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In response to the rising popularity of pickleball, park and recreation agencies sometimes have responded to the increased public demand for pickleball courts by converting and relining existing tennis courts. In so doing, as illustrated by the case described herein, the configuration of such converted tennis/pickleball courts may give rise to a potentially hazardous condition and possible premises liability.
In the case of Burzenski v. Town of Branford, 2022 Conn. Super. LEXIS 686 (6/22/2022), the state court considered claims of negligence and nuisance liability under state law following a fall on a pickleball court in a municipal park. In so doing, the court also addressed the applicability of general governmental immunity for “discretionary functions.” In addition to Connecticut, subject to jurisdictional variations, many states as well as the federal government provide similar forms of discretionary function immunity against negligence liability.
Facts of the Case
The Defendant Town of Branford, Connecticut (the Town) had installed and oriented pickleball courts at Foote Park. On September 9, 2017, Plaintiff John Burzenski (Plaintiff) was engaged in a game of pickleball at Foote Park in Branford, a public park owned, operated and maintained by the Defendant Town. While playing, Plaintiff fell over a raised concrete bench immediately adjacent to the pickleball court, causing various injuries. Plaintiff subsequently sued the Town.
In response, on May 3, 2021, the Town filed a motion for summary judgment on Plaintiff’s negligence and nuisance claims. If granted, summary judgment would effectively dismiss Plaintiff’s lawsuit without further trial proceedings. In so doing, the Town contended applicable governmental immunity under state law barred any liability for negligence. In addition, the Town claimed the alleged facts in this case were insufficient to sustain a claim of nuisance. In the alternative, the Town raised assumption of risk as a defense to alleged liability for nuisance.
On September 14, 2021, Plaintiff filed an objection to the Town’s summary judgment motion. On the issue of negligence liability, Plaintiff argued further trial proceedings were necessary to resolve “genuine issues of material fact concerning whether the defendant violated a ministerial duty”; i.e., a mandatory legal requirement which precludes any governmental discretion or judgment. In addition, Plaintiff contended evidence existed to support a claim for nuisance liability. Plaintiff also argued the Town had failed to conclusively establish the assumption of risk defense in the pretrial record.
As noted by the court, summary judgment in favor of the Defendant Town would only be appropriate when the pretrial “pleadings, affidavits and any other proof submitted” conclusively establish the Town is “entitled to judgment as a matter of law.” In other words, the pretrial record would have to lack any “genuine issue as to any material fact” on the alleged liability claims that would warrant further consideration and resolution in a jury trial.
Discretionary Function Immunity
In this case, the Town had argued it was entitled to summary judgment for any alleged negligence based upon governmental immunity applicable to “discretionary functions.” In so doing, the Town contended “the operation and installation of pickleball courts at Foote Park and their inspection, maintenance, and repair are discretionary functions.”
In response, Plaintiff claimed “the USA Pickleball Rulebook establishes minimum standards for the playing area of pickleball courts, creating a ministerial duty for the defendant’s courts.” According to Plaintiff, the contractor retained by the Town to line the court had referenced “the Rulebook and guidelines and recommendations from the American Pickleball Association” as instructive in “providing the minimum standard measurements for courts.” Accordingly, Plaintiff alleged the Town’s failure to “follow these proffered standards resulted in a pickleball court with inadequate and unsafe dimensions, in violation of a ministerial duty.”
In addressing the issue of governmental liability and immunity, the court cited the following applicable state law, which “allows a plaintiff to bring a direct cause of action for negligence against a political subdivision of the state”:
Section 52-557n abrogates the common-law rule of governmental immunity and sets forth the circumstances in which a municipality is liable for damages to person and property. These circumstances include the negligent acts or omissions of the political subdivision or its employees or agents.
Under state law, the court further noted “municipal employees are liable for the misperformance of ministerial acts or duties that are to be performed in a prescribed manner without the exercise of judgment or discretion.” On the other hand, the court noted: “The hallmark of a discretionary act is that it requires the exercise of judgment.” Further, the court found municipal employee liability for negligence in the performance of ministerial acts was limited to the following circumstances:
Connecticut courts consistently have held that to demonstrate the existence of a ministerial duty on the part of a municipality and its agents, a plaintiff ordinarily must point to some statute, city charter provision, ordinance, regulation, rule, policy, or other directive that, by its clear language, compels a municipal employee to act in a prescribed manner, without the exercise of judgment or discretion.
