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Stempkowski v. Borough of Manasquan

Decided: February 21, 1986.

MARGARET STEMPKOWