry. There was evidence that on particularly hot days, in addition to watering the field earlier in the day, the grounds crew sometimes watered down the infield area before the start of the game, and plaintiff's wife testified that she observed this pre-game spraying on this evening. However, every other witness said the grass was dry. Plaintiff points to no other alleged defect, such as unevenness, a depression, or the like.

Considering all of these facts and circumstances, the trial court first concluded that as an invitee, the property owner owed plaintiff "a duty to conduct a reasonable inspection to discover any latent dangerous conditions." The court found it "clear from the record that the field and surrounding surfaces were consistently maintained by professional grounds keeper and crew . . . , no one else fell, it was not wet and there was not a defective condition." The court therefore found there was no dangerous condition on the premises. As to plaintiff's argument that he was not given adequate notice of the specific nature of the race and that defendant breached its duty to warn him of the attendant risks of such an activity, the court noted "that the plaintiff had recently completed such a race with his son," "that the promotion between inning events was completely voluntarily [sic]," and that "[a]lthough the plaintiff asserts that he did not specifically sign up for a three-legged race and was not aware that he was participating in it until minutes before it commenced, he still had time to pull out of that race."

A motion for summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). In deciding on the motion, the trial court must grant all favorable inferences of fact to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995). On this basis, the court must decide whether the evidential materials "are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Id. at 540. If instead "the evidence 'is so one-sided that one party must prevail as a matter of law,'" such that "there exists a single, unavoidable resolution of the alleged disputed issue of fact" the court should "not hesitate to grant summary judgment." Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). An appellate court applies the same standard as the trial court upon review of a grant or denial of summary judgment. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

We first consider whether plaintiff's argument that the premises were defective because the grass was allegedly wet raises a genuine issue of material fact that required a trial. Our analysis requires a comparison of plaintiff's interrogatory answer to his subsequent deposition testimony. In his interrogatory answer, he referred to the surface on which he slipped as "the wet grass." However, when later asked whether he noticed any particular condition of the ground upon which he had fallen, and was specifically asked whether it was "wet grass," plaintiff answered "No," saying he wasn't focused on any characteristics of the ground, such as wetness. Therefore, when expressly asked what he observed, he said he did not observe wetness.

This more specific description was fact-based, deriving from plaintiff's own observations as he was physically on the surface where he fell. The earlier interrogatory answer, by comparison, was a general and conclusory statement. We liken this situation to the "sham affidavit" doctrine, under which a genuine factual issue cannot be created by an affidavit contradicting the affiant's deposition, unless the contradiction is plausibly explained. See Shelcusky v. Garjulio, 172 N.J. 185, 200-02 (2002); see also Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999) (holding that bare conclusions in pleadings, without factual support and affidavits, cannot defeat a motion for summary judgment). Applying these principles, we agree with the trial court that plaintiff failed to make a prima facie showing, based upon competent evidence, that the grass was wet.

We next turn to whether defendant had a duty to warn plaintiff of the risks associated with participation in a three-legged race. Plaintiff raises several issues in this regard. He first argues that he should have been advised before he signed up that this would be a three-legged race, and the late notice, five to fifteen minutes before the race began, was insufficient to enable him to decide not to participate. He further argues that being paired with someone half his weight increased the risk of injury, and this should have been explained to him. He argues that his own excessive weight was a factor that should have either caused defendant to exclude him from participation in this event or, at the very least, explain that it created a greater risk of injury. He also argues that defendant should have either provided suitable footwear or warned him that without some sort of cleats or turf shoes there would be a greater danger of falling.

Traditionally, courts have had the responsibility to determine the scope of tort liability. Kelly v. Gwinnell, 96 N.J. 538, 552 (1984). Thus, the issue of whether a defendant owes a legal duty, as well as the scope of the duty owed, are questions of law for the court to decide. Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996); Kelly, supra, 96 N.J. at 552. "The imposition of a duty to exercise care to avoid a risk of harm to another involves considerations of fairness and public policy implicating many factors." Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 401 (2006) (citing Carvalho, supra, 143 N.J. at 572). This inquiry has been described as one that "turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993) (citing Goldberg v. Hous. Auth., 38 N.J. 578, 583 (1962)).

Historically, the common law approach to landowner or occupier tort liability was based on the right of the person injured to be on the land. Id. at 433. The duty of the owner or occupier was determined according to whether the victim was classified as a business invitee, a licensee, or a trespasser. Ibid. In Hopkins, the Court laid out the different standards, stating that

[a]n owner or possessor of property owes a higher degree of care to the business invitee because that person has been invited on the premises for purposes of the owner that often are commercial or business related. A lesser degree of care is owed to a social guest or licensee, whose purposes for being on the land may be personal as well as for the owner's benefit. The owner owes a minimal degree of care to a trespasser, who has no privilege to be on the land.

[Ibid.]

With regard to the duty owed to an invitee or a business guest, the Court provided that "a landowner owe[s] a duty of reasonable care to guard against any dangerous conditions on his or her property that the owner either knows about or should have discovered. That standard of care encompasses the duty to conduct a reasonable inspection to discover latent dangerous conditions." Id. at 434 (citing Handleman v. Cox, 39 N.J. 95, 111 (1963); Restatement (Second) of Torts 343 (1969)).

However, in furtherance of fairness and justice, premises liability should no longer be rigidly based on the traditional common law classifications of the status of the entrant. Olivo, supra, 186 N.J. at 401 (citing Hopkins, supra, 132 N.J. at 435-438). In determining that a real estate broker had a duty of care with regard to a dangerous condition on property displayed to prospective buyers through an open house, the Court explained that the inquiry should be "whether in light of the actual relationship between the parties under all of the surrounding circumstances the imposition . . . of a general duty to exercise reasonable care in preventing foreseeable harm . . . is fair and just." Hopkins, supra, 132 N.J. at 438.

