In the context of sporting injury litigation, a plaintiff must prove that a commercial recreational facility failed to exercise reasonable or due care to provide a safe environment for the athletic activity involved. This duty or standard of care is balanced against the fact that certain sports carry inherent risks that cannot be avoided by the exercise of due care. In fact, although New Jersey’s comparative negligence statute has effectively removed the assumption of the risk defense, our courts nonetheless recognize that injuries are not unexpected in the context of athletic endeavors. So when a plaintiff sets out to prove an athletic facility has breached its duty, the question becomes how can this proof burden be met, i.e. is the topic of common knowledge or must expert testimony be produced.
Recently, the New Jersey Appellate Division considered this issue in the context of an ice skating injury. In Pugliese v. Red Bank Armory, Judge Bauman granted summary judgment to the Armory for a claim by an eleven year old novice skater who was injured while using a walker on the ice to aid her in her skating. She claimed that she slipped while skating and caught her leg in the walker apparatus. She sustained a tibia/fibula injury and underwent closed reduction.
The plaintiff alleged that the Armory should not have allowed walkers on the ice. However, critically missing from her case was any expert testimony as to the standard of care owed or addressing the condition of the specific walker provided by the Armory. The plaintiff only produced an expert report from a physician who causally related the injury to her fall but could not opine on the biomechanics of the injury. At summary judgment, the defendant successfully argued that the plaintiff could not sustain her proof burden without a liability expert on standard of care and that falling on ice was a normal incident of skating.
The appellate division affirmed summary judgment noting that while there is no rule or policy on when expert testimony is required, if the issue to be proven is so esoteric that a juror of common judgment and experience would not be able to form a valid judgment on it, expert testimony is required. Whether a skating facility should permit walkers is outside the ken of typical jurors. Without testimony to establish the standard required of a rink, the plaintiff’s case had a fatal flaw.
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