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Kleinke v. City of Ocean City

Decided: October 24, 1978.


Staller, J.c.c. (temporarily assigned).


In this personal injury action against the City of Ocean City, a municipal corporation and its employee, John Doe, interrogatories and depositions in the discovery process reveal the following pertinent facts:

Plaintiff, Bernard Kleinke was, on or about July 8, 1975, standing in the ocean in approximately 1 1/2 feet of water at the Tenth Street Beach in Ocean City, when a wave rolled in upon him at chest height and at that moment he was injuriously struck by a person whom he believed was engaged in body surfing. No lifeguards were sitting in the elevated lifeguard stand on the Tenth Street Beach while he was in the water; the lifeguards assigned to that section of the beach were themselves in the water, the nearest one of them being 100 to 125 feet from him at the time he was struck and injured. Neither prior to the time Kleinke entered the water nor or any time thereafter, before he was injured, did the lifeguards or any one else warn him that swimmers or bathers were body surfing in that area.

From a lifeguard, Larry Gleason, assigned to the Tenth Street Beach, it was elicited on depositions that he never warned anyone not to body surf at the Tenth Street Beach, regardless of the density of the crowd or the roughness of the water; that he was never instructed by anyone for the Ocean City Beach Patrol or by anyone else as to when and under what circumstances body surfing should be prohibited.

Board surfing, however, was prohibited at the Tenth Street Beach. He stated that, depending on the swimmer, the force of a wave could propel a swimmer at a faster rate than he could swim under his own power and that prior to this occasion he, as a lifeguard, was aware that a body surfer being propelled through the water by an ocean wave could strike a person standing in shallow water. It was also elicited from Gleason that since July 8, 1975 he had seen someone else struck by a body surfer on the Eighth Street Beach in Ocean City by a wave about four feet high. He described the normal size waves at the Tenth Street Beach during that summer as being between three and six feet high.

Defendants Ocean City and its employee move for summary judgment of dismissal pursuant to R. 4:46-2. They contend that plaintiff is barred from bringing this action against the public entity upon such a factual pattern because it is immune from suit under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. in its several sections and there are no exceptions in the statute which preclude such immunity.

Plaintiff seeks relief in this matter under N.J.S.A. 59:4-1 et seq. and N.J.S.A. 59:3-11, two sections of the New Jersey Tort Claims Act. One important precondition to recovery under N.J.S.A. 59:4-1 et seq. is that plaintiff establish that the property upon which his injury occurred was in a "dangerous condition" at the time of the injury. Plaintiff here contends that the practice of "body surfing" in the ocean, especially in crowded conditions and during three to six feet wave heights, constituted a "dangerous condition" of property within the meaning of N.J.S.A. 59:4-2, the liability section of the act. "'Dangerous condition' means a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1(a).

Under N.J.S.A. 59:3-11 plaintiff must establish that his injury occurred at a "public recreational facility," that defendant public entity undertook to provide supervision of the facility and that it was negligent in its supervision. Plaintiff alleges that the Tenth Street Beach was such a recreational facility and that defendant undertook to supervise said facility by organizing and maintaining a beach patrol pursuant to N.J.S.A. 40:185-4 and 5 and N.J.S.A. 40:92-7.1 Plaintiff further alleges that defendant Ocean City was negligent in its supervision by failing to have one of its lifeguards maintain a position in the lifeguard stand at the Tenth Street Beach; by failing to prohibit body surfing under certain conditions; by failing to warn plaintiff of the existence of body surfers in the area and because of the improper location of its lifeguards in the water.

Plaintiff's first ground for relief is based on N.J.S.A. 59:4-2, which states:

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 foreseeable risk of the kind of injury which was incurred, and that either:

a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment ...

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