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Neumann v. Brick Township Board of Education

Superior Court of New Jersey, Appellate Division

October 7, 2013

ROBIN NEUMANN and PAUL NEUMANN, Plaintiffs-Appellants,
v.
BRICK TOWNSHIP BOARD OF EDUCATION, BRICK TOWNSHIP SOCCER ASSOCIATION, TOWNSHIP OF BRICK AND B&B CONSTRUCTION, Defendants-Respondents, and B&B CONSTRUCTION, Third-Party Plaintiff,
v.
SPORTS CONSTRUCTION GROUP,

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 10, 2013.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3291-09.

Durmeriss Cruver-Smith argued the cause for appellants (LePore Luizzi, attorneys; Joseph G. LePore and Ms. Cruver-Smith, on the briefs).

Patricia M. Reilly argued the cause for respondent Brick Township Board of Education (Wolff, Helies, Duggan, Spaeth & Lucas, P.A., attorneys; Ms. Reilly, on the brief).

Mark S. Hochman argued the cause for respondent Brick Township Soccer Association (Law Offices of Stephen E. Gertler, attorneys; Mr. Hochman, on the brief).

Jared J. Monaco argued the cause for respondent Township of Brick (Gilmore & Monahan, P.A., attorneys; Mary M. McCudden, on the brief).

Joseph DeDonato argued the cause for respondent B&B Construction Co. (Morgan Melhuish Abrutyn, attorneys; Mr. DeDonato, on the brief).

Before Judges Fisher, Espinosa and Koblitz.

PER CURIAM

Plaintiff Robin Neumann[2] filed a complaint against public defendants Brick Township Board Of Education (Board) and the Township Of Brick (Township), charitable defendant Brick Township Soccer Association (BTSA) and private defendant B&B Construction (B&B) claiming that she suffered severe injuries when she twisted her ankle during soccer practice due to defendants' failure to maintain the field in a safe condition. Plaintiff, an assistant coach of an under-eleven girls' team, fell in the evening when she was scrimmaging on a poorly lit field adjacent to a football field where artificial turf was being installed by B&B. Plaintiff appeals the orders of September 2 and November 4, 2011 granting summary judgment to all defendants. We affirm.

On the evening of October 9, 2007, plaintiff was helping the head coach of the team, Paul Pallante, to conduct practice for the Brick Thunder girls' soccer team at the Veterans Memorial Elementary School soccer fields in Brick. The team was part of the BTSA, which had a permit issued by the Board to use its fields. The Township decided where the BTSA was permitted to play games and practice.

After the scheduled practice, plaintiff's team moved to an adjacent unlit soccer field to scrimmage with another team. Plaintiff claims that during the course of the scrimmage, while playing with the girls, including her daughter, she "rolled the ball" in a defensive move and fell in a hole on the field near the thirty-yard line. She did not inspect the field before the team moved over to it, and she did not ask if anyone else had walked the field before the scrimmage began. It was dark where she fell, as the area was lit only by ambient light from the temporary lights installed on the adjacent field where they had been practicing.

As a rule, before practice, plaintiff or the head coach walked the fields to see if they were in good shape and if any hazards existed. If she saw any, she "would cone off [the] hazardous area." She explained that she did this for holes or uneven ground. If there was a small problem, she would put a cone on top of it, and if the problem was larger, she would surround the area with cones and put an object inside it.

Paul Pallante, the head coach of plaintiff's team, stated that the coaches had the obligation to inspect the fields and determine that they were in proper condition for play. On the night of the accident, Pallante only visually inspected the field where plaintiff fell, because another team had been playing on it and he assumed that the other coaches had inspected it more closely. Immediately after plaintiff fell, Pallante looked at the spot where she fell and saw no holes or sprinkler head issues or anything unusual in that corner of the field.

Approximately a week after she fell, plaintiff returned to the area. She saw a sprinkler head stuck up about four inches. However, she did not know whether the sprinkler was sticking up on the date of her accident.

In the spring of 2007, plaintiff complained to members of the BTSA about broken sprinkler heads and big holes in the fields, that the fields were unsafe, muddy, and messy, and that there was poor lighting. Although she did not remember the precise dates, she did remember two or three meetings of the BTSA after the summer of 2007 when depressions in the fields were discussed.

