In Brigante v. Tenafly Board of Education, plaintiff was struck by an errant ball while attending her son’s baseball game.  Plaintiff claimed that the Board was negligent in failing to install elevated protective fencing and for the lack of warning signs in the area. In support of her claim, plaintiff retained a liability expert who opined that the fencing was not high enough. The expert relied upon the Babe Ruth League Facility Guide to come to his conclusions.

The Board moved for summary judgment arguing that as a public entity, it was entitled to immunity under the New Jersey Torts Claims Act.  To overcome the immunity, plaintiff had to show that the Board’s conduct was “palpably unreasonable” under the Act.  Since the expert did not identify an actual standard for fence height under the Act, and the Babe Ruth League Facility Guide served for “recommendation” purposes only, the Court found that plaintiff was unable to establish that the Board’s conduct was “palpably unreasonable.”  The court upheld dismissal of the complaint.

Plaintiffs can retain experts to opine on almost anything, and experts can generally find a way to find the defendant negligent.  However, defendants should carefully scrutinize the expert reports to ascertain whether the experts are relying on “recommendations” or actual requirements under a specific statute.

Thanks to Heather Aquino for her contribution to this post.