Hole in Hill Used to Access Public Soccer Field Held Not to be a Dangerous Condition

By Betsy G. Ramos, Esq.

The plaintiff, Andrea DiMatteo, was injured while walking downhill in a park towards the soccer field where her daughter was playing soccer. The park consisted of several terraced soccer fields and the plaintiff’s daughter was playing on a field at the bottom of a short, grassy hill. The plaintiff injured her ankle when her sneaker got stuck in a hole in the grass. In DiMatteo v. Township of East Brunswick, Dkt. No. A-0987-14T3 (App. Div. Nov. 10, 2015), the plaintiff sued the Township to recover for her ankle injury.

There was a dispute as to the extent of the “hole.” While plaintiff described it as a hole, her expert referred to it as a “depression/hole/rut.” The Township’s Director of Recreation said it was a “washout from the topography of the hill.” The Township had brought in topsoil to fill in the bare patches on the slope but acknowledged it was “pretty much a losing battle” due to the topography, it would continue to wash out.

Plaintiff retained a liability expert who opined that what was needed for safe egress were proper walkways and a safe stairway down the slope of the playing field. However, the expert did not measure either the area or depth of the dirt patch where plaintiff fell.

After discovery, the Township filed for a summary judgment on the basis of design immunity. It relied on a site plan approval granted by the East Brunswick Planning Board for the park’s athletic fields. The trial judge granted the motion, finding that the Township was entitled to design immunity. The judge further found that the plaintiff could not prove that the “hole” was a dangerous condition. The plaintiff appealed this dismissal.

The Appellate Division noted that the plaintiff’s expert failed to cite to any standard that unspecified holes or depressions in the grass were themselves a dangerous condition. The court found that his lack of foundation for his opinion that the depression created a substantial risk of injury was fatal to the plaintiff’s claim. Thus, his report would be barred as a net opinion.

Even if plaintiff was able to establish that the hole was a dangerous condition, the court found that the plaintiff had provided no proof that the Township’s failure to fill or seed the holes was palpably unreasonable. It noted that bare spots in grass athletic fields and park lands “are ubiquitous.” The court stated that it had no place dictating to a township to provide a stairway down to a field.

Further, the Appellate Division agreed with the trial court that the claim was further barred by the design immunity defense. There was no dispute that the grade of the slope was an approved design for these terraced athletic fields. Also, there was no dispute that the washouts were caused by the topography of the hill. Accordingly, the court found that, even if plaintiff was able to carry her prima facie burden of establishing that the depression in the grass combined with the steep slope created a dangerous condition, that not repairing it would be palpably unreasonable, the Township was entitled to design immunity due to the design being approved by the Planning Board.

This case illustrates two important points. Even if the plaintiff obtains an expert in a premises liability case, the expert’s report needs to be examined closely to determine if it has a sufficient foundation to avoid being barred as a net opinion. Second, the design immunity defense can trump any finding of a dangerous condition and should always be considered if the injury occurred due to a condition of public property.

Beware Religious Discrimination Claims

By Ralph R. Smith, 3rd, Esq.

An often overlooked aspect of anti-discrimination laws is the restrictions placed on any kind of employment related discrimination due to an employee’s religious membership or beliefs.  Both Title VII and New Jersey’s Law Against Discrimination (“LAD”) contain broad bans on this type of workplace discrimination.  Employers must remind their employees of such prohibitions, or otherwise, you could end up like the employer in the recent case of Nappe v. Holland Christian Hope Association, 2015 U.S. Dist. LEXIS 112537(D.N.J. 2015) who faced a wrongful discharge religion discrimination claim arising out of comments made by coworkers and a supervisor who criticized and belittled an employee’s religious membership as a Roman Catholic.

Plaintiff was a probationary employee who worked on HVAC and other building maintenance projects for the Defendant facility, which was not affiliated with any particular religion.  The employee claimed that during the course of his employment, co-workers in the maintenance department  frequently made derogatory comments about Catholicism and Plaintiff’s membership in that religion, including at one point allegedly calling it a “Mickey Mouse” religion.  Along with those frequent derogatory comments, Plaintiff also claimed that on a number of occasions he similarly would get unsolicited brochures about his coworker’s places of worship that were frequently found in his work locker.

On approximately the 60th day of his employment, Plaintiff was terminated.  The employer claimed that the discharge happened because of work related deficiencies in Plaintiff being unable to perform certain required tasks and for his being involved in a workplace altercation with a coworker.  Plaintiff claimed in this lawsuit that the termination occurred because of his religion.  To support the claims of religion discrimination he brought under both Title VII and the LAD, Plaintiff maintained that his supervisor said at the time of his firing that Plaintiff did not “fit” into the department because he was “not of the Christian faith” and that if Plaintiff was “to convert” from Catholicism, he could probably “help him.”

Defendant moved for summary judgment seeking dismissal of the discrimination claims, arguing in part that there was no evidence supporting the allegations of religion discrimination.  In denying the employer’s dismissal request as it related to the Title VII claim, the court found that the alleged comments attributed to the Plaintiff’s supervisor were enough to create a material factual dispute that prevented the court from granting any dismissal of the claim.  The Court did however dismiss the religion discrimination claim brought under the LAD because it was filed beyond the claim’s required statute of limitations.

To ensure that your workplace never has to encounter the kinds of issues addressed in this case, it is vital that all workplace decisions are made for legitimate nondiscriminatory reasons and that personal views about an employee’s religious beliefs are kept out of the decision making process.  Furthermore, employees must be trained on the dangers of all forms of workplace harassment and discrimination which run afoul of the requirements of either Title VII or the LAD.  If you have not done any recent anti-harassment training, now is a good time to do so with 2016 just a few short weeks away.

John H. Geaney Addresses Occupational Nursing Group

john-geaneyMt. Laurel, NJ – – Capehart Scatchard Shareholder, John H. Geaney, Esq., recently spoke at the Annual Meeting and Conference of the New Jersey State Association of Occupational Health Nurses, Inc. (NJSAOHN) in East Windsor, New Jersey.

Mr. Geaney addressed state and federal laws having an impact on workers’ compensation.  He also discussed the FMLA and ADAAA and changes in these laws.  Additionally, Mr. Geaney summarized recent case decisions pertaining to these issues.

Stephen Fannon Addresses National Business Institute

stephen-fannonMt. Laurel, NJ – – Capehart Scatchard Shareholder, Stephen T. Fannon, Esq. recently spoke at a National Business Institute seminar in Cherry Hill, New Jersey.

Mr. Fannon spoke on medical issues and their role in the complex workers’ compensation case.  Mr. Fannon addressed the leading cases on psychiatric injuries, occupational stress claims, including Section 31, and work-related aggravation of pre-existing conditions.

Lora Northen Addresses New Jersey Self Insurers’ Association

Mt. Laurel, NJ – –  Capehart Scatchard Shareholder, Lora V. Northen, Esq., spoke at the annual business meeting of the New Jersey Self Insurers’ Association on November 6, 2015.

During her presentation, Ms. Northen summarized noteworthy New Jersey workers’ compensation decisions released in 2015.  Some of the case topics covered by Ms. Northen included the independent contractor issue as well as the law governing motions for medical and temporary disability benefits.