Pallante attended two meetings of the Township Council where the BTSA brought up the poor condition of the fields, including discussions about the sprinkler system and lighting. Plaintiff claims that Carol Scott, who was the BTSA director, stated that the Township had no funds for sprinkler heads, so the BTSA was buying and replacing them.

The BTSA asked the Township for lighting, which was put on the fields in the fall of 2006. The lights were erected on a daily basis and only illuminated two fields, although more than two practices went on at one time. Fields were given out on a first come, first served basis. If plaintiff's team could not get a field with lights, it would split a field with another team, or wait for a field with lights.

Plaintiff remembered that in the spring of 2007 there were quite a number of broken sprinkler heads and the water would run into puddles and make big holes in the field. Plaintiff saw the sprinklers spraying water onto the fields in spring and summer in the early afternoon.

Fred Testa, supervisor of the grounds department for the Board, inspected the fields and spoke with Scott Wylie, the senior groundskeeper at the Veterans complex, on a daily basis. Testa did not receive any complaints about the condition of the fields in 2007. Veterans complex consists of approximately sixty acres. Testa explained that a contractor on a construction project at the football field cut the water supply to the irrigation systems. Testa was not aware of any holes or depressions that were created because of the lack of water.

Wylie inspected the fields as part of his job. Wylie worked with a crew of ten men. In 2007, he was at the fields three days per week and testified that the fields were in "playable" condition. Wylie recalled having conversations with Scott from the BTSA about improving the fields and the possibility of the BTSA donating sprinkler heads and grass seed to improve the fields.

Wylie stated that the construction firm intentionally cut the main water line in order to move it. There was a delay from the time the sprinkler lines were cut until they were fixed. Wylie heard of no complaints about field conditions as a result of water not flowing to the soccer fields. The lack of water "stressed out" the fields, but they were still playable. In 2007, Wylie cut the grass on the soccer fields regularly and noticed only some minor holes, which he repaired, but no unusually large holes, divots, or indentations in the fields.

Wylie relied on members of the BTSA and teachers to tell him if there were any major issues with the fields. Any problems brought to Wylie's attention would be repaired, usually the day he was notified. Gym teachers inspected fields on a daily basis, Monday through Friday. Cones were placed on the field to mark depressions, and Wylie gave priority to coned areas.

Former BTSA director Carol Scott stated that the majority of the complaints about the fields were lighting issues and not the condition of the fields. She explained that residents wanted permanent lights, but portable ones were set up for the fall. Scott stated that the BTSA offered to purchase sprinkler heads.

Scott stated that at a practice it was up to the coach to determine if there was anything dangerous on a field and to move to a different location if anything dangerous was found. Scott maintained that both coach Pallante as head coach and plaintiff as assistant coach had the responsibility to inspect the field prior to practice.

Ben DeVizio was an officer of the BTSA. In 2007, he spoke to Wylie about getting sprinkler heads working because grass was dying. DeVizio stated that there were two concerns with sprinklers: when they did not work, grass would not grow, and they broke due to blow outs where a sprinkler head malfunctioned below ground. In the summer of 2007, before plaintiff fell, the BTSA purchased sprinkler heads and donated them, Wylie installed them, and DeVizio believed that the condition of the fields improved.

DeVizio never complained about holes in the fields. He was not aware that the failure of any sprinkler heads caused anything other than patches of missing grass on the fields.

Walter Battaglia, the President of B&B, certified that B&B is the government contractor that excavated the existing grass football field and removed the existing irrigation pipes, tubes, fittings, and appurtenances in accordance with the drawing sheet approved by the Township. B&B did not perform any work related to the adjacent soccer field.

Three years after the incident, Wayne Nolte, plaintiff's liability expert, issued a lengthy report concluding that: (1) the playing field was in a hazardous condition on the day of the accident; (2) the hazardous condition was due to the lack of adequate illumination and lack of a uniform, safe turf; (3) the BTSA, the Township, and the Board were all aware that the ground surface was in poor condition, that the irrigation system was not functioning, and that the illumination level was not uniform; (4) the industry recommendations for soccer fields require safe, uniform surface and proper illumination and neither were provided on the evening of the accident; (5) the Township's Property Maintenance Code required an area such as the playing field to be in a safe condition, free of hazards, and in a proper state of repair; and (6) the failure to provide a uniform, safe playing field surface with adequate illumination was hazardous. Nolte did not mention B&B in his report.

