Burroughs v. City of Atlantic City

• Decision Date: 28 June 1989
• Citation: 560 A.2d 725,234 N.J.Super. 208
• Parties: Earl BURROUGHS, Plaintiff-Appellant, v. CITY OF ATLANTIC CITY, Teroy Collins, Edward Thomas Porter, Bill Baxter, Michael Ruley, John Does(s), A Fictitious Name, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 208

234 N.J.Super. 208

560 A.2d 725

Earl BURROUGHS, Plaintiff-Appellant, v. CITY OF ATLANTIC CITY, Teroy Collins, Edward Thomas Porter,

Bill Baxter, Michael Ruley, John Does(s), A

Fictitious Name, Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued April 4, 1989.

Decided June 28, 1989.

William M. Honan, for plaintiff-appellant (Horn, Kaplan, Goldberg, Gorny & Daniels, attorneys; Jack Gorny, of counsel; William M. Honan, Atlantic City, on the brief)

James P. Savio, for defendants-respondents (Savio, Reynolds & Drake, attorneys; James P. Savio, of counsel; Phyllis Coletta Boyle, Absecon, on the brief).

Before Judges LONG, MUIR, Jr., and KEEFE.

The opinion of the court was delivered by

KEEFE, J.S.C. (temporarily assigned).

Plaintiff Earl Burroughs appeals from a summary judgment order dismissing his personal injury complaint against the City of Atlantic City (City) and four City lifeguards, Teroy Collins, Edward Thomas Porter, Bill Baxter and Michael Ruley. Plaintiff alleged two grounds for recovery: maintenance of a dangerous condition ( N.J.S.A. 59:4-2), and negligent supervision of the Atlantic City boardwalk and beach by the defendant lifeguards. ( N.J.S.A. 59:3-11). Plaintiff claims that there were genuine issues of fact presented to the trial judge which precluded summary judgment. We disagree and affirm.

In his complaint plaintiff contended that on June 12, 1983, he "dove from the boardwalk into the Atlantic ocean," hit his head on the ocean bottom, broke his neck, and was rendered a permanent quadriplegic. Plaintiff's primary allegation was that the dangerous condition to "people using the Boardwalk" was the "absence of effective warnings" (emphasis added) against diving from the boardwalk. As to the liability of the defendant lifeguards, plaintiff simply alleged that they negligently performed their supervision obligations.

The beach and boardwalk area in question span the distance between Melrose and Adriatic Avenues in Atlantic City. Wooden bulkheads, extending as jetties into the ocean, divide the area into three beaches, identified as beaches # 1, # 2 and # 3. At the time of the accident, a lifeguard stand and lifeguard The location of the boardwalk in this area is such that both the high water and low water marks fall to the land side of the boardwalk. At times bathers took advantage of this configuration and dove from the boardwalk into the ocean. However, on and prior to June 12, 1983, diving from the boardwalk was prohibited by ordinance. The City had posted signs on light stanchions along the boardwalk which read:

shack were located on beach # 1. Beaches # 2 and # 3 were located south of beach # 1. There were signs in Spanish and English on beaches # 2 and # 3 stating that they were "Unprotected", which meant that there was no lifeguard on duty on either beach. Nonetheless, it [560 A.2d 727] was the practice of the lifeguards stationed on beach # 1 to periodically patrol the unprotected beaches and warn those who strayed into the water that such activity should take place on beach # 1.

NO

DIVING

FROM

BOARDWALK

DEPT POLICE

Although not permitted, diving from the boardwalk happened on an "extremely frequent," although not daily basis during the summer. The lifeguards were aware of this and, consequently, it was their "normal habit and custom to try to get [the person] to stop that activity." If the person performing the activity did not heed the lifeguard's warning, a police officer would be summoned to assist.

On the day of the accident, plaintiff, a resident of Atlantic City for several years, went to the beach with other adult members of his family and several children. Plaintiff testified that he dove from the boardwalk on other occasions and had seen other people do the same thing. He claims to have never seen the posted signs.

Defendant Ruley saw plaintiff's group on beach # 3. He testified that members of the group were drinking and smoking marijuana. However, Ruley did not testify that the plaintiff was either drinking or smoking marijuana, and plaintiff denied that he was drunk at the time of the accident. Ruley warned the group that "drinking was not allowed on the beach," and advised them "not to go into the water for their own safety." Following this encounter, Ruley indicated that he "continue[d] to keep an eye on these people" after he returned to the nearby protected beach. Ruley testified that this encounter occurred approximately an hour before plaintiff's accident. ¹

According to plaintiff and his son, plaintiff walked into the water to check its depth. Plaintiff said that the water was "up to around my neck." He suggested to his brother that they dive from the boardwalk. Plaintiff then walked onto the boardwalk and made his first and only dive of that day, resulting in his injuries.