This holding introduced flexibility into premises liability, and ever since, "the traditional common law classifications have been applied with pliancy 'to avoid foreseeable harm to others.'" Olivo, supra, 186 N.J. at 402 (quoting Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 508 (1996)). Foreseeability has been determined to be relevant to the question of whether a duty of care is owed to another, and is considered "a crucial element in determining whether imposition of a duty on an alleged tortfeasor is appropriate." Carvalho, supra, 143 N.J. at 572-73 (quoting Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194 (1994)); Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502-03 (1997). Once the foreseeability of harm has been shown, "considerations of fairness and policy govern whether the imposition of a duty is warranted." Olivo, supra, 186 N.J. at 403 (citing Carter Lincoln-Mercury, supra, 135 N.J. at 194-95).

In using the concept of foreseeability to determine the existence of a duty, a court should assess "'the knowledge of the risk of injury to be apprehended. The risk reasonably to be perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of injury to another person, that is taken into account in determining the existence of the duty to exercise care.'" Clohesy, supra, 149 N.J. at 503 (quoting Hill v. Yaskin, 75 N.J. 139, 144 (1977)). After foreseeability is established, the determination as to whether imposing a duty is fair "'involves identifying, weighing, and balancing several factors - the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.'" Carvalho, supra, 143 N.J. at 573 (quoting Hopkins, supra, 132 N.J. at 439).

Generally, business owners "should be liable for foreseeable injuries that occur on their premises." Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 517 (1997). The logic behind this rule is that such defendants possess ownership and control of the premises, and therefore "are in the best position to control the risk of harm." Ibid. In this regard, plaintiff relies heavily on Butler v. Acme Markets, Inc., 89 N.J. 270 (1982), in which the Court held that the owner of a supermarket could be liable to a customer who was mugged in the supermarket's parking lot. In that case, seven muggings had taken place in the parking lot over the preceding year, with five occurring in the evenings during the prior four months. Id. at 274. The Court held that the market had a duty to protect the customer from foreseeable criminal activity. Id. at 284.

The Court noted that, as part of this duty, a business owner could be required to provide warnings to its patrons as to the existence of such foreseeable dangers. Ibid. In support of this proposition, the Court cited the Restatement (Second) of Torts, 344, which provides that a business owner could be liable to his patrons

for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

[Butler, supra, 89 N.J. at 280 (quoting Restatement (Second) of Torts 344 (1965)).]

Due to its status as a business invitor, the Court determined that the defendant was in the best position to provide such warnings. Id. at 284.

A critical underpinning of the Butler rationale, however, was that the property owner was on notice of the danger of muggings to its patrons because of the frequent muggings that occurred in the recent past, but that the plaintiff "was unaware of the previous muggings on the premises." Id. at 274. Thus, although the risk did not arise from the physical condition of the premises, the risk to an invitee was something that was known to the property owner but not to the invitee. In this sense, imposition of a duty to prevent muggings by providing adequate security or to warn patrons of the risk is similar to the traditional duty of a business owner to make reasonable inspection to discover and correct or warn of latent defects in the premises. A latent defect, of course, is one that would not be readily observed and thus would be unknown to the typical invitee. The situation is the same with respect to the high incidence of criminal activity, known to the proprietor, but unknown to invitees.

But that is not the case here. Any risks inherent in a three-legged race were not something known to the proprietor but unknown to the participant. As the trial court noted, plaintiff knew what a three-legged race was and he had recently participated in one with his son at boy scout camp. A photograph in the record shows the father and son, clearly indicating that the son is a youngster who is much smaller than his father and probably smaller than plaintiff's partner in the three-legged race at the ballpark. Further, walking or running on grass is a common experience, and the risk of doing so with any particular kind of footwear is known equally by the participant and the property owner. Finally, although for summary judgment purposes we accept plaintiff's contention that he did not know initially he was signing up for a three-legged race, he was informed of all of the details before it began and was given an opportunity to withdraw from participation. When he did sign up, recognizing that a number of the events were designated as races or a dash, he could have inquired of the available personnel of defendant at the adjoining customer service desk if he had any concerns or questions about the activity for which he was signing up. He nevertheless chose to continue his voluntary participation.

In determining whether imposition of a duty is fair, we first consider the relationship of the parties. In this context, the significant characteristics are that defendant offered its patrons the opportunity to voluntarily participate in an activity that is commonplace, well-known to the average person, specifically well-known to plaintiff, and which does not involve an unusual risk of injury. In considering the relationship of the parties, it is also important to recognize that neither was in a superior position to understand and appreciate any risks involved in this voluntary activity. This brings us to the next factor, the nature of the attendant risk. As we have stated, the potential risk of injury is not great, the activity is commonplace, and, most importantly, any potential risks were as well-known to plaintiff as defendant. Both parties had the opportunity to exercise care in avoiding the risk. It is true that defendant could have provided the warnings and taken the measures plaintiff suggests, but it is equally true that plaintiff could have chosen to withdraw from his voluntary participation. Finally, we do not discern any public interest in the solution proposed by plaintiff. Considering these factors, we conclude that defendant did not have a duty to warn or to take other steps such as those suggested by plaintiff.

 
Affirmed.

Arlene Duncan, Daniel Duncan's wife, also sued per quod.

(continued)

(continued)

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A-4279-08T3

March 3, 2010