As a result, the court found: “Descriptions of general practices or expectations that guide an employee’s exercise of discretion do not create a ministerial duty.” On the contrary, a ministerial duty would require “specificity” in “all aspects of the directive”:
If there is no directive setting forth the manner in which a municipal official is to perform the act, then the act is not ministerial and is therefore discretionary in nature. In general, the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity.
Moreover, for purposes of municipal liability under state law, the court noted “municipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists.”
Applying these principles to the facts of this particular case, the court found “no ordinances, directives or policies regarding the manner or method the defendant is to install, line, orient, maintain, repair, or inspect benches and courts in Foote Park.” As a result, the court held “the defendant’s placement of the court, and any duty to inspect, maintain, and repair the courts or benches at Foote Park are discretionary, rather than ministerial in nature”:
Because there is no evidence of a city charter provision, ordinance, regulation, rule, policy or other directive that would compel municipal employees to act in a prescribed manner with respect to defects encountered on city property, the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity.
The court, therefore, rejected “[P]laintiff’s attempt to turn this discretionary duty into a ministerial one by arguing that the USA Pickleball Association’s Rulebook created a ministerial duty for the defendant”:
The plaintiff merely submits its expert’s deposition testimony that the Rulebook reflects the industry standards as to the court size for pickleball games; he has not provided any evidence demonstrating that the defendant adopted or was required to consult the USA Pickleball Association’s Rulebook.
As characterized by the court, the “USA Pickleball Association’s Rulebook is not a source for the defendant’s alleged ministerial duties.” According to the court, there was “no evidence of a city charter provision, ordinance, regulation, rule, policy or other directive that would compel municipal employees to act in a prescribed manner with respect to the installation, orientation or maintenance of pickleball courts and concrete benches in Foote Park.”
Having found the Town’s conduct was “discretionary rather than ministerial,” the court concluded governmental immunity was applicable to this case and granted the Town’s motion for summary judgment on Plaintiff’s claim of negligence liability.
Elements of Nuisance Liability
In the complaint, Plaintiff also had alleged “the existence of the concrete bench in close proximity to the pickleball court was a defective, unsafe and highly dangerous condition” that constituted a public nuisance “created and maintained” by the Defendant Town.
As described by the court: “Public nuisance law is concerned with the interference with a public right, and cases in this realm typically involve conduct that allegedly interferes with the public health and safety.” Further, to establish a claim for public nuisance, the court would require Plaintiff to allege and ultimately prove the following elements:
(1) The condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; and (4) the existence of the nuisance was a proximate cause of the plaintiff’s injuries and damages.
In addition, the court noted municipal liability for nuisance under state law would require a plaintiff to prove “the defendants, by some positive act, created the condition constituting the nuisance.”
While acknowledging “the requisite elements are present to constitute a nuisance is ordinarily a question of fact” for consideration in a jury trial, the court then addressed each of these required elements in this particular case to establish public nuisance liability under state law.
Positive Act Element
Under the circumstances of this case, the Town had argued Plaintiff’s “claim of nuisance must fail” because the Town “did not perform a positive act in regard to the placement of the benches adjacent to the pickleball court.” In response, Plaintiff claimed the Town had engaged in a “positive act” through a “deliberate decision” to “install a pickleball court in close proximity to the concrete bench that created a nuisance.”
As cited by the court, an “act” within the context of municipal liability under state nuisance law would occur “only when the municipality positively acts (does something) to create (cause) the alleged nuisance.” On the other hand, the court noted “a failure to act to abate a nuisance” would not constitute an “act” within the meaning of state nuisance law because “inaction does not create or cause a nuisance; it merely fails to remediate one that had been created by some other force.”