Defendant Ruley testified that as he and defendant Baxter were "walking down the beach ..., because children were on the ... beach," he saw plaintiff dive from the boardwalk. At the time he saw plaintiff, one of plaintiff's feet was still in contact with the top railing. Ruley and Baxter reached plaintiff within 10 to 12 seconds and pulled him from the water. Before the incident involving the plaintiff occurred, the lifeguards had not observed anyone diving from the boardwalk.

The trial judge found that the proofs presented on the summary judgment motion did not establish a "dangerous condition" under N.J.S.A. 59:4-2. Plaintiff contends that the facts presented a jury question.

N.J.S.A. 59:1-2 provides that "public entities shall only be liable for their negligence within the limitations of this act and only in accordance with the fair and uniform principles established herein." The Comment to N.J.S.A. 59:2-1 states in part that it is "anticipated that the courts will realistically interpret both the statutory and common-law immunities in order to effectuate their intended scope." Furthermore, the Comment to N.J.S.A. 59:4-2, upon which the City's defense is predicated, includes the following statement: "this section recognizes the difficulties inherent in a public entity's responsibility for maintaining its vast amounts of public property." In view of this legislative policy, it has long been recognized that the trial judge is required to make a "preliminary determination as to whether the alleged condition is in fact a dangerous one within the meaning of the statute. Otherwise the legislatively-decreed restrictive approach to liability would be illusory." Polyard v. Terry, 160 N.J.Super. 497, 508, 390 A.2d 653 (App.Div.1978), aff'd o.b. 79 N.J. 547, 401 A.2d 532 (1979).

N.J.S.A. 59:4-2 provides:

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a foreseeable risk of the kind of injury which was incurred....

The term "dangerous condition" is defined in N.J.S.A. 59:4-1(a) as:

[a] condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.

Plaintiff contends that the dangerous condition for purposes of liability is "the proximity of the Boardwalk over the shallow Ocean which was sufficiently opaque to deprive an observer from the Boardwalk of the ability to see the bottom, coupled with its use as diving platform." Plaintiff's expert opined that the posted warning was inadequate because: 1) it was not located in a way so as to gain the attention of the potential diver; 2) it did not convey the nature of the hazard posed by particular conduct; 3) it did not warn of the hazard with the intensity commensurate with the outcome; 4) it did not explain how to act to avoid injury; and 5) it did not explain the consequences of failing to conform or obey the admonition. The expert said that the warning should read:

                DANGER
                SHALLOW WATER
                NO DIVING
                DIVING CAN CAUSE SERIOUS INJURIES
                

The expert suggested that the sign should also contain "a symbol for diving surrounded by the international red circle with a slash indicating that such activity is prohibited."

The question presented by the facts in this case is one of first impression. We have never before been called upon to decide a case under N.J.S.A. 59:4-2 where plaintiff was injured while using public property for an activity that was specifically prohibited by the public entity but, nonetheless, was arguably foreseeable. The definition of "dangerous condition" contained in N.J.S.A. 59:4-1(a) has given rise to substantial litigation. In most of the cases, there was no question that plaintiff was using the public property for a permitted purpose ("reasonably foreseeable"), and, in only one case, Speziale v. Newark Housing Auth., 193 N.J.Super. 413, 474 A.2d 1085 (App.Div.1984) discussed infra., has the "due care" phrase in the definition been addressed. Although no prior case is clearly dispositive of this one, a review of some prior decisions provides guidance.

In Speaks v. Jersey City Housing Auth., 193 N.J.Super. 405, 474 A.2d 1081 (App.Div.1984) cert. den. 97 N.J. 655, 483 A.2d 177 (1984), the infant plaintiff, while playing in a common yard outside the rear window of the apartment building where he resided in defendant's housing project, was struck by a bicycle frame thrown from the stairwell window. The defect in the property was the missing window frame which had it been present would have prevented the bicycle from fitting through the opening. The novel question presented to the court in that case was not plaintiff's "due care" or his "foreseeable" use of the property, but rather, whether the foreseeable misconduct of a third party could combine with the defective condition of a public building to create a dangerous condition for which the...