Diodato v. Camden County Park Commission

• Decision Date: 11 August 1978
• Citation: 392 A.2d 665,162 N.J.Super. 275
• Parties: Richard A. DIODATO et al., Plaintiff, v. CAMDEN COUNTY PARK COMMISSION and the County of Camden, Defendants.
• Court: New Jersey Superior Court

Page 275

162 N.J.Super. 275

392 A.2d 665

Richard A. DIODATO et al., Plaintiff, v. CAMDEN COUNTY PARK COMMISSION and the County of Camden, Defendants.

Superior Court of New Jersey, Law Division.

Aug. 11, 1978.

William D. McGovern, Freehold, for plaintiff (Tanner & McGovern, Freehold, attorneys).

Alan P. Bruce, Cherry Hill, for defendant Camden County Park Com'n (Montano, Summers, Mullen & Manuel, Cherry Hill, attorneys).

Elliott Yampell, Haddonfield, for defendant County of Camden (Yampell & Cosentino, Haddonfield, attorneys).

CORUZZI, J. S. C.

On September 21, 1974, plaintiff Richard Diodato attended a company picnic at the Cooper River Park. This park is a component of the Camden County Park Commission.

On the date in question plaintiff was engaged in various activities, including a softball game. This game was played on a regular ball field in the park which required a reservation and nominal fee paid by plaintiff's employer. Later in the afternoon the activity shifted to a picnic area near a pavilion known as "Saginaw Lodge." Although plaintiff's employer had secured exclusive use of this area for the day by way of reservation, no fee was required.

Sometime around 4:00 p. m. plaintiff and a coemployee participated in some sort of footrace to the edge of the Cooper River, which is located in the center of the park. This race culminated in a dive into the waters of the Cooper River and tragedy.

Plaintiff, who had never been to this park previously apparently dove enthusiastically into the river without previously observing its condition. In so doing he struck a partially submerged 55-gallon, blue-painted oil drum of the type the Park Commission utilizes for trash cans. The resulting impact knocked plaintiff unconscious. It was later ascertained that he sustained a fracture of his spinal column at C-5. Diodato is presently a quadriplegic as a result of these injuries.

Plaintiff's various allegations against defendant Camden County Park Commission can be distilled into three major theories. First, that the Commission should have posted "no swimming" signs in the area where the accident occurred and distributed some sort of literature warning of the prohibition on swimming. Second, that the Commission did not adequately maintain the premises in question in that it failed to remove the barrel from the river. Third that the Park Commission did not promulgate or enforce a policy of prohibition with regard to swimming.

Defendant Park Commission now moves for summary judgment. It asserts that it had no duty with regard to the above allegations by virtue of the immunity provided under the Landowners Liability Act, N.J.S.A. 2A:42A-2 Et seq., and the Tort Claims Act, N.J.S.A. 59:1-1 Et seq. Plaintiff opposes this motion and further moves to strike the defenses raised by the Park Commission under those statutory provisions.

The legal contentions of both parties have been most ably set forth in the lengthy and learned memorandum supplied. These papers raise many issues with regard to the law as it should apply herein and this court will attempt to address each.

At the very outset it must be noted that plaintiff advances two arguments which, if accepted, would defeat the very basis of his adversary's motion. The first of these appears to be that the Tort Claims Act does not apply here because the premises involved were not state-owned. The second argument is that the Tort Claims Act provides a comprehensive and Exclusive statement of a public entity's right to immunity.

The meat of defendant's argument for summary judgment on the provisions of the Tort Claims Act is found in N.J.S.A. 59:4-8, 9. Those sections read as follows:

N.J.S.A. 59:4-8. Neither 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. (Emphasis supplied)

N.J.S.A. 59:4-9. Neither a public entity nor a public employee is liable for any injury caused by a condition of the unimproved and unoccupied portions of the tidelands and submerged lands, and the beds of navigable rivers, streams, lakes, bays, estuaries, inlets and straits Owned by the State. (Emphasis supplied)

Clearly these two sections are intended to apply to two different situations. This is borne out by the titles given to each. N.J.S.A. 59:4-8 is entitled "Condition of unimproved public property immunity," and N.J.S.A. 59:4-9 "Unimproved and unoccupied portions of certain lands immunity." The first section outlines immunity given a "Public entity " when injury is caused by certain conditions of unimproved public property. The second section provides blanket immunity for injury caused by a condition of certain enumerated waterways and lands Owned by the State.

