On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1598-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Alvarez.
Plaintiff, Daniel Duncan, appeals from a summary judgment dismissing his personal injury complaint.*fn1 He attended a minor league baseball game at the field of defendant Somerset Patriots Baseball Club, L.L.C., and signed up for one of the promotions conducted between innings. The event was a three-legged race, at the commencement of which plaintiff slipped and fell and was injured. He contended that defendant was negligent in failing to maintain the premises in a safe condition and that defendant breached its duty to warn him of the risks inherent in the race under all of the attendant circumstances. The trial judge rejected those arguments and, finding the existence of no genuine dispute as to any material fact, granted summary judgment in favor of defendant. On appeal, plaintiff repeats the same arguments and further argues that the trial court failed to adequately express its findings of fact and law as required by Rule 1:7-4. We reject plaintiff's arguments and affirm.
On the evening of August 5, 2006, plaintiff, accompanied by his wife and their son, attended a Somerset Patriots baseball game. The game was scheduled to begin at 7:05 p.m. The weather was clear.
The Patriots typically hold promotional events between innings. Fans are given the opportunity to sign up if they wish to participate. Names of those who have signed up are then randomly chosen to participate in the selected events. On August 5, 2006, twenty-nine different promotions were scheduled to take place between innings. Fourteen of those were open to voluntary fan participation.
Plaintiff had previously attended Patriots games, about twice per season. He had previously signed up to participate in events, but had never been selected. On August 5, 2006, plaintiff signed up for the "Flemington Department Store Best Seat in the House Event," the "Monmouth Park Horse Race," the "Dominoes Attendance Guess," the "Pie Eating Contest," and the "Applebee's Shell Game." Sign-ups for participation occurred at a table located in a common hallway area of the baseball park. Although that table was not staffed, it was located immediately next to the customer service desk, which was staffed. Employees at the customer service desk were available to answer questions regarding the events, and the record reflects that they did so that evening when inquiries were made. Plaintiff did not ask any questions.
The format of the "Monmouth Park Horse Race" promotion changed over the years. Based on his experiences at previous games, plaintiff expressed his recollection that the event participants carried horse flags on the field, and they would move forward based upon the results of a random number generator that would sequentially specify such movement. The event organizer acknowledged that the horse race had been conducted in accordance with plaintiff's recollection in 2003. However, after the 2003 season and into the beginning of the 2006 season, the format changed to one in which participants dressed in inflatable horse costumes and engaged in a foot race around the edge of the infield. Then, the format changed again for the remainder of the 2006 season to a three-legged race, which other minor league teams in the area utilized.
Therefore, when plaintiff signed up for this event prior to the game, he was under the impression that no physical activity would be involved, notwithstanding the designation of the event as a "race." As defendant points out, of the fourteen fan participation events that evening, four were identified as "races" (the Monmouth Park Horse Race, the Cotton Candy Potato Sack Race, the Re/Max Dizzy Bat Race, and the Lukoil Remote Control Truck Race) and another was identified as a "dash" (the Quick Chek Sparkee Dash).
In the middle of the first inning, four names, including plaintiff's, were announced over the public address system as individuals chosen for the horse race. As instructed, those four individuals reported to the area of the customer service desk and sign-up table. They were greeted by Patriots employees and taken down to the field level. An employee explained that this would be a three-legged race, with two pairs of participants, which would begin when the inning was concluded.
The four individuals were asked if they had preferences as to teams. All four said they did not. An employee asked the participants if they understood the nature of the event and asked if they had any questions. One of the participants inquired about the length of the race, to which an employee responded that it would be between home plate and first base. Each pair was given a horse head to carry and a bandanna to be used to tie their legs together. The record reflects that the various participants and witnesses said that between five and fifteen minutes elapsed between when all of this was explained to the participants and when the race began. Although any of the participants could have decided not to participate after the details were explained to them, they all chose to participate.
As plaintiff and his partner prepared for the beginning of the race, they discussed their strategy. They agreed that each would take their first step with their free leg. When the signal was given to begin, plaintiff did so, but his foot slipped out from under him and he fell, injuring his knee.
Plaintiff weighed about 340 pounds. He described his partner as a "taller lanky-type person," weighing about 160 pounds. In his deposition testimony, plaintiff acknowledged that shortly before this evening he had participated in a three-legged race with his son at a boy scout camp. He did so uneventfully. It appears that his son's ...