We review a grant of summary judgment de novo, using the same standard that applied in the trial court. Estate of Hanges v. Metropolitan, 202 N.J. 369, 374 (2010). That standard is "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202, 214 (1986)); R. 4:46-2(c). We will discuss the public, charitable and private defendants separately.

I

Under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, the test applicable to plaintiff's claim against the public entities is set forth in N.J.S.A. 59:4-2:

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 [definitions of actual and constructive notice] a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.

[(Emphasis added.)]

In Kolitch v. Lindendahl, 100 N.J. 485, 492-93 (1985), our Supreme Court stated that "there can be no recovery unless the action or inaction on the part of the public entity in protecting against the condition was 'palpably unreasonable, ' a term nowhere defined in the Act." The Kolitch Court relied on our statement in Williams v. Town of Phillipsburg, 171 N.J.Super. 278, 286 (App. Div. 1979), in which we differentiated the term "palpably unreasonable" from ordinary negligence. Kolitch, supra, 100 N.J. at 493. In Williams we stated: "[T]he duty of ordinary care, the breach of which is termed negligence, differs in degree from the duty to refrain from palpably unreasonable conduct. The latter standard implies a more obvious and manifest breach of duty and imposes a more onerous burden on the plaintiff." Williams, supra, 171 N.J.Super. at 286. The Kolitch Court concluded that palpably unreasonable conduct "implies behavior that is patently unacceptable under any given circumstance." Kolitch, supra, 100 N.J. at 493.

for a public entity to have acted or failed to act in a manner that is palpably unreasonable, "it must be manifest and obvious that no prudent person would approve of its course of action or inaction." Moreover, the burden of proof with regard to the palpable unreasonableness of the State's action or inaction is on the plaintiff in a case of this type.

[Ibid. (citations omitted)]

Further, the tenet is that "immunity for public entities is the rule and liability is the exception." Fleuhr v. City of Cape May, 159 N.J. 532, 539 (1999). The question of palpable unreasonableness may be decided by the court as a matter of law in the appropriate case. Maslo v. City of Jersey City, 346 N.J.Super. 350, 351 (App. Div. 2002).

The term "palpably unreasonable" connotes "behavior that is patently unacceptable under any given circumstance." Posey ex rel. Posey v. Bordentown Sewerage Authority, 171 N.J. 172, 188 (2002) (quoting Kolitch, supra, 100 N.J. at 493). It requires a more obvious and manifest breach of duty than mere negligence. Gaskill v. Active Environmental Technologies, Inc., 360 N.J.Super. 530, 536-37 (App. Div. 2003).

In Carroll v. New Jersey Transit, 366 N.J.Super. 380, 390-91 (App. Div. 2004), we upheld a grant of summary judgment in favor of a public entity, concluding that the record demonstrated a lack of palpable unreasonableness as a matter of law. We based this finding on plaintiff's failure to submit a standard of care for inspection of the subject public property, lack of evidence of similar accidents or complaints and the complete absence of a "demonstrable pattern of conduct or practice to suggest the need for a more frequent inspection schedule." Id. at 390-91. In the present case, plaintiff failed to produce any evidence related to an appropriate schedule for the maintenance and upkeep of the fields.

The public defendants produced evidence of a vigilant effort made by gym teachers, coaches and groundskeepers to repair any unsafe condition on the field expeditiously. Wylie checked the fields on a regular basis, and each weekday morning the school's physical education teachers checked the fields before using them for gym class. Further, if BTSA coaches noticed a problem with the fields, they were supposed to let the Board know, and when alerted to a problem, Wylie would generally make repairs the same day. Due to plaintiff's lack of admissible evidence indicating the public entity's action or inaction was palpably unreasonable, summary judgment was proper as a matter of law. See Id . at 391.

In Polzo v. County of Essex, 209 N.J. 51 (2012) the Court quoted the 1972 Task Force Comment on N.J.S.A. 59:4-2 stating:

This section recognizes the difficulties inherent in a public entity's responsibility for maintaining its vast amounts of public property. Thus it is specifically provided that when a public entity exercises or fails to exercise its discretion in determining what action should or should not be taken to protect against the dangerous condition that judgment should only be reversed where it is clear to the court that it was palpably unreasonable. That decision was based on the thesis that a public entity's discretionary decisions to act or not to act in the face of competing demands should generally be free from the second guessing of a coordinate branch of Government.

