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Joan M. Kenny and Timothy Kenny v. Bridgewater Golden Eagles

August 6, 2012

JOAN M. KENNY AND TIMOTHY KENNY, PLAINTIFFS-APPELLANTS,
v.
BRIDGEWATER GOLDEN EAGLES, TOWNSHIP OF BRIDGEWATER, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1206-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 25, 2011 --

Before Judges Payne and Hayden.

Plaintiff, Joan M. Kenny, and her husband, Timothy Kenny,*fn1 appeal from the February 16, 2011 orders granting summary judgment to defendants Township of Bridgewater (Bridgewater) and the Bridgewater Football League (BFL), also known as the Bridgewater Golden Eagles, and dismissing her complaint for personal injuries with prejudice. For the reasons that follow, we affirm.

Viewed most favorably to plaintiff, see Rule 4:46-2(c), Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the summary judgment motion record discloses the following facts. Plaintiff brought this action against Bridgewater and the BFL due to an injury she sustained as a result of a fall at Harry Ally*fn2 Memorial Park (Harry Ally or the park), which Bridgewater owned and operated. The BFL, a nonprofit educational organization, ran a youth football league that held games in the park for two months every year as authorized by a facilities permit issued by Bridgewater. While the permit allowed the BFL to use the park for practice and Saturday games, the league had no responsibility for maintenance of the park.

The BFL also operated a concession stand, known as the Snack Shack, where it sold food and drinks from a mobile trailer during the Saturday football games to raise money for the league. Everyone who worked at the Snack Shack was a volunteer, generally a parent of children playing in the league. Bridgewater determined the location of the mobile concession stand, which was largely dictated by the availability of electricity for the trailer.

Harry Ally, a large municipal recreational facility with tennis and basketball courts, was owned, operated, controlled, and maintained by Bridgewater. Of import to this case, there were two multi-purpose athletic fields, the westerly or upper field, separated from the easterly or lower field along its entire length by a pathway and an embankment. In order to get from the upper field to the lower field, members of the public could walk down the embankment, or could avoid traversing the grassy slope by taking a longer route around the field. The Snack Shack was located on the lower field on level land near the steepest part of the embankment.

Bridgewater developed Harry Ally in 1977 in accordance with design plans duly approved by the Town Council and the New Jersey Department of Environmental Protection. The original plans, dated April 29, 1976, contained grading designs to address drainage issues and included the graded embankment area between the two athletic fields. The grading design has remained unchanged since the original construction and was consistent with the original site plans. Bridgewater was unaware of any prior injuries on the embankment or of complaints by members of the public that the embankment created a dangerous condition.

On September 22, 2007, plaintiff came to the park with her five-year-old son, two daughters and husband, because her son was scheduled to play for one of the league's flag football teams on the upper field. Plaintiff had volunteered to help at the Snack Shack because her son was scheduled to play that day. She left her family on the upper field and proceeded toward the Snack Shack on the lower field. She took two steps off the upper field path onto the sloped embankment, which was wet from morning dew, when she slid back and suddenly was "in excruciating pain laying on the ground." Plaintiff received emergency medical care and was immediately taken to the hospital for additional treatment for serious injuries.

In his report, plaintiff's expert engineer, Len McCuen, P.E., opined that while there was nothing inherently wrong with the embankment, the placement of the concession stand on the lower field enticed people to walk toward it from the upper field, causing the embankment to become a walkway or ramp that did not meet the construction codes for such structures. In his opinion, plaintiff fell due to the steepness of the slope of the nearby embankment. He also noted that the steepest part of the embankment near the concession stand had a slope of thirty degrees, which constituted a walkway hazard. He concluded that the use of the embankment as a means of access to the concession stand created a dangerous condition on public property that fell below accepted industry standards for similar recreational and commercial facilities and resulted in a risk of injury that was palpably unreasonable.

After the completion of discovery, both defendants filed motions for summary judgment. The trial judge found Bridgewater had immunity under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 14-4, because there was no evidence that the property was in a dangerous condition, and if a dangerous condition existed, there was no evidence that an employee's negligence caused it or that the public entity had notice of the condition. The judge also held that Bridgewater was entitled to plan or design immunity pursuant to N.J.S.A. 59:4-6. In the case of BFL, the judge held that the league had immunity under the New Jersey Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11, because the BFL was a non-profit corporation organized for educational purposes and plaintiff was a beneficiary of its works. Additionally, the judge found plaintiff had failed to demonstrate negligence by BFL, because the league owed no duty of care to plaintiff. Accordingly, the trial judge entered orders granting both defendants' motions for summary judgment and dismissing the complaint with prejudice. This appeal followed.

In reviewing a grant of summary judgment, we apply the same standard as the trial judge in determining whether there are any genuinely disputed issues of material fact sufficient to warrant resolution of the issues by the trier of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We must first determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In doing so, we view the evidence in a "light most favorable to the non-moving party." Henry v. N. J. Dep't of Human Servs., 204 N.J. 320, 329 (2010) (citing Brill, supra, 142 N.J. at 523). Because our review of the issues of law is de novo, we accord no special deference to the motion judge's legal conclusions. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

Plaintiff's negligence claim against Bridgewater implicates the TCA, which provides general immunity for all governmental bodies, except in circumstances where the Legislature has specifically provided for liability. See N.J.S.A. 59:1-2 and 2-1; Bell v. Bell, 83 N.J. 417, 423 (1980). "Under the Act, immunity is the norm, unless liability is provided for by the Act." Davenport v. Borough of Closter, 294 N.J. Super. 635, 637 (App. Div. 1996). The public entity bears the burden of proof for establishing immunity. Bligen v. Jersey City Housing Authority, 131 N.J. 124, 128 (1993). In determining if a public entity is immune, first we "identify the culpable cause of the accident and . . . ask if that ...


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