LINDA BRIGANTE v. TENAFLY BOARD OF EDUCATION

FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LINDA BRIGANTE and

MICHAEL BRIGANTE, her husband,

Plaintiffs-Appellants,

v.

TENAFLY BOARD OF EDUCATION,

Defendant-Respondent,

and

BOROUGH OF TENAFLY,

Defendant.

___________________________________

November 25, 2014

Submitted July 30, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket

No. L-844-12.

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).

PER CURIAM

In this Title 59 matter, plaintiff Linda Brigante1 appeals from the entry of summary judgment dismissing her complaint against defendant Tenafly Board of Education.2 We affirm.

Plaintiff went to Tenafly High School to watch her son's freshman baseball game. As she sat in the bleachers during the warm-up, 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 baseline. The parties agree there was no elevated protective fencing or warnings posted about the dangers of being hit by a baseball. Plaintiff supplied a report from an expert who opined that the field's fencing was inadequate, there was no designated warm-up area and no posted warnings, all of which violated the standard of care.

Defendant moved for summary judgment contending that plaintiff's expert had provided nothing more than a net opinion and that plaintiff could not establish a prima facie case. The Law Division judge agreed that plaintiff had not made out a prima facie case because plaintiff's expert had failed to establish that the Board's conduct was palpably unreasonable.

Plaintiff contends that the judge erred and that the question of whether the Board's conduct was palpably unreasonable was one for the jury on this record. We disagree.

We review summary judgment using the same standard that governs the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). Thus, we consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)).

N.J.S.A. 59:4-2 addresses a dangerous condition of public property and provides as follows

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either

a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.

Thus "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.'"3 Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 125 (2001).

As defendant does not dispute that plaintiff was injured by the wild throw, the focus on the motion was whether the ball field was in a dangerous condition and, if so, whether the failure to correct it was palpably unreasonable. The Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, defines "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. 59:4-1a. "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.

Plaintiff's expert claims that the lack of elevated protective fencing or posted warnings created the dangerous condition which resulted in the foreseeable injury 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 expert averred that his opinion was "based upon a standard of care within the State of New Jersey and throughout the United States." He explained

Each league has their written standards or basic standard of care that is taught to the coaches who, in turn, teach the protocol to safely warm up in a safe area away from the spectators section. There are numerous protocols and standards found on the Internet. It also derives from many factors including what is customary in youth recreational activities and safety based upon my 40 years of experience; my experience in observing and participating in the implementation of safety programs and what other similar baseball teams do on its home field. It should be noted that there was no protection where the spectators were sitting. If there was no protection with a high fence, no one should have been allowed to observe the warm up or the game from that area.

. . . .

Coaches' Guides is another factor involved in the standard of care with respect with player supervision and consideration of spectator safety. . . . Again, coaches' guides for safe play and warm up are listed throughout the Internet.

. . . .

The opinion of the undersigned as to the basic standard of care owed by the coach of [the] Tenafly Baseball Team, the Tenafly Board of Education is based on compromised, unwritten and written factors. This is what the undersigned has been involved with for over 40 years. All of the defendants knew or should have known, even though there are known protocols as referred to in this case, that no invitee should ever be provided bleachers to observe a game without proper protection. . . .

The standard of care as to the coach of the Tenafly Baseball Team, Tenafly Board of Education and the school's athletic director with respect to the inadequate fencing, undesignated warm-up areas and lack of warnings is partially based on written standards regarding fence height, distance from the foul line during warm-up, is derived from the league planning guides published and distributed by reputable leagues such as the Babe Ruth league throughout the United States. It is also based on other safety factors and considerations about which I have over 40 years of experience. In my opinion, it does not matter if any of the defendants or County ever[] received copies of the Babe Ruth league facilities guide, which is readily available, or not. The fact is that the defendants have been on notice for well over 20 years that this guide was available and the standard of care to be followed as well. The undersigned considers the guide along with other written and unwritten considerations as forming the basis of my opinion that the Tenafly Board of Education's failure to adhere [to] these recognized safety standards was the cause of [plaintiff's] permanent injuries.

. . . .

The spectator fence must be located where spectators congregate to watch the game in front of the bleachers having an 8 foot height or of a sufficient height to protect spectators at the highest point of the bleachers. The defendants failed to meet this basic standard of care. . . .

An additional standard of care required by leagues throughout the United States is that areas for spectators must be clearly marked and are not seated or allowed to stand in dangerous areas adjacent to the baseball field. The spectators must also be provided with adequate protection from flying objects and players are not allowed to throw or warm-up near spectators. The defendants failed to meet any of these basic standards of care and the safe protocol that is used throughout New Jersey and the United States.

. . . .

The defendants were aware that the failure to install adequate protective fencing for the safety to spectators was contrary to all safety protocols set forth in baseball and softball leagues, high schools and junior high schools throughout the United States.

. . . .

It is the opinion of the undersigned, the only way to eliminate the hidden danger [to plaintiff being hit by a ball in the warm-up] was to either install a high fence in front of the designated stands or relocate the designated stands behind a pre-existing fence, if there was one, along the first base line and the height of the fence to at least 10 feet which conform to all of the other ball fields in school districts throughout New Jersey and the United States.

. . . .

The Tenafly coach and the school's athletic director did not follow any safety protocol that is the standard of care published by every baseball league manual throughout New Jersey and the United States. The defective and dangerous design of the low fencing along the first base line and/or the non- existing fencing adjacent to the bleachers placed [plaintiff] in a location where errant ball throwing during warm-up created that hidden danger.

Although the expert's opinion is lengthy, it is patently clear that he never identifies an actual standard for when a ball field is dangerous for purposes of the Tort Claims Act. 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. 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 (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 (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.4

Affirmed.

1 Linda Brigante's husband, Michael Brigante, sued per quod. We refer to Linda Brigante as plaintiff here.

2 Plaintiff voluntarily dismissed her complaint against defendant Borough of Tenafly.

3 Although the parties debated the point before the trial court, the law is well settled that it is the plaintiff's burden to prove that the entity's conduct was palpably unreasonable as part of a prima facie case. Muhammad v. N.J. Transit, 176 N.J. 185, 195 (2003).

4 Plaintiff's remaining argument, that the matter is controlled by the "limited duty rule" announced in Maisonave v. Newark Bears Prof'l Baseball Club, Inc., 185 N.J. 70 (2005), is without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E).