Kowalsky v. Long Beach Tp.

• Decision Date: 26 December 1995
• Docket Number: 95-5078,Nos. 95-5067,s. 95-5067
• Parties: Roman KOWALSKY, Appellant, v. LONG BEACH TOWNSHIP; Department of Public Works of Long Beach Township; Department of Public Safety of Long Beach Township; Long Beach Township Beach Patrol; Long Beach Township Spray Beach Patrol; John Does, 1 through 5, Jointly, Severally and in the Alternative; Donald Meyers; Jon Camp; Sean Adams; Patty O'Hara; Michael Gaetano; Don Williams. Gary S. PETRILLO, Individually, Lois Petrillo, Conservator of the Estate and person of Gary S. Petrillo, and individually, Jill S. Petrillo, Appellants, v. BOROUGH OF SURF CITY, A Municipality of the State of New Jersey, Leonard T. Connor, Mayor, John Does "A, B, C," Jane Does "D, E, F," Elected and Appointed Officials of the Borough of Surf City, these being fictitious names, their actual names not known to the plaintiffs, Mark Occhipinti, Patricia D'Ambrosio, Fin Lealin, John Does "G, H, I," Lifeguards, Jane Does "J, K, L," Lifeguards employed by the Borough of Surf City, and correct name of Lealin and the actual names of the fictitious John Does G, H, I and Jane Does J, K, L, not being known to the plaintiffs at this time, Department of Recreation of Surf City, Surf City Beach Patrol, Department of Public Works of Surf City, Department of Law & Public Safety of Surf City.
• Court: U.S. Court of Appeals — Third Circuit

Page 385

72 F.3d 385

Roman KOWALSKY, Appellant, v. LONG BEACH TOWNSHIP; Department of Public Works of Long

Beach Township; Department of Public Safety of Long Beach

Township; Long Beach Township Beach Patrol; Long Beach

Township Spray Beach Patrol; John Does, 1 through 5,

Jointly, Severally and in the Alternative; Donald Meyers;

Jon Camp; Sean Adams; Patty O'Hara; Michael Gaetano; Don

Williams.

Gary S. PETRILLO, Individually, Lois Petrillo, Conservator of the Estate and person of Gary S. Petrillo, and individually, Jill S. Petrillo, Appellants, v. BOROUGH OF SURF CITY, A Municipality of the State of New

Jersey, Leonard T. Connor, Mayor, John Does "A, B, C," Jane

Does "D, E, F," Elected and Appointed Officials of the

Borough of Surf City, these being fictitious names, their

actual names not known to the plaintiffs, Mark Occhipinti,

Patricia D'Ambrosio, Fin Lealin, John Does "G, H, I,"

Lifeguards, Jane Does "J, K, L," Lifeguards employed by the

Borough of Surf City, and correct name of Lealin and the

actual names of the fictitious John Does G, H, I and Jane

Does J, K, L, not being known to the plaintiffs at this

time, Department of Recreation of Surf City, Surf City Beach

Patrol, Department of Public Works of Surf City, Department

of Law & Public Safety of Surf City.

Nos. 95-5067, 95-5078.

United States Court of Appeals,

Third Circuit.

Argued Sept. 12, 1995.

Decided Dec. 26, 1995.

John A. Miller (argued), Richard J. Sexton, Kenney & Kearney, Cherry Hill, New Jersey, for appellant, Roman Kowalsky.

John J. Barry (argued), Madeline E. Cox, Barry & McMoran, Newark, New Jersey, for appellants, Gary S. Petrillo, Individually, Lois Petrillo, Conservator of the Estate and person of Gary S. Petrillo, and individually, Jill S. Petrillo.

Michael J. McKenna (argued), Ronald E. Hoffman, Hiering, Hoffman & Gannon, Toms River, New Jersey, for appellees.

Before: MANSMANN, SCIRICA and NYGAARD, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In these diversity suits, plaintiffs Roman Kowalsky and Gary Petrillo appeal the district court's grants of summary judgment on their claims for damages arising from tragic injuries suffered while they were swimming at New Jersey beaches. ¹ Because we agree with the district court that under the New Jersey Tort Claims Act, defendants, municipal entities and municipal employees, are entitled to immunity from liability as a matter of law, we will affirm.

I.

A.

During mid-afternoon on September 2, 1990, Roman Kowalsky entered the ocean to go swimming at Spray Beach in Long Beach Township, New Jersey, an area protected at the time by municipal lifeguards. After swimming and "bodysurfing" in the water for twenty minutes, he decided to return to the beach. "Bodysurfing" to shore, he was caught between two waves and driven into the sand. ² Although a lifeguard quickly reached Kowalsky and summoned an ambulance, he had already suffered a broken neck, resulting in permanent paralysis below the waist.

Although Kowalsky said that when he arrived at the beach the surf looked normal and no different from other visits, he contends the water conditions were hazardous, resulting from Hurricane Gustav, 1000-1200 miles offshore. He maintains that because of the hurricane, an unusually high number of rescues occurred over that Labor Day weekend. Both the lifeguard on duty and the beach supervisor testified the weather was sunny and dry, the surf normal for that time of year and there was no reason to close the beach or prohibit bodysurfing.