In this particular case, the court found “a genuine issue of material fact” existed as to whether the Town created a dangerous condition constituting a nuisance when it “installed and oriented the pickleball court in close proximity to the concrete benches.” In so doing, the court cited the following deposition testimony by the Town Recreation Director (Palluzzi) that “he decided to install pickleball lines on the practice court area at issue here”:
Palluzzi testified that Hinding Tennis painted the pickleball court lines on the court. The defendant points out that Palluzzi stated that he did not provide any direction to Hinding Tennis as to the orientation of the pickleball lines on the practice court lines. Notwithstanding, in that same deposition excerpt provided by the defendant, Palluzzi testified earlier that, at his direction, Hinding Tennis painted the pickleball court lines on the practice court at issue.
The court further noted Hinding’s deposition testimony had stated, “Hinding was instructed by Palluzzi regarding the orientation for laying the pickleball court lines.” Moreover, “even if the defendant’s employees did not construct or install the pickleball court lines at Foote Park,” the court found “the control of the public park where the court sits lies with the Town as owner of the property.” Accordingly, the court determined the Town could be held liable for “the nuisance on its property, provided there is sufficient evidence to infer that it contributed to the creation and maintenance of the alleged nuisance”:
[A] municipality may be held liable for a nuisance on property which it controls, although the immediate cause of the offensive conduct was caused by a third party who was not the defendant’s agent.
Accordingly, in this case, the court found “sufficient evidence for a jury to make this inference.” As a result, the court concluded the Town had “not demonstrated the absence of a genuine dispute of material fact” as to the positive act requirement for nuisance liability. The court, therefore, held the Town was “not entitled to summary judgment on this ground.”
Continuing Danger Element
In addition, the Defendant Town had argued summary judgment on Plaintiff’s nuisance claim was warranted because there was “no evidence that the condition complained of had a natural tendency to create danger and inflict injury and, therefore, could not subsequently be a continuing danger.”
In response, Plaintiff had claimed “a jury could conclude that the location of the bench relative to the end line (baseline) of the court constituted an inherent danger to pickleball players.” In particular, Plaintiff alleged “a dangerous condition existed for players” based upon “the concrete bench’s close proximity to the pickleball court,” a condition “created by the defendant upon installing and orienting the pickleball court in the way that it did.”
The Town, however, contended “the location and orientation of the bench and pickleball court here” lacked “the dangerous qualities necessary to conclude it had a natural tendency to create danger and inflict injury.”
As noted by the court: “The essential element of the concept of nuisance is a continuing inherent or natural tendency to create danger and inflict injury.” In this particular instance, the court found the “photographs submitted by both parties may serve as evidence of the inherent dangerous quality, as the [P]laintiff argues, they show a fixed obstruction within the playing area.”
In response, Palluzzi had testified it was “never the intention for full pickleball games to be played on the court at issue in this case.” Instead, he testified “his expectation that even though there were pickleball lines drawn on the practice court area, people would not make use of it to play pickleball.” That being said, Palluzzi had agreed that “people should not play games of pickleball (as opposed to practicing) on the pickleball court at issue given where the benches were.” In his testimony, Palluzzi, however, admitted there were “no signs directing people not to use the practice court to play pickleball.”
Based upon this testimony, the court determined: “A jury could reasonably find that the location of the benches in relation to the pickleball court had a natural tendency to create danger and inflict injury to persons playing pickleball there.” Having found evidence of a continuing danger, the court, therefore, held the Town was “not entitled to summary judgment on this ground” for nuisance liability.
Unreasonable Land-Use Element
The Town also had argued the installation and placement of the pickleball court and benches could not be “deemed unreasonable or unlawful” as required to establish nuisance liability. In response, Plaintiff argued “the question of reasonable use of the land is a question of fact, not appropriate for summary judgment.” Accordingly, Plaintiff claimed a jury should be allowed to determine “whether the configuration of the pickleball court was reasonable given the court’s close proximity to concrete benches.”
As described by the court, “the reasonableness of the defendant’s use of the land is determined through a weighing process, involving a comparative evaluation of the conflicting interests involved”:
The issue of reasonableness is a question of fact to be determined on a case by case basis, considering all the relevant circumstances, including such factors as the amount of harm caused, its foreseeability, the purpose or motive with which the act was done, and the consideration of whether the utility of the use of the land outweighed the gravity of the harm resulting.
In this case, the Town had argued that “the use of the land was reasonable” based upon “Palluzzi’s testimony that the courts were requested by members of the public.” Further, to establish the utility of the courtside bench, the Town cited “deposition testimony regarding how various individuals may use the benches, such as a place to put their belongings.”
