On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1501-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, R. B. Coleman and Sabatino.
Plaintiff Joseph P. Cusumano, Jr. and Joanne Cusumano*fn1 appeal from a May 1, 2006 order of the Law Division granting partial summary judgment and dismissing his complaint against defendant the United States Over Thirty Baseball League (the League). The matter thereafter proceeded to a jury trial resulting in a verdict in favor of the remaining defendants Gordon Bartolomei and the Monmouth Whitesocks (Whitesocks). Plaintiffs appeal from that verdict as well specifically challenging an evidence ruling made by the trial judge excluding a photograph from consideration by the jury. We affirm.
These are the relevant facts. Plaintiff joined the League and played for the Staten Island Cardinals baseball team (Cardinals). The League only requires its members to sign a registration form and pay $75, which plaintiff did. On June 23, 2002, the Cardinals played an away game at the Middletown North High School Varsity Field (varsity field) against the Whitesocks, another team in the League. The League scheduled this game and assigned varsity field as the venue. During the game, plaintiff suffered an injury while baserunning.
Prior to the games on June 23, 2002, the Whitesocks' coach, defendant Bartolomei, brought "throw down" bases to the field for use in the game. A "throw down" base is "a regular baseball base that's flat on both sides, probably about two inches thick," "off-white" in color and "square" in shape. Bartolomei claimed he did not personally place the "throw down" bases in the field of play; he assumed other members of the team did this. Bartolomei also noted that varsity field was not either team's "home field," that they did not have a permit to use the varsity field and that the League had assigned the two teams to play there on that date. The permit for the field was actually given by the Township of Middletown Department of Parks and Recreation to defendant Charles Hengartner, the coach of another team in the League, the Middletown Indians ("Indians").
With regard to the placement of bases on the field, Hengartner stated:
Q: Do you have any responsibilities as the manager with regard to setting up the field for play?
A: Yeah, I -- I guess it's -- I guess it's unwritten -- I've never read it, but generally as the -- if it's your home field you bring the bases, unless they're there already. You know, some fields they affix the bases, and the [sic] pin them to the bottom somehow. I bring some of the equipment -- you know, like catcher's equipment. Sometimes the catcher brings it himself, but -
Q: With regard to this particular field do you bring those fixed bases?
Q: And for how many years have you been using fixed bases on this field?
A: Like I said before, probably seven, or eight, something like that. It could even be longer.
Q: And it's the home team that puts the bases down?
The varsity field uses a "fixed base" system which Hengartner described as:
this hollow square post [that] fits over the solid post that runs down beneath the surface. It has a smooth round top. This fits over that smooth round top, then goes -- you know, goes about, I guess, two or three inches in which this hollow post fits over the solid post so the base can't turn --Hengartner further described the "solid post" and its relationship with the field level.
Q: Okay. Onto that metal post. Do you know how close up from down below to the ground surface the metal post comes? Is it flush?
A: On that particular field?
A: Well, I -- I have to say that -- that I can't remember a time when we didn't have to dig, at least, an inch, or two to find it.
Mainly because when it rains the water runs across the field, brings the silt from foul territory to fair territory, and kind of covers up -- kind of covers up the post.
And this, pretty much, occurs on -- on all three of the bases.
Q: Okay. And -- and so, if you're going to use the base someone would have to dig it out?
Q: How far down would you have to dig out?
A: As I said, you know, at least an inch -- as a matter of fact many times my players -- and I would get annoyed with them. They would say, we can't find it. We can't find it. I'd say, it's there. Just keep looking. Keep digging. Keep looking, Your [sic] Honor. So -- and, you know, eventually we always find it.
Hengartner also claimed that the League purchased the bases for this fixed base system for the Indians to use on the varsity field, but they were not used for the June 23, 2002 game between the Whitesocks and the Cardinals.
Prior to the game, the umpires discussed the use of the throw down bags in their pre-game conference. The use of "throw down" bags in the League was common, and Bartolomei acknowledged this discussion during trial.
Also, with regard to the bases. And it's determined at the beginning of the game that the bases are throw-down bags, which are often used in our league, and the managers have to go back after that is discussed to say that there's rules ...