Goldmann, Kilkenny and Collester.
[95 NJSuper Page 601] Plaintiff sued defendant township for injuries suffered in the course of a softball game held at a municipally owned and operated park. Following plaintiff's opening to the jury the county judge granted defendant's motion to dismiss the action on the ground that the township
was engaged in a governmental activity and was not liable under the municipal immunity statute, R.S. 40:9-2. This appeal followed.
The facts are not in dispute. The township's recreation department sponsors a softball league made up of eight or nine teams, each of which pays the township an annual fee of $50. The recreation department sets up and schedules the games and assigns the teams to four different playing fields in the township. On June 22, 1965 plaintiff was a member of the Rheem Manufacturing Company team engaged in a league game with the "Meade Street Aces" on a softball diamond in Crestwood Park, Edison Township. Crestwood Park is owned, operated, inspected, maintained and controlled by the township.
During the course of the game plaintiff attempted to steal home from third base. In doing so, his left foot caught on a raised bolt in the hard rubber home plate, causing him to fall and sustain injury to his left ankle.
The complaint alleged that defendant was negligent in defectively constructing and negligently maintaining and managing the home plate, and that plaintiff's injury was a direct and proximate result of that negligence. The municipality pleaded its statutory immunity under R.S. 40:9-2 as a complete defense.
In moving for involuntary dismissal on plaintiff's opening, defense counsel stated that for the purpose of his motion he would assume that everything said in the opening statement would be the basis of plaintiff's claim of municipal liability. Among the matters mentioned in plaintiff's opening were that the township delivered the base bags to the field on the day of the game; that it had a maintenance department and a groundkeeper for the park; that through them it controlled and laid out the diamond, installed the home plate and inspected the field on the morning of the accident; that the plate was in bad condition, and a visual inspection would have indicated that certain of the bolts or spikes had worn through its top surface. In short, it was alleged that the
township was negligent in the manner in which it maintained the softball diamond for those who were to play on it, that it failed to make a regular and necessary inspection, failed to repair the defects in the home plate known or that should have been known to it, and failed to provide a safe place for those engaged in the softball game.
Motions for dismissal on plaintiff's opening are not favored and should not be granted unless the facts are undisputed and the law free from doubt. Passaic Valley Sewerage Com'rs v. Geo. B. Brewster & Son, Inc., 32 N.J. 595, 606 (1960). It is elementary that such a motion admits the truth of all the facts outlined and gives to a plaintiff the benefit of every possible favorable inference which can logically and legitimately be deduced therefrom. Hirsch v. Schwartz, 87 N.J. Super. 382, 387 (App. Div. 1965).
Defendant argues that R.S. 40:9-2 bars the present action. Plaintiff, on the other hand, contends that the statute does not apply; rather, N.J.S.A. 40:61-22.21 does. R.S. 40:9-2 provides:
"No municipality or county shall be liable for injury to the person from the use of any public grounds, buildings or structures, any ...