[Id. at 76 (citations omitted).]

The school comprised sixty acres, and this was only one of thirteen schools in the Township. Procedures were in place for the Board to act when it had notice that there was a dangerous condition on the fields. There was also routine surveillance of the fields to continually make the determination whether the fields were safe for play.

A judge should not hesitate to grant a motion for summary judgment if the evidence "is so one-sided that one party must prevail as a matter of law." Brill, supra, 142 N.J. at 540. Because the record on the issue of whether the Board's actions or inactions were palpably unreasonable was so one-sided, summary judgment was appropriately entered in favor of the Board.

II

Plaintiff asserts that the motion judge erred in granting summary judgment in favor of the BTSA under the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to 11.

No nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes or its trustees, directors, officers, employees, agents, servants or volunteers shall, except as is hereinafter set forth, be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association, where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation, society or association; provided, however, that such immunity from liability shall not extend to any person who shall suffer damage from the negligence of such corporation, society, or association or of its agents or servants where such person is one unconcerned in and unrelated to and outside of the benefactions of such corporation, society or association.

Our Supreme Court has summarized that an entity claiming immunity under the Charitable Immunity Act must demonstrate it "(1) was formed for nonprofit purposes; (2) is organized exclusively for religious, charitable or educational purposes; and (3) was promoting such objectives and purposes at the time of the injury to plaintiff who was then a beneficiary of the charitable works." Tonelli v. Bd. of Educ. of Twp. of Wyckoff, 185 N.J. 438, 444-45 (2005) (quoting Hamel v. State, 321 N.J.Super. 67, 72 (App. Div. 1999)).

Charitable immunity will not apply if an injured plaintiff was a contributor to the organization rather than a beneficiary. Roberts v. Timber Birch-Broadmoore Athletic Ass'n, 371 N.J.Super. 189, 195 (App. Div. 2004); DeVries v. Habitat for Humanity, 290 N.J.Super. 479, 487-88 (App. Div. 1996), aff'd o.b., 147 N.J. 619 (1997). In DeVries, the court explained that a volunteer worker who conferred a benefit on Habitat for Humanity and received no benefit in return except personal satisfaction is not a beneficiary under the Charitable Immunity statute, N.J.S.A. 2A:53A-7, and therefore is entitled to bring a personal injury action against Habitat for Humanity. DeVries, supra, 290 N.J.Super. at 493.

Plaintiff claims that BTSA failed to demonstrate how plaintiff was benefitting from, or a beneficiary of, the organization's "charitable works" at the time of the injury. BTSA asserts that it is undisputed that plaintiff was a member of the Association, she was involved in her daughter's soccer team due to her daughter's involvement, and that she decided to scrimmage with her daughter's team that night, thereby enjoying a recreational benefit. BTSA claims that since plaintiff was a "beneficiary, to whatever degree" of the works of the Association, the Association is immune from liability for the injuries claimed by plaintiff.

To establish its charitable purpose, BTSA relies on its constitution and by-laws, which provide: "This club was formed and exists for the following purposes. [To] [p]rovide a means for the youth of Brick to participate in the sport of soccer. To encourage the spirit of fair play and sportsmanship. To organize and operate teams in various age levels for competitive and recreational players."

The third prong of the charitable immunity test, the "beneficiary" requirement, consists of two parts: (1) was the entity seeking immunity "'engaged in the performance of the charitable objectives it was organized to advance'" at the time the injury occurred and (2) was the injured party "a direct recipient of those good works." Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333, 350 (2003) (quoting Anasiewicz v. Sacred Heart Church, 74 N.J.Super. 532, 536 (App. Div.), certif. denied, 38 N.J. 305 (1962)); DeVries, supra, 290 N.J.Super. at 487-88. It is only the second portion of the third prong, whether plaintiff was then a beneficiary of the BTSA, that the parties dispute.

In Ryan, supra, 175 N.J. at 353, the Court stated:

In assessing who is a beneficiary of the works of a charity, that notion is to be interpreted broadly, as evidenced by the use of the words "to whatever degree" modifying the word "beneficiary" in the statute. Those who are not beneficiaries must be "unconcerned in and unrelated to" the benefactions of such an organization. Gray v. St. Cecilia's School, 217 N.J.Super. 492, 495 (App. Div. 1987).