In response, Plaintiff argued the Town’s “placement of the pickleball court lines next to the concrete benches” was unreasonable because the placement and maintenance of the area was contrary to the USA Pickleball Association’s recommendation of pickleball court sizes, particularly the playing ‘overrun’ area.” According to Plaintiff’s expert witness, “the overrun areas are the areas to the sides and behind the court that are part of the playing area of the overall or total playing surface.” In the opinion of Plaintiff’s expert, “the pickleball court did not comply with the minimum industry standard with respect to the playing” and “the concrete benches were located within the minimum industry standard playing area.”
Based upon this testimony, the court agreed with Plaintiff that “the question of reasonable use of the land raises a question of fact, not appropriate for summary judgment.” In so doing, the court noted photographs in the pretrial record indicated “the placement of the pickleball court in relation to the concrete bench, submitted by both parties demonstrate how the benches are behind participants facing their opponents while playing.”
Having found sufficient evidence for a trial jury to find all of the essential elements to establish Plaintiff’s nuisance claim, the court denied the Town’s motion for summary judgment on the issue of nuisance liability.
Assumption of Risk Defense
The Defendant Town also had moved for summary judgement, claiming the doctrine of assumption of risk barred Plaintiff’s public nuisance claim. According to the Town, Plaintiff had “assumed the risk when he entered the pickleball court.” In response, Plaintiff contended summary judgment that would effectively dismiss the nuisance claim without a trial was inappropriate because assumption of risk “ordinarily presents questions of fact,” which should be considered by a jury.
The court agreed that the assumption of risk defense is “ordinarily one of fact” for consideration in a jury trial for “a proper appraisal of a person’s conduct to determine whether it indicates that he has assumed the risk.” In so doing, the court noted a defendant asserting the assumption of risk defense “must prove that a plaintiff comprehended or as a reasonable person ought to have comprehended the nature and extent of the peril to which he was exposed and then continued to expose himself to it.”
On the other hand, the court acknowledged that summary judgment on the question of assumption of risk would be appropriate “when the only logical and reasonable conclusion to be drawn from the evidence is that the injured party, with knowledge and appreciation of the risk, voluntarily encounters it.”
In this particular instance, Plaintiff had testified: “I knew the bench was there subconsciously, but did I react to it that, oh, my God, you know, it’s there, gee, I better not go near it, no.” Based upon this testimony, the Town had argued Plaintiff was “aware of the benches near the practice court and the [P]laintiff still voluntarily decided to play, to move quickly backwards to return a shot and, thus, assumed the risk of injury.”
In response, Plaintiff claimed a trial was needed to determine whether he actually “knew and appreciated the risk” because he “had never played pickleball before” the day of his injury. In his deposition, Plaintiff had testified “he had not played tennis before at Foote Park and that it was the first day he played pickleball.” Moreover, Plaintiff testified he had “never watched others play pickleball before that day” and “he did not have an understanding of the rules of pickleball before taking the court that day,” including learning “what each line meant that day.”
In the opinion of the court: “Knowledge of the bench alone is not sufficient to show that ... [P]laintiff assumed the risk as a matter of law,” precluding further trial proceedings:
Based upon the evidence presented, reasonable minds can differ on whether the plaintiff appreciated the nature of the risk before he played pickleball. The court cannot say, as a matter of law, that the plaintiff assumed the risk, and, therefore, the motion for summary judgment on grounds that the plaintiff assumed the risk is denied.
Conclusion
Having found “no genuine issue of material fact as to whether the defendant is entitled to governmental immunity,” the court held the Town was “entitled to judgment as a matter of law as to the [P]laintiff’s negligence claim.” On the other hand, given the existence of “genuine issues of material fact,” the court denied the Town’s motion for summary judgment on Plaintiff’s nuisance claim and the Town’s assumption of risk defense. As a result, this case would be allowed to proceed to further trial proceedings on the issues of nuisance liability and the assumption of risk defense.
James C. Kozlowski, J.D., Ph.D., is an Attorney and Professor emeritus in the School of Sport, Recreation and Tourism Management at George Mason University. Archive of articles (1982 to present).