To the extent that N.J.S.A. 59:4-9 explicitly applies to state-owned premises, plaintiff's contention is well founded. However, it is clear that a fair reading of N.J.S.A. 59:4-8 would indicate its application to public entitles generally. This position is supported by the fact that the Tort Claims Act as a whole has often been applied to public entities other than the State and that the phrase "public entity," without further limitation, is intended to apply to "the State, and any county, municipality, district, public authority, public agency, and any other political subdivision or public body in the State." N.J.S.A. 59:1-3.

As to plaintiff's contention that the Tort Claims Act provides the exclusive grounds for a public entity's right to immunity, this court feels that N.J.S.A. 59:2-1(b) and Trimblet v. State, 156 N.J.Super. 291, 383 A.2d 1146 (App.Div.1977), are dispositive authority for applying the provisions of the Landowner's Liability Act to public entities, where warranted by the facts. N.J.S.A. 59:2-1(b) specifically reserves to public entitles any defenses that are available to private persons. In Trimblet the Appellate Division specifically held that the Tort Claims Act does not prevent a public entity from seeking Additional or Alternative grounds for immunity in the provisions of the Landowners Liability Act.

Before proceeding to the issues that require detailed analysis of the two statutory defenses raised by the Park Commission, it should be noted that plaintiff's contention that the Park Commission was negligent in failing to post "no swimming" signs and in failing to enforce its prohibition of swimming in the river, can be dealt with rather quickly.

Plaintiff contends that the Park Commission had knowledge of at least 56 occasions of unauthorized swimming in the Cooper River between the years 1973 and 1975. Plaintiff asserts that this knowledge never encouraged any action by defendant to enforce its prohibition or to advise visitors that such a prohibition existed.

According to the factual statements supplied by the parties, the Park Commission, did post numerous "no swimming" signs during a period approximately 12 years prior to the incident herein. Since that time there have been none, however. This does not give the court too much concern because the provisions of N.J.S.A. 59:2-4 apply directly to bar the assertion of such negligence on the part of the public entity. That section of the Tort Claims Act reads as follows:

A public entity is not liable for any injury caused by adopting or failing to adopt a law or By failing to enforce any law. (Emphasis supplied)

Clearly this section extends immunity to the Park Commission from plaintiff's allegation that his injury was proximately caused by that defendant's failure to enforce (by way of signs, literature, police action, etc.) its regulation prohibiting swimming in the Cooper River.

All further issues must then be considered as pertaining to plaintiff's contention that the Park Commission acted negligently in allowing a barrel to stray into the river and/or allowing it to remain there for a period of time up to and including the time of the injury which forms the basis of this suit.

Defendant argues that it must be exempted from such liability by the provisions of N.J.S.A. 2A:42A-2 Et seq. Known more commonly as the Landowner's Liability Act that legislation provides that landowners owe no duty to keep their premises safe for use by others in connection with sport and recreational activity or to give warning of any hazardous condition of the land in connection with its use for any such activity. The act goes further to provide that permission to use the premises for recreational activity does not equate with assurance that the premises are safe or constitute the person so using the premises an invitee.

Defendant cites a number of cases in support of its position that it is exempted from liability by the provisions of N.J.S.A. 2A:42A-2 Et seq.: Harrison v. Middlesex Water Co. and Clark Tp., 158 N.J.Super. 368, 386 A.2d 405 (App.Div.1977); Magro v. Vineland, 148 N.J.Super. 34, 371 A.2d 815 (App.Div.1977); Odar v. Chase Manhattan Bank, 138 N.J.Super. 464, 351 A.2d 389 (App.Div.1976) certif. den. 70 N.J. 525, 361 A.2d 540 (1976). In so doing it maintains that the act is applicable to nonresidential land of a rural or semi-rural nature whereon the enumerated recreational activities are conducted. Defendant asserts that Cooper River Park is part of the "true outdoors" and therefore falls within the holding of the cited cases.

The Park Commission also advances a defense under N.J.S.A. 59:4-8, referred to earlier. In this regard defendant stresses the natural, unimproved character of the parkland as a whole. It also cites two cases from a sister state with similar statutory provisions for its contention that the existence of improvements such as a parking lot, a shelter, fireplaces and toilet facilities, do not sufficiently change the character of the land so as to take it outside the scope of the statute. Fuller v. State, 51 Cal.App.3d 926, 125 Cal.Rptr. 586 (D.Ct.App.1975); Rendak v....