On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Mercer County, L-0061-05.
The opinion of the court was delivered by: Kestin, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin, Graves*fn1 and Lihotz.
Plaintiffs, Denise M. Sciarrotta and her husband suing per quod, appeal from an order granting defendants' motion for summary judgment and dismissing the complaint with prejudice. In orally articulating his reasons for the decision, the motion judge announced a different basis for dismissing the claims against the various private-entity defendants than applied to the one public-entity defendant specifically considered, the Mercer County Improvement Authority (MCIA). In respect of the latter, the judge ruled under the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3, that "no evidence has been presented that an employee of the [MCIA] created a dangerous condition to [sic] an act or omission." Although the notice of appeal denotes a challenge to the entire order, plaintiffs have not briefed any arguments regarding the ruling in favor of the MCIA, i.e., the public-entity defendants generally, and must, accordingly, be deemed to have waived that issue. See Pressler, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2006). Our references to "defendants" hereafter are, therefore, to the private-entity defendants.
The claims arose from events on January 4, 2003. Plaintiffs allege that Ms. Sciarrotta was in the Sovereign Bank Arena for a hockey game between defendant teams; that she was sitting in the sixth or seventh row from the ice, above the plexiglass protective barriers; and that there was no protective netting where she was seated. At the time of the incident she was watching the two teams warm up. During warm-ups, according to the deposition of the President and General Manager of defendant Trenton Titans, there are about twenty-five pucks per team on the ice, and the players practice passing the pucks back and forth to each other and taking shots at the goals. The injury occurred when Ms. Sciarrotta was hit in the head by a puck that entered the stands. Another spectator stated that he saw the puck hit the side of the goal post and ricochet into the stands striking Ms. Sciarrotta. Plaintiffs assert that "[t]his hockey game was the first time [Ms. Sciarotta] had ever sat in general admission seats and her purpose for being at the game was to watch her daughter sing the National Anthem."
Plaintiffs allege, inter alia, that defendants were actionably negligent in failing to "keep the premises in a safe condition"; in "caus[ing] a dangerous condition to exist"; in "fail[ing] to provide proper safeguards and/or warnings on their property"; and in "fail[ing] to provide proper safe . . . access" for patrons.
The motion judge began his analysis with references to the standards governing summary judgment consideration: "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 every instance, "the motion judge [is] to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). "The 'judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed. 2d 202, 212 (1986)). In reviewing a trial court's summary judgment decision, without according deference to the motion judge's rulings of law, see Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995), we are bound by the same standards, see Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998).
The legal standard that applies to this case was also correctly identified by the motion judge. It is found in Maisonave v. Newark Bears Prof. Baseball Club, 185 N.J. 70 (2005), where, in respect of spectator safety at sports events, the Supreme Court adopted the limited duty rule as one that fairly balances the practical and economic interests of owners and operators with the safety and entertainment interests of the fans, . . . to the extent that it holds that owners and operators must offer sufficient protected seating to those who would seek it on an ordinary basis and to provide screening in the most dangerous area of the stands. [Id. at 81.]
The Court went on to characterize the scope of the limited duty rule's application in this State:
We expect owners and operators--who are in the best position to determine which areas of the stadium are indeed the most dangerous--to identify those areas and take preventative steps to ensure fan safety to a reasonable extent. * * * [O]wners and operators must reassess whether there is a sufficient amount of protected seating available "in the 'most dangerous' locations for those that might reasonably expect to obtain such seats." [Id. at 82 (quoting Gil Fried, Baseball Spectators' Assumption of Risk: Is It 'Fair' or 'Foul'?, 13 Marq. Sports L.J. 39, 58 (2002)).]
The Court established a higher duty, based on "traditional rules of negligence, specifically the business invitee rule, [to] govern owner and operator liability for injuries that occur in all other areas of the stadium." Id. at 87.
Although the Court in Maisonave dealt with the liability issues in the context of a baseball stadium, it cited, with approval, our decision in Schneider v. American Hockey and Ice Skating Ctr., Inc., 342 N.J. Super. 527 (App Div. 2001), where we applied the limited duty rule in the context of a hockey arena, holding: a hockey rink operator has a limited duty to provide a protected area for spectators who choose not to be exposed to the risk posed by ...