On appeal from Superior Court of New Jersey, Law Division, Atlantic County.
King, Deighan and Bilder. The opinion of the court was delivered by Deighan, J.A.D.
In this case we consider the liability of Atlantic City for the careless conduct of a bicyclist on the Boardwalk.
Plaintiffs appeal from a dismissal of their complaint based on the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et. seq. for personal injuries sustained by the plaintiff John A. Sharra. Plaintiffs claim two bases for recovery under the Tort Claims Act: first, the maintenance of a dangerous condition pursuant to N.J.S.A. 59:4-2 and, second, negligent supervision of a recreation facility pursuant to 59:3-11. In opposition to Atlantic City's motion for summary judgment, plaintiffs analogize the facts of this case with Kleinke v. City of Ocean City, 163 N.J. Super. 424, 430 (Law Div.1978), where the court found that the combination of a body surfer and three to six-foot waves amounted to a "dangerous condition." The trial judge distinguished Kleinke and further held that the boardwalk is "used as a walkway to get from one point to the other and obviously
also used for recreational purposes, if nothing else, a stroll along the ocean front." He concluded that "the public way is not the equivalent of a 'recreational facility.'"
The facts are not in dispute. On the morning of July 18, 1982 John Sharra was riding his bicycle on the ocean side of the Atlantic City Boardwalk. He had ridden his bicycle on the Boardwalk on a regular basis for about 40 years. On this particular morning, the boardwalk was crowded with cyclists. A man on a bicycle raced towards Sharra and struck him, throwing him from his bicycle. He fractured his jaw on the railing of the boardwalk. The racing cyclist who struck Sharra never stopped and was never identified.
On this appeal, pursuant to leave granted, plaintiffs filed a supplemental brief and supplemented the record with several Atlantic City ordinances concerning the boardwalk. Atlantic City Ordinance No. 68 of 1981 provides that bicycles may be ridden on the boardwalk between 6 a.m. and 10 a.m. daily. In its introductory clauses, Atlantic City Ordinance No. 22-1961 refers to the "Boardwalk as a recreational facility." Introductory clause of another Atlantic City ordinance, No. 6 of 1974, reads as follows:
WHEREAS, the Beach and Boardwalk in the City of Atlantic City are part of a Public Park; and . . .
WHEREAS, the Beach and Boardwalk in Atlantic City is part of a public park from the inside line of the Boardwalk oceanward to the Atlantic Ocean; and . . .
Plaintiffs also included in their appendix a picture of a sign, presumably posted at an entry point to the boardwalk, which says "Atlantic City Bike Hours 6 a.m. to 10 a.m. Only."
Plaintiffs contend that: (1) the boardwalk is a recreational facility within the meaning of N.J.S.A. 59:3-11; (2) the determination of whether the boardwalk is a recreational facility is at least a factual question which precludes summary judgment (not raised below); (3) discovery should have been extended for an additional period of 60 days; (4) the court erred in determining that the boardwalk is ...