Kowalsky's amended complaint alleged that defendants, various municipal entities and certain municipal employees: (1) negligently supervised the beach; (2) failed to warn of a dangerous condition; and (3) failed to properly train beach patrol personnel. Defendants denied negligence and asserted immunity under the New Jersey Tort Claims Act. N.J.Stat.Ann. Sec. 59:1-1 et seq. (West 1992 & 1995 Supp.). The district court granted summary judgment to all defendants. ³

B.

On a sunny afternoon on September 1, 1990, Gary Petrillo was swimming and "bodysurfing" in the ocean at the 12-14th Street Beach in Surf City, New Jersey. After forty minutes he became cold and decided to head ashore. While hip-deep in the water he was struck from behind by a wave that knocked him face first into the sand. Realizing he could not move, he remained lying on his back in the water. The attending lifeguard called for assistance and Petrillo was taken by ambulance and helicopter to a hospital. As a result of his injury Petrillo remains paralyzed from the neck down and has lost the power of speech.

Petrillo contends that Hurricane Gustav, 1000-1200 miles offshore, had created turbulent water along the New Jersey coast, resulting in hazardous conditions. He maintains that despite knowing the danger, the beach patrol failed to warn the swimmers or close the beaches. Petrillo's complaint alleged that his accident was caused "jointly, severally or in the alternative by the negligence, recklessness and carelessness" of defendants, various municipal entities and employees of these entities. His mother, Lois Petrillo, and his sister, Jill Petrillo, alleged emotional distress stemming from the accident. Defendants denied negligence and asserted immunity under the New Jersey Tort Claims Act. The district court granted summary judgment to all defendants.

II.

The central issue presented by these appeals is the nature and scope of immunity conferred upon defendant municipal entities and municipal employees by New Jersey's Tort Claims Act, which governs damage claims against public entities and public employees. In particular dispute is N.J.S.A. 59:4-8, which confers immunity from liability for injuries caused by a condition of unimproved public property. Defendants assert they are entitled to immunity under this provision. Kowalsky and Petrillo maintain the public property at issue is "improved," making N.J.S.A. 59:4-8 immunity inapplicable. In the alternative, they contend that N.J.S.A. 59:4-8 does not bar their claims for negligent supervision and failure to warn.

In adjudicating a case under state law, we must predict how the highest court of that state would decide the relevant legal issues. See Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1049 (3d Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 440, 126 L.Ed.2d 373 (1993). Our review of the district court's determination of state law is de novo. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991); see also Acierno v. Cloutier, 40 F.3d 597, 609-10 (3d Cir.1994) (in banc). Consequently, we turn to the Tort Claims Act as well as New Jersey case law to evaluate the claims raised in this appeal.

III.

The New Jersey Tort Claims Act sets forth the parameters of immunity for government officials and government acts. The introductory section of the Act declares:

[We] ... recognize[ ] the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity. On the other hand [we] ... recognize[ ] that while a private entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done. Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein. All of the provisions of this act should be construed with a view to carry out the above legislative declaration.

N.J.S.A. 59:1-2.

As part of the Tort Claims Act, the New Jersey Legislature promulgated N.J.S.A. 59:4-8, which provides:

[n]either a public entity nor a public employee is liable for an injury caused by a condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.

Both the comment to N.J.S.A. 59:4-8 and the New Jersey Supreme Court make clear that "the term unimproved public property should be liberally construed." Troth v. State, 117 N.J. 258, 566 A.2d 515, 518 (1989); see also Comment to N.J.S.A. 59:4-8 & 9 ("it is intended ... that the term unimproved public property should be liberally construed"). Underlying these determinations is the New Jersey Legislature's policy judgment that the public should be permitted to use unimproved public property in its natural condition, but under the cloak of immunity. Otherwise, the burdens and expenses of putting such property in safe condition as well as the expense of defending claims for injuries might cause public entities to close these areas to public use altogether. See Troth, 566 A.2d at 519-20; Report of the Attorney General's Task Force on Sovereign Immunity (May 1972).

In its clearest statement of the standard guiding a determination of whether property remains "unimproved" under N.J.S.A. 59:4-8, the New Jersey Supreme Court explained "[p]ublic property is no longer 'unimproved' when there has been substantial physical modification of the property from its natural state, and when the physical change creates hazards that did not previously exist and that require management by the public entity." Troth, 566 A.2d at 521.

A.

Our starting point for determining whether the properties at issue here remain "unimproved" is to identify the relevant properties. In Troth, the plaintiff's injury occurred after falling over a spillway in a boat on Union Lake, which lies at the southern tip of a wildlife-management area belonging to New Jersey. The lake was created by a dam built in the nineteenth century, which allows excess water to flow over a spillway into an adjacent river. The plaintiff in Troth alleged the conditions created by the dam and the spillway...