Charitable immunity is an affirmative defense with the burden of persuasion on the defendant. Abdallah v. Occupational Ctr. of Hudson Cnty., Inc., 351 N.J.Super. 280, 288 (App. Div. 2002). Also important, however, is that the Charitable Immunity Act is remedial and should be "liberally construed so as to afford immunity . . . in furtherance of the public policy for the protection of nonprofit corporations, societies and associations organized for religious, charitable, educational or hospital purposes." N.J.S.A. 2A:53A-10. In Orzech v. Fairleigh Dickinson University, 411 N.J.Super. 198, 205 (App. Div. 2009) (quoting N.J.S.A. 2A:53A-7(a)), certif. denied, 201 N.J. 443 (2010), we stated that "[t]he language of the immunity provision reinforces this precept by granting immunity against any beneficiary 'to whatever degree.'"

Plaintiff asserts that the situation here is similar to Roberts v. Timber Birch-Broadmoore Athletic Association, supra, 371 N.J.Super. at 192-98. In Roberts, the plaintiff maintained that she was a volunteer at her children's soccer tournament by assisting the team with scheduling, supplies, and general support. Id. at 193-94. While at the tournament, the plaintiff fell over a cooler at a vendor's stand near the field and sustained injuries. Id. at 194.

The plaintiff claimed that she was not a beneficiary of the soccer association because (1) neither she nor her family were members of the association and (2) she was present as a volunteer, "contributing her services, rather than receiving benefits from the organization." Id. at 196. Roberts set forth a "but for" test to determine whether a parent was a beneficiary, and thus barred from suit, or a bona fide volunteer with the ability to pursue a claim. Id. at 197. "If [the] plaintiff would not have attended the tournament but for her children's participation, " the court explained, "she is a beneficiary" and thus not entitled to sue. On the other hand, if "she was a bona fide volunteer with specific responsibilities which obligated her to attend, she is a contributor and may pursue her claim." Ibid. Roberts concluded that the factual dispute about whether plaintiff was a bona fide volunteer or merely assisted the teams because she was accompanying her children who were playing in the tournament precluded summary judgment. Id. at 196-98.

Here, the parties do not contest the facts underlying the determination of whether plaintiff is a beneficiary. Plaintiff was an active member of BTSA and was injured while participating in a scrimmage with her daughter. Plaintiff testified that she "pulled [her] daughter from [the] team after [she] quit coaching" because she was dissatisfied with the amount of playing time her daughter received after plaintiff stopped coaching. Thus, plaintiff derived a benefit by guaranteeing her daughter playing time on the team, as well as physically playing soccer with the girls during the scrimmage, thereby enjoying recreational time with her young daughter.

Roberts, in dicta, states that the plaintiff's husband, who was coaching, was obviously a volunteer and therefore not subject to the defense of charitable immunity. Id. at 196. The facts here are different from those underpinning the holding in Roberts. In Roberts, neither the plaintiff nor her husband were members of the defendant charitable organization sponsoring the tournament, nor were the plaintiff or her husband injured while playing with the children during a practice or scrimmage.

To the extent, however, that Roberts can be read to stand for the proposition that a benefit to an unemancipated child does not inure to the benefit of the parent, we disagree. Parents seek to promote in their children the positive values of "the spirit of fair play and sportsmanship." These qualities are included as the stated goals of the BTSA constitution and are taught to the children during practices, scrimmages and games. Where parents assume a leadership role in activities such as scouting, youth sports or religious youth groups, the parents obtain a derivative, positive personal benefit from their child's participation. This derivative benefit places the parent volunteer within the statutory definition of an individual who "is a beneficiary, to whatever degree, of the works of such nonprofit corporation, society or association[.]" N.J.S.A. 2A:53A-7 (emphasis added).

