July 18, 2008
SHIHED FRAZIER, PLAINTIFF-APPELLANT,
USA SOFTBALL/HUDSON COUNTY NJ, COUNTY OF HUDSON, DIVISION OF PARKS/PUBLIC RESOURCES DEPARTMENT OF HUDSON COUNTY, THOMAS MCCANN, JOSEPH ABALSAMO, AND KEN JENNINGS, DEFENDANTS-RESPONDENTS, AND TOWNSHIP OF NORTH BERGEN, STATE OF NEW JERSEY, DEPARTMENT OF PARKS & PUBLIC PROPERTY, COM ALLEN PASCUAL, AMATEUR SOFTBALL ASSOCIATION OF AMERICA, CIRCULO DEPORTIVO AMISTAD, MARTIN PERALTA, HERNAN PEREZ, ALEJO HERNANDEZ, TEAM PYTHONS, MOLSON COORS BREWING COMPANY, BRUGAL AND JOSE SANTOS, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-5884-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 23, 2008
Before Judges Cuff, Lihotz and Simonelli.
Plaintiff Shihed Frazier was injured while participating in a softball game played at James J. Braddock/North Hudson Park (the park) in North Bergen, a county-owned, natural grass field. Plaintiff appeals from the trial court's grant of summary judgment and order dismissing his negligence action against defendants Hudson County*fn1 (the County), Thomas McCann, Chief of the County Parks Division, Ken Jennings, his assistant, Joseph Abalsamo, supervisor of the park, and the Amateur Softball Association (ASA),*fn2 which sanctioned the softball league and is the governing body responsible for promulgating the rules and regulations of the game. We note the other named defendants are no longer participating in the litigation.*fn3
During oral argument on the motion, plaintiff conceded the ASA's claimed charitable immunity, N.J.S.A. 2A:53A-7(a), and that McCann and Jennings had no personal liability. The motion by the County and Abalsamo asserted immunity pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 14-4. Plaintiff challenged these immunity claims and argued summary judgment was obviated by disputed material facts regarding defendants' failure to properly maintain the outfield area of its softball field, thus, creating a dangerous condition, which caused his injury. Judge O'Shaughnessy granted defendants' motions on the bases asserted. On appeal, plaintiff reasserts the arguments proffered below and seeks to set aside the order of summary judgment as to the County and Abalsamo. We affirm.
We accept, as true, plaintiff's version of the facts gleaned from the pleadings, affidavits, and depositions, giving him the benefit of all inferences favorable to his claim. R. 4:46-2; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995). On June 5, 2005, plaintiff, a member of Team Pythons in the Circulo Deportivo League, was playing softball on field number one at the park. Prior to the game, plaintiff, the other players, and the umpire walked around the field inspecting for conditions that would impede the players or adversely affect play. According to plaintiff, if any player saw a problem with the field, he would report it to the umpire. No problems were noted or reported. The game commenced with plaintiff playing in right field. During the third inning, while attempting to catch a fly ball, plaintiff tripped and fell. Plaintiff described his fall stating both feet fell into a six to twelve inch deep, ditch-like hole that was obscured by overgrown grass. Plaintiff suffered significant knee injuries, which required surgery.
A few days later, plaintiff's cousin and a friend photographed a hole in the right field area, after they removed three to four medium-sized rocks from the depression. Neither photographer attended the June 5, 2005 game. The County had not received prior complaints regarding the condition of the field, despite its heavy summer use, and it first learned of plaintiff's accident when it received his tort claims notice.
Plaintiff asserts sufficient facts established the public entity's liability for his injuries caused by the dangerous condition on the park's softball field, pursuant to N.J.S.A. 59:4-2, and the defendants' failure to maintain the outfield grass area free of depressions was palpably unreasonable. Therefore, summary judgment was improperly entered.
In deciding a summary judgment motion, the trial court's "function is not . . . to weigh the evidence and determine the truth . . . but to determine whether there is a genuine issue for trial." Brill, supra, 142 N.J. at 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed. 2d. 202, 212 (1986)). The trial judge must 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." Ibid. The thrust of Brill is that "when the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court should not hesitate to grant summary judgment." Ibid. (quoting Liberty Lobby, Inc., supra, 477 U.S. at 252, 106 S.Ct. at 2512, 91 L.Ed. 2d at 214). If there is no genuine issue of fact, we must then decide whether the lower court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
Following our review of the evidence, using the same standard as the trial court, Liberty Surplus Ins. Co. v. Amoroso, P.A., 189 N.J. 436, 445-56 (2007); Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007), we are not persuaded by plaintiff's arguments. We are satisfied the judge correctly applied the law to the undisputed material facts viewed most favorably to plaintiff, see Brill, supra, 140 N.J. at 540, and concluded plaintiff failed to overcome the immunity provided to the County and Abalsamo by N.J.S.A. 59:2-1 and N.J.S.A. 59:3-2. Accordingly, we affirm substantially for the reasons articulated by Judge O'Shaughnessy in his comprehensive opinion granting summary judgment rendered on May 3, 2007.