July 2023 - Parks & Recreation - 31

cerpt 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
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July 2023 - Parks & Recreation

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