Fleuhr v. City of Cape May

• Decision Date: 30 July 1997
• Citation: 697 A.2d 182,303 N.J.Super. 481
• Parties: William FLEUHR, Plaintiff-Appellant, v. CITY OF CAPE MAY, Defendant-Respondent, and John Doe and County of Cape May, Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 481

303 N.J.Super. 481

697 A.2d 182

William FLEUHR, Plaintiff-Appellant, v. CITY OF CAPE MAY, Defendant-Respondent, and John Doe and County of Cape May, Defendants.

Superior Court of New Jersey,

Appellate Division.

Submitted April 23, 1997.

Decided July 30, 1997.

Sandler & Marchesini, Philadelphia, PA, for plaintiff-appellant (Gregory Marchesini, on the brief).

Youngblood, Corcoran, Aleli, Lafferty, Stackhouse, Grossman & Gormley, Pleasantville, for defendant-respondent (Phyllis Coletta, on the brief).

Before Judges LONG, A.A. RODRIGUEZ and CUFF.

The opinion of the court was delivered by

CUFF, J.A.D.

Plaintiff William Fleuhr broke his neck while body surfing in the ocean. He sued defendant City of Cape May for failure to supervise the activities of bathers, failure to warn bathers of the danger posed by the ocean on that day, and failure to protect plaintiff from the dangerous ocean conditions. Plaintiff appeals from the order dismissing his complaint based on the unimproved property immunity, N.J.S.A. 59:4-8, afforded by the New Jersey Tort Claims Act (Tort Claims Act), N.J.S.A. 59:1-1 to 12-3. We reverse the dismissal of plaintiff's claim predicated on negligent supervision by lifeguards stationed at the municipal beach.

On August 31, 1993, plaintiff entered the ocean at the First Avenue Beach, which was owned, operated and maintained by defendant City of Cape May. Lifeguards were on duty at this beach when plaintiff entered the water. He alleges that the ocean was turbulent due to Hurricane Emily and that the water conditions created an unreasonable risk of harm to him. He contends that defendant was under a duty to provide a safe place for plaintiff to swim and that defendant had undertaken to supervise the beach and adjacent ocean water by stationing lifeguards at the First Avenue Beach. He contends that defendant breached its duty to provide a safe place for him to swim by permitting him and others to enter the ocean at that place on that day. He further contends that defendant breached the duty owed to him by failing to warn him of the dangerous surf conditions. As a direct result of the failure to warn him of the dangerous conditions and the negligent supervision by the assigned lifeguards, he alleges that he was knocked over by a strong wave and fractured several cervical vertebrae.

Defendant denied the allegations of the complaint and asserted that it was immune from suit pursuant to the unimproved property immunity afforded by the Tort Claims Act, N.J.S.A. 59:4-8. In reliance on this immunity, defendant moved for summary judgment, which was granted. In his written opinion, the motion judge reasoned that the immunity granted under N.J.S.A. 59:4-8 precludes this action because "the injury was caused exclusively by the action of the ocean."

Our review must proceed in accordance with the general analytical approach of the Tort Claims Act and then with specific reference to the applicable statutory provisions. Troth v. State, 117 N.J. 258, 265-66, 566 A.2d 515 (1989). Generally, we must recognize that the Tort Claims Act reestablishes public entity immunity from suit unless the Act declares that a public entity or public employee may be liable. N.J.S.A. 59:2-1a; Manna v. State, 129 N.J. 341, 346, 609 A.2d 757 (1992); Troth, supra, 117 N.J. at 266, 566 A.2d 515. Moreover, any liability established by the Tort Claims Act is subordinate to or "trumped" by any immunity recognized by the Act. N.J.S.A. 59:2-1b; Tice v. Cramer, 133 N.J. 347, 356, 627 A.2d 1090 (1993).

There are three provisions of the Tort Claims Act which affect this case: N.J.S.A. 59:2-7, N.J.S.A. 59:3-11 and N.J.S.A. 59:4-8. N.J.S.A. 59:2-7 provides:

A public entity is not liable for failure to provide supervision of public recreational facilities; provided, however, that nothing in this section shall exonerate a public entity from liability for failure to protect against a dangerous condition as provided in [ N.J.S.A. 59:4-1 to 4-10].

N.J.S.A. 59:3-11 is the public employee counterpart to N.J.S.A. 59:2-7; it provides:

A public employee is not liable for the failure to provide supervision of public recreational facilities. Nothing in this section exonerates a public employee for negligence in the supervision of a public recreational facility.

