Levin v. County of Salem

• Decision Date: 15 July 1993
• Citation: 133 N.J. 35,626 A.2d 1091
• Parties: Richard and Darlene LEVIN, husband and wife; and Darlene Levin, As Guardian Ad Litem for her minor children, Louis Levin and Julia Levin, Plaintiffs-Appellants, v. COUNTY OF SALEM, County of Cumberland and City of Vineland, Defendants-Respondents, and Township of Pittsgrove, Defendant.
• Court: New Jersey Supreme Court

Page 35

133 N.J. 35

626 A.2d 1091

Richard and Darlene LEVIN, husband and wife; and Darlene Levin, As Guardian Ad Litem for her minor children, Louis Levin and Julia Levin Plaintiffs-Appellants, v. COUNTY OF SALEM, County of Cumberland and City of Vineland Defendants-Respondents and Township of Pittsgrove, Defendant.

Supreme Court of New Jersey.

Argued Jan. 19, 1993.

Decided July 15, 1993.

William G. Wright, Bellmawr, for plaintiffs-appellants (Farr, Lyons, Burke, Gambacorta & Wright, attorneys).

Gerard W. Quinn, Atlantic City, for defendant-respondent County of Salem (Cooper, Perskie, April, Niedelman, Wagenheim & Levenson, attorneys; Louis Niedelman, of counsel).

David J. Eddowes, Bridgeton, for defendant-respondent County of Cumberland (Davidow, Sherman, Eddowes & Geiger, attorneys).

L. Patricia Sampoli, Atlantic City, for defendant-respondent City of Vineland (Horn, Goldberg, Gorny, Daniels, Paarz, Plackter & Weiss, attorneys).

Jerry Fischer, Sr. Deputy Atty. Gen., for amicus curiae, Atty. Gen. of New Jersey (Robert J. Del Tufo, Atty. Gen., attorney, Joseph L. Yannotti, Asst. Atty. Gen., of counsel).

The opinion of the Court was delivered by

O'HERN, J.

The question in this case is whether the unauthorized use of public property for private recreational activities thereby puts the property "in dangerous condition" under N.J.S.A. 59:4-2 of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to :12-3 (the Act or the New Jersey Act), when the recreational activities themselves are risky and pose danger to the participants. In this case a man dove from a county bridge into shallow tidal waters, suffering a paralyzing injury. We conclude that however tragic the accident, its cause was not the condition of the bridge but the dangers of unsupervised recreational activity for which there is no public-entity liability under the Act.

I

For purposes of this appeal, we accept the statement of facts set forth in plaintiff's briefs. (For convenience, we refer only to the injured plaintiff, Richard Levin. The claims of the other plaintiffs are derivative.) On the evening of July 23, 1987, Levin and two companions stopped at the Garden Road Bridge (the bridge) between Pittsgrove and Vineland to swim in the Maurice River. They had arrived by automobile from the Cumberland County side of the bridge and had parked in the turnoff on the north side of the bridge, the Salem County side.

Many others were at or near the bridge on that evening. For decades local residents had used the bridge and the surrounding area along the Maurice River for swimming and diving. This local "swimming hole" spans the border between Vineland (Cumberland) on the east and Pittsgrove (Salem) on the west. When Levin arrived at the bridge, several people were diving from the bridge into the river, seven feet below the bridge span. After observing the divers, Levin went to the north side of the bridge. When he dove into the river, his head struck a submerged sandbar. As a result, he sustained a fracture of the sixth cervical vertebra and was rendered a quadriplegic.

The counties of Cumberland and Salem jointly own, maintain, and control the Garden Road Bridge and are responsible for the regulation of activities on or near it. At the site of the bridge, the Maurice River passes through a picturesque woodland area. Gently sloping banks descend to the river on each side, and a sandy bathing beach exists adjacent to it. The site has been used by the public as a local swimming hole and for other water-related activities, such as sunbathing, fishing, canoeing, swimming, and diving from the river bank. Levin, in fact, had frequented the site as a child, and his family had enjoyed several outings there. The present bridge was constructed to replace the steel truss bridge that had been on the site for many years. It serves a rural, two-lane road. The bridge has a parapet, or low wall, at its edge, separated from the road by a wide sidewalk. Visitors to the bridge often used the parapet, which is twenty-seven inches high and twelve inches wide, as a diving platform.

