July 2023 - Parks & Recreation - 32

LAW REVIEW
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
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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
July 2023 - Parks & Recreation

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