Troth v. State

• Decision Date: 20 November 1989
• Citation: 117 N.J. 258,566 A.2d 515
• Parties: Marie R. TROTH, Individually, as Administratrix of the Estate of Floyd L. Troth, and as Administratrix Ad Prosequendum for the Heirs-At-Law of Floyd R. Troth, Plaintiff-Appellant, v. STATE of New Jersey, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 258

117 N.J. 258

566 A.2d 515

Marie R. TROTH, Individually, as Administratrix of the Estate of Floyd L. Troth, and as Administratrix Ad Prosequendum for the Heirs-At-Law of Floyd R. Troth, Plaintiff-Appellant, v. STATE of New Jersey, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Nov. 29, 1988.

Decided Nov. 20, 1989.

Gary D. Thompson, for plaintiff-appellant (Cresse, Carr, Peaslee and Thompson, Woodbury, attorneys).

Jerry Fischer, Deputy Atty. Gen., for defendant-respondent (Cary Edwards, Atty. Gen., attorney; James J. Ciancia, Asst. Atty. Gen., of counsel; Valerie L. Egar, Deputy Atty. Gen., on the brief).

The opinion of the Court was delivered by

STEIN, J.

Plaintiff instituted this action to hold the State of New Jersey accountable for the death of her husband and the serious injuries she sustained when their small fishing boat was swept over the spillway on Union Lake Dam, located on a 4,300-acre recreational tract owned by the State. The gist of the complaint and the affidavits opposing the State's summary judgment motion was that because of the configuration of the spillway at higher-than-normal water levels, the flow velocity near the spillway created a "dangerous condition" for small fishing boats, providing a basis for liability under the New Jersey Tort Claims Act (the "Act"). See N.J.S.A. 59:4-2. The Law Division denied the State's motion for summary judgment. The Appellate Division reversed, 222 N.J.Super. 420, 537 A.2d 315 (1988), holding that the State was immune from liability pursuant to N.J.S.A. 59:4-8 and -9 because Union Lake is "unimproved public property." We granted certification, 111 N.J. 565, 546 A.2d 496 (1988), and now reverse.

I.

Union Lake Dam is one of the oldest dams in the State of New Jersey. Built in the nineteenth century, the 2,000-foot-long, thirty-five-foot-high, earthen structure impounds the Maurice River and creates Union Lake. It has a 200-foot wide concrete and masonry spillway over which excess water flows into the Maurice River. The dam lies at the southernmost tip of a 4,300-acre wildlife-management area that was transferred to the State of New Jersey in 1982.

On the morning of June 22, 1983, Marie Troth and her husband, Floyd, went fishing on Union Lake. The Troths lowered their fourteen-foot aluminum-hulled fishing boat into the lake from the boat-launching ramp, located at the same end of the lake as the dam. Turning on their electric trolling motor, the Troths made their way across the lake to an area near the dam. While the two were trolling, the fishing lines became entangled in undergrowth. Mr. Troth reversed the trolling motor and backed up in the direction of the snag. As they were retrieving the fishing lines, the Troths realized that the current was pulling their boat towards the spillway. The small electric trolling motor was unable to resist the current and the boat was drawn closer to the spillway. Mr. Troth shifted to a position where he could start the ten-horsepower gas-driven motor. He tried several times but the motor would not turn over. As the boat approached the mouth of the spillway, Mrs. Troth saw "one wire rope which in large part was submerged beneath the water." She reached down and grabbed onto the cable, but was unable to prevent the boat from being swept over the crest of the spillway. Both Marie and Floyd Troth were thrown from the boat as it passed over the dam. As she was falling, Mrs. Troth saw the boat flip over and strike her husband. Mr. Troth drowned and Mrs. Troth suffered serious injury.

The Division of Fish, Game and Wildlife dispatched an investigator, who arrived soon after the accident. The investigator, who was familiar with Union Lake, checked the water-depth gauge and found the water level to be above normal. The investigator found a single safety cable stretched across the spillway. He also noted that there was "higher than normal water and a strong current was evident." The investigator also observed two signs facing the lake on either side of the spillway bearing the legend "KEEP AWAY."