The record contains evidence that defendants knew that the area surrounding the Garden Road Bridge was used as a recreational site and that the bridge itself was used as a diving platform. The artificial bathing beach, parking areas, footpaths, canoe-rental signs, and the large numbers of swimmers, divers, and fishers who congregated at the site were obvious indications to the public bodies that the bridge area had been used and was being used by the public as a recreational site. Recent photographs offered in evidence depicted young people diving head first from the bridge into the Maurice River below.

In 1978, seventeen-year-old Mary Lou Quesenberry had suffered a similar accident when she dove into the river. During the course of the subsequent lawsuit the defendants received an engineering report detailing the hazard inherent in the placement of a low bridge wall over a body of water known to be used for recreation. The report indicated that the hazard at the site was the product of constantly-shifting sandbars below that part of the bridge where one would believe the water was the deepest, combined with the coloration of the water. The waters of the Maurice River are of a reddish color, commonly referred to as cedar water. The sandbars resulted from the widening of the river channel when the bridge was constructed in 1971. The report had recommended that the counties (1) construct a protective screen or fence to bar access to the river from the bridge, (2) post effective signs on the bridge approaches and spans, and (3) police and supervise the recreational activities at the site. Notwithstanding those recommendations, at the time of Levin's accident neither county had altered the structure or design of the bridge. Since the filing of this suit, Salem County has erected a six-foot-tall chain-link fence on both sides of the Garden Road Bridge within its jurisdiction. At the end of the fence vertical "wingwalls" extend across the parapet and over the water, preventing access to the parapet behind the fence.

In 1986, the Salem County Board of Chosen Freeholders passed a resolution restricting access to county bridges and prohibiting swimming, fishing, or diving from any bridge. Plaintiff asserted that the resolution had not been enforced. Prior to plaintiff's accident, Salem County did not restrict access to the waters from the bridge or notify the public of the danger inherent in its use as a diving platform. Salem County maintained that it had posted signs on the bridge stating "no fishing, no loitering on bridge" and "no swimming from bridge by order of Freeholders," although plaintiff disputed that those signs had been in place at the time of the accident. Cumberland County also maintained that it had posted "no diving" signs on the bridge, although it had never enacted an ordinance prohibiting diving at the bridge. Plaintiff disputed that these signs had been in place on the date of the accident. Plaintiff was unaware of any sign, ordinance, or prohibition restricting the use of the bridge and the surrounding area. He had often swum at the site, had never believed its recreational use was prohibited, and had often observed others diving from the bridge. He had never been informed that he should leave the area or restrict his activities, nor was he aware that anyone else had been so informed.

Plaintiff sued both counties and the two towns within each county, Pittsgrove and Vineland, that border the bridge. The trial court granted summary judgment in favor of all the public entities. Pittsgrove moved unopposed for summary judgment and was dismissed from the case. Plaintiff did not appeal that dismissal. Salem then moved for summary judgment. In granting Salem's motion, the trial court specifically found that (a) warning signs had been posted on the bridge at the time of the accident, (b) Salem County had passed an ordinance prohibiting diving from county bridges, and (c) the sole intended use for bridges is for vehicular and pedestrian traffic. The court found "as a matter of law [that] this bridge cannot be deemed to be a dangerous condition of public property."

After Salem's motion, defendants Vineland and Cumberland also moved for summary judgment. Vineland argued that because the court had previously ruled that the bridge was not in dangerous condition, plaintiff could not sustain a cause of action against Vineland. Vineland further argued that the bridge was not "a property" of the municipality. Lastly, Vineland disputed plaintiff's allegation that the municipality had been negligent because at one time it had patrol cars on the bridge but at the time of the accident it did not. Vineland argued that a public entity does not have a duty to patrol property that does not belong to it. The court found Vineland's points essentially unrefuted and granted its motion. In granting Cumberland's motion, the court incorporated all of the reasons it had cited for granting Salem's motion that also applied to Cumberland. Presumably, the court's finding that the bridge was not "a dangerous condition" was one of those reasons.

The Appellate Division affirmed, substantially for the reasons stated by the Law Division in ruling on the summary-judgment motions. The Appellate Division considered itself bound by 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 granted plaintiff's petition for certification, 130 N.J. 18, 611 A.2d 655 (1992). Plaintiff claims generally that the decisions of the lower courts constitute a gross miscarriage of justice. Because those decisions apply to defendants Salem, Vineland, and Cumberland, they have all responded to plaintiff's petition.

II

We are required again to resolve the proper relationship between the liability and immunity provisions of the Act. Rochinsky v....