Article by Capehart Scatchard

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.