In preparation for this litigation, plaintiff retained an engineering expert to furnish a report on the safety of Union Lake Dam. According to that report, the spillway has a maximum discharge capacity of 19,000 cubic feet of water per second. At capacity, the water depth across the 200-foot length of the spillway is 6.5 feet. At this level, the water velocity at the crest of the spillway is 14.5 feet per second. The report observes that "[a] small boat cannot be controlled at such a rate of flow." At half-capacity, water depth at the spillway is 4.1 feet and has a velocity at the crest of 11.5 feet per second, a flow that the report indicates "would still result in a velocity uncontrollable in a small boat."

From these flow velocities, plaintiff's expert concluded:

The velocities calculated above are those that would exist at the spillway crest. At locations in the reservoir, at some distance from the spillway, the velocities would be much diminished, but a current toward the spillway would still exist. This situation represents an insidious trap for a boat could begin a gentle drift, with its occupants unaware of the motion, until it had accelerated to the point where escape from the grip of the current became impossible.

Plaintiff's engineering expert inspected the dam in February 1985. At that time, two wire-rope barriers were stretched across the crest of the spillway. The engineering report indicates that at full discharge capacity the spillway-wire barrier would be completely submerged over its entire length; at half capacity, the barrier would be submerged over most of its length. The report concluded that a floating-barrier boom would have been a more effective safety measure.

Plaintiff's report summarizes its findings as follows:

a) The unrestricted use of Union Lake by small boats, together with the flow of water from the lake over the dam spillway, constituted a very dangerous condition.

b) The State of New Jersey had actual notice of the existence of this dangerous condition, as evidenced by the placement of the warning signs and a wire rope barrier at the spillway.

c) Warning signs placed only on the dam itself were totally inadequate.

d) Barriers which a small boat could pass under at low flows, and which would be submerged at high flows, were defective.

e) Other appropriate measures were available to provide more complete protection to the boating public.

Plaintiff's engineering report incorporates an earlier engineering report prepared for the State of New Jersey by the United States Army Corps of Engineers. This report was prepared pursuant to the National Dam Inspection Act, 33 U.S.C.A. § 467a, and transmitted to the Governor in September 1978. The report concluded that Union Lake Dam is "a high hazard potential structure." ¹ In particular, the Corps of Engineers found that the "spillway is considered to be inadequate since 61% of the Probable Maximum Flood [ ] would overtop the dam." The report recommended that the State promptly institute a number of safety measures: an engineering study of the spillway and implementation of necessary remedial actions to insure its adequacy and prevent overtopping; installation of an interim system notifying local civil defense authorities of dangerous conditions during heavy storms; providing spillway-gate operators with flow information and water elevations; and installation of a gauge to record reservoir levels during peak flows.

With respect to the State's failure to implement the recommended safety measures, the plaintiff's expert concludes:

Unless sufficient explanation can be provided for disregarding the recommendations contained in the Berger [Army Corps of Engineers] report, and we can hardly conceive any, a valid theory can be developed for wanton disregard for safety provisions at the site. Lack of concern for safety of the dam system itself during high flow conditions would naturally foster a more casual attitude toward boaters during these same conditions. Regular users of Union Lake, who have operated their boats safely in the vicinity of the dam during low-flow periods, could be lulled into a sense of security that would be unwarranted at higher flows (and hence more rapid velocities near the dam). The owners and operators of the dam, having been alerted to high-flow hazards, should have responded with more effective safety and warning devices * * *.

The State moved for summary judgment, contending that it was immune from liability under the New Jersey Tort Claims Act because Union Lake was "unimproved public property," N.J.S.A. 59:4-8 and -9. It argued in the alternative that it was entitled to immunity under the Landowner Liability Act, N.J.S.A. 2A:42A-1 to -7, asserting that it owed no duty to people using Union Lake for "sport and recreational activities." N.J.S.A. 2A:42A-3. After the Law Division denied the summary judgment motion, the Appellate Division granted the State leave to appeal. In her responding brief, plaintiff argued for the first time that summary judgment should be denied because of a factual issue over whether the State's employees had been negligent in supervising the recreational use of Union Lake. See N.J.S.A. 59:3-11.

The Appellate Division reversed, concluding that the State's immunity from liability for injuries caused by a dangerous condition of "unimproved public property" compelled the grant of summary judgment.

We are satisfied there is no factual issue as to whether Union Lake as part of the larger tract acquired by the State for conservation and recreational purposes is "unimproved public property" within the meaning of N.J.S.A. 59:4-8. Nor, that the existence of the earthen dam and concrete spillway, although an artifically created structure, causes the nature of this property to be other than unimproved. This conclusion is compelled by legislative directive that "the term...