On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5119-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Messano.
Plaintiffs Bonnie and Joseph Colletti appeal from the March 3, 2006, order granting summary judgment to defendants County of Monmouth, Monmouth County Park System, and Monmouth County Park Rangers (collectively Monmouth County or defendant).*fn1 Plaintiff contends 1) that the motion judge erred in barring her expert engineer's report as a net opinion, and 2) that even without the benefit of an expert opinion, a genuine factual dispute existed as to the dangerous condition of defendant's property and summary judgment was inappropriate. Monmouth County argues that plaintiff's expert's report was a net opinion and the motion judge correctly barred its introduction. Furthermore, defendant contends that plaintiff's injuries were caused by the actions of a third-party and not by any dangerous condition on its property and, therefore, summary judgment was warranted.
We have carefully considered these issues in light of the record and applicable legal standards. We affirm, in part, reverse, in part, and remand the matter for further proceedings.
Since we are reviewing a grant of summary judgment, we consider the facts in a light most favorable to plaintiff.
On December 31, 2000, plaintiff was in Holmdel Park, a facility owned and operated by Monmouth County, watching her children sleigh ride. She was standing in a walkway that was created by the installation of plastic mesh fencing on both sides. The children's sleigh riding hill was on one side of the walkway fence and an area where older children and adults could sleigh ride was on the other side of the opposite walkway fence.
The walkway permitted sleigh riders who had finished their ride to walk back up to the top of the hill without concern for other riders coming down. In addition, it provided an area in which those observing the sleigh riding could stand. The fencing was similar to that used to cordon off a construction site and consisted of plastic posts with hooks on them. The plastic mesh loops of the fencing were placed on the hooks and then tied to the posts with plastic "zip ties." Nothing secured the bottom of the mesh fencing to the ground.
As plaintiff stood in the walkway, defendant Kathryn Costello, who was ten years old at the time, came through, or under, the plastic fencing on her sled and struck plaintiff causing her to fall. She sustained serious injuries as a result.
Park Ranger Brock Ziegler was the first to respond to plaintiff's side and he summoned additional help. In his deposition, Ziegler testified that although he did not install the fence that year, he was involved in the placement and installation of the fence in subsequent years. This was done by the park rangers without manuals or guidelines from Monmouth County. He acknowledged that the fencing was intended to be a barrier to keep those who were sleigh riding from crossing into the walkway.
After tending to plaintiff, Ziegler looked for the sled that struck her and also investigated the condition of the fence. He observed a tear in the plastic fencing, approximately three feet wide, on the side of the walkway facing the children's hill, about five feet from plaintiff's location. Ziegler also admitted that he had seen sleigh riders tear through the plastic fencing five or six times, and, when that occurred, the rangers repaired the fencing with ties.*fn2
Park Ranger Tammy Wiatt's deposition testimony largely corroborated Ziegler's. Defendant Raymond Costello, father of Kathryn, testified that someone at the scene told him his daughter's sled had ...