Lynch, Milmed and Antell.
Thomas Trimblett and Christopher A. Zajaczkowski disappeared after they went boating in the Round Valley Reservoir on May 4, 1973. The instant death actions were instituted by their respective administratrices ad prosequendum who alleged that the men died due to the negligence of the State of New Jersey, which owned and controlled the reservoir, and Mr. and Mrs. Howard Smith t/a Round Valley Bait & Tackle Shop, who had rented a boat to decedents. The actions against defendants Smith were dismissed and the cases proceeded to trial against the State of New Jersey. At the end of plaintiffs' cases the trial judge granted the State's motion for involuntary dismissal.
While the trial judge considered various contentions of the State on its motion for dismissal, including immunity under the Tort Claims Act, N.J.S.A. 59:1-1 et seq. , it finally
concluded that the motion would be granted essentially on the ground that plaintiffs had failed to show that the deaths of decedents were proximately caused by any negligence of which the State may have been guilty.
After plaintiffs' appeals were filed in this court we remanded the matter to the trial judge for consideration of the issue of whether N.J.S.A. 2A:42A-1 et seq. , particularly N.J.S.A. 2A:42A-3 which in general exonerates a landowner from liability to any person who enters upon or uses the land of the owner for sport or recreational activities, is applicable herein. Pursuant to said remand the trial judge determined that the cited statute did not bar the instant actions for the reasons that the Legislature, in adopting the Tort Claims Act, blanketed the area of the liability of public entities in this context, and therefore that "it [Legislature] must have concluded that the disputed statute [ N.J.S.A. 2A:42A-3] did not extend to public entities."
The trial judge in his oral opinion on the State's motion for an involuntary dismissal thoroughly reviewed all of the evidence which had been offered by plaintiffs, including the inferences which most favorably could be deduced therefrom, and concluded that plaintiffs had failed to prove that the deaths had been proximately caused by negligence of the State. We agree that plaintiffs' cases were deficient in that respect and our affirmance herein could rest on that ground alone. However, we deem it appropriate to consider other contentions now made by the State.
The New Jersey Tort Claims Act contains provisions which are relevant here. N.J.S.A. 59:2-7 states:
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 chapter 4.
The court's reference to chapter 4 as provided by that section would include the following:
59:4-2. Liability generally
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 reasonably ...