The Attorney General's Task Force Comments to these sections note that the immunity conferred for failure to supervise a public recreational facility represents a policy determination that public entity managers must remain free to conclude, without threat of liability, that supervision of public recreational facilities will not be provided. Comment on N.J.S.A. 59:2-7. On the other hand, "a public employee (and hence a public entity) is not exonerated for negligence once he undertakes to supervise the facility." Comment on N.J.S.A. 59:3-11.

By contrast, N.J.S.A. 59:4-8 provides:

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.

The Task Force Comment to this section observes that this section

reflect[s] the policy determination that it is desirable to permit the members of the public to use public property in its natural condition and that the burdens and expenses of putting such property in a safe condition as well as the expense of defending claims for injuries would probably cause many public entities to close such areas to public use. In view of the limited funds available for the acquisition and improvement of property for recreational purposes, it is not unreasonable to expect persons who voluntarily use unimproved public property to assume the risk of injuries arising therefrom as part of the price to be paid for benefits received.

No appellate court of this State has directly interpreted the applicability of the unimproved property immunity of N.J.S.A. 59:4-8 to a guarded beach. There have been cases which raised the issue of municipal negligence for negligent supervision of beaches but each has been disposed by the application of other Tort Claims Act provisions. For example, in Stempkowski v. Borough of Manasquan, 208 N.J.Super. 328, 506 A.2d 5 (App.Div.1986), plaintiff alleged that the failure to provide lifeguards at an ocean beach created a dangerous condition of public property. We upheld the dismissal of plaintiff's complaint, citing Sharra v. City of Atlantic City, 199 N.J.Super. 535, 540, 489 A.2d 1252 (App.Div.1985), and explaining that a dangerous condition refers to the physical condition of the property itself and not to the activities conducted on the property. Stempkowski, supra, 208 N.J.Super. at 331-32, 506 A.2d 5. In dicta, we observed that plaintiff's claim was also barred by N.J.S.A. 59:3-11 because plaintiff's claim rested on the municipality's failure to provide lifeguard services rather than the negligent provision of those services. Stempkowski, supra, 208 N.J.Super. at 332, 506 A.2d 5. This passage suggests that the outcome of plaintiff's case may have been different if she had alleged that lifeguards were present and had negligently performed their protective functions. On the other hand, the unimproved property immunity of N.J.S.A. 59:4-8 was not raised.

In Burroughs v. City of Atlantic City, 234 N.J.Super. 208, 560 A.2d 725 (App.Div.), certif. denied, 117 N.J. 647, 569 A.2d 1345 (1989), we affirmed the dismissal of a complaint founded in part on an allegation of negligent supervision of beach activities by lifeguards on an ocean beach. However, Burroughs does not assist resolution of the issue presented in this case because plaintiff's activities occurred on an unprotected portion of the beach. We rejected plaintiff's position that liability should attach because the lifeguards occasionally ventured onto the unprotected beaches and warned people to swim only in the protected area. We reasoned that their activity manifested a determination to provide lifeguard services only in a specific area. However, we also suggested that the outcome may have been different if plaintiff had relied on the lifeguard's warning and expected that his activities would be monitored and his safety assured. We said:

At best, plaintiff's proofs in this case establish only general supervision and policing by the lifeguards. The lifeguards' warnings to sunbathers on beach # 2 and # 3, and plaintiff's group in particular, can be reasonably viewed only as communications which both limited and defined the scope of their supervisory undertaking. Plaintiff does not allege that the warning from lifeguard Ruley was such that plaintiff, or any member of his group, relied upon it and expected that their activities would be monitored and their safety assured by defendant lifeguards.

[Id. at 222, 560 A.2d 725.]

Once again, however, there was no discussion of the unimproved property immunity of N.J.S.A. 59:4-8.

The only case by a state court which addresses the relationship between public entity or employee liability for negligent supervision of a beach and the unimproved public property immunity is Kleinke v. City of Ocean City, 163 N.J.Super. 424, 394 A.2d 1257 Law Div.1978), overruled in part, Sharra, supra, 199 N.J.Super. 535, 489 A.2d 1252. In that case, the motion judge denied the City's motion for summary judgment on two grounds. First, the motion judge reasoned that a body surfer riding three- to six-foot waves amidst numerous bathers created a dangerous condition of public property ( N.J.S.A. 59:4-2). Kleinke, supra, 163 N.J.Super. at 430, 394 A.2d 1257. Second, he concluded that liability for negligent supervision of a beach did not implicate the reasons for immunizing a public entity for injuries occurring on unimproved public property. Id. at 433, 394 A.2d 1257. Sharra, supra, overruled that portion of Kleinke which held that a body surfer in three- to six-foot waves amidst many bathers is a...