Submitted by personal injury attorney, Jeffrey Hark
36-2-5117 Brigante v. Tenafly Board of Education, App. Div. (per curiam) (10 pp.) In this Title 59 matter, plaintiff Linda Brigante appeals from the entry of summary judgment dismissing her complaint against defendant Tenafly Board of Education. Plaintiff went to Tenafly High School to watch her son’s 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 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 trial court 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. The appellate panel disagrees. 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. Because the expert’s conclusions are not supported by factual evidence or other data, the “net opinion” rule forbids admission of the report. 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 errant throw was palpably unreasonable. Summary judgment was properly
THE SPECIFIC CONVERSATION WAS AS FOLLOWS:
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 theTort 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 g8 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 withplayer 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 ofwarnings 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 40years 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