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 entities 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 (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 entities any defenses that are available to private persons. In Trimblet the Appellate Division specifically held that the Tort Claims Act ...