Parents' desire for the love and companionship of their children is an unquestioned tenet of our society. The derivative benefit to the parent of a child's participation in after-school sports is different than the subjective, abstract benefit of personal satisfaction we have found to be insufficient under the Charitable Immunity Act. DeVries, supra, 290 N.J.Super. at 493. Family court dockets are replete with cases of parents seeking to enhance their relationship with their children through custody and visitation litigation. These cases reflect the common-sense understanding that a parent obtains a concrete, personal and individualized benefit through the parent-child relationship. Our Supreme Court recognizes that a parent has a "constitutionally protected . . . fundamental right to the companionship of his or her child." Watkins v. Nelson, 163 N.J. 235, 245 (2000) (quoting In re Baby M., 109 N.J. 396, 450-52 n.16 (1988)). The bond between parent and child "is borne of the daily toil parents engage in to keep their children healthy and safe from harm [and] out of the love and attention provided to the children . . . ." V.C. v. M.J.B., 163 N.J. 200, 233-34 (2000) (O'Hern, J., concurring). This relationship is built upon a "commitment by the adults to live as a family accompanied by the actuality of family life, involving the . . . education of the children in their care." Id. at 233. This goal to increase the overall wellbeing and education of her daughter, as well as to exercise the constitutionally protected right of companionship with her daughter, is a benefit that plaintiff received by coaching and actively participating in her daughter's soccer league.

Parents are also obligated to maintain a basic level of moral care and education for their child. It is undisputed that plaintiff's daughter was the beneficiary of BTSA's charitable purpose to instill sportsmanship, teamwork and promote physical exercise. Thus, plaintiff gained an added benefit through her and her daughter's involvement in the soccer league because BTSA helped plaintiff satisfy her parental obligations. Title 9 sets forth that if a parent behaves in a manner that is "grossly immoral" or unfit by failing to provide the "child with proper protection, maintenance or education . . .[, ]" the Division of Child Protection and Permanency may seek a court order to remove the child from a parent's custody. N.J.S.A. 9:2-9. Title 9 sets forth a minimum standard of care that a parent must achieve in the rearing of their child. Parents aspire to provide an optimal learning and growing experience for their children. Because plaintiff's daughter benefitted from BTSA's charitable purpose, plaintiff benefitted personally as an involved and caring parent seeking to raise a healthy child. As well as enjoying the personal recreational benefit of playing soccer, plaintiff was enjoying her constitutionally protected right to the companionship of her daughter and fulfilling her obligatory role to educate and nurture her daughter. She was therefore a direct beneficiary of BTSA's charitable bounty under N.J.S.A. 2A:53A-7. See Gray, supra, 217 N.J.Super. at 495 (holding a mother injured in the school was a "beneficiary" under the statute because she received a benefit by sending her child to parochial school). Summary judgment was properly granted because plaintiff is a beneficiary of BTSA, which is therefore immune from liability.

III

Plaintiff asserted in her second amended complaint that B&B was negligent by driving trucks or machinery across the soccer fields and by cutting a main pipe, conduit, or electrical wiring during construction of the Astroturf field that caused disruption in the sprinkler system for the soccer fields. Plaintiff contends that the witness testimony and evidence established the following facts: (1) that the main service line for the irrigation system was adjacent to the fence line between the Astroturf field and the soccer field where plaintiff fell; (2) that the soccer field was affected by the damage to one of the main pipes that occurred during construction of the Astroturf and (3) that the condition of the soccer field was rough and "not as well kept." Plaintiff did not present sufficient proofs to survive summary judgment.

Although plaintiff states that there were problems with water forming puddles around the sprinkler heads that started around the time that the Astroturf was installed in spring or summer 2007, plaintiff did not present evidence that any problems with sprinkler heads were caused by B&B. Plaintiff asserts that B&B drove trucks without restriction at the sports complex during construction of the Astroturf field, but presented no evidence that the trucks or machinery went over the soccer field where plaintiff was injured.

There is also insufficient evidence to show that cutting the water supply to the soccer field created a hazardous condition that caused plaintiff's injury. B&B intentionally cut the main water line to move it. While there was a delay in fixing the line, Wylie heard of no complaints about the soccer fields resulting from the lack of water, and Testa was not aware of any holes or depressions that were created because of that lack of water. There is no evidence that B&B's work on the Astroturf field, including cutting water and electrical lines, caused a hole in the field where plaintiff fell. While the lack of water to the soccer field may have dried out the field and caused grass to die, plaintiff did not indicate that she fell due to a patch of dry grass. Her theory that there was a hole caused by the pooling of water from a malfunctioning sprinkler head does not support liability for B&B.

The other issues raised by plaintiff are without sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E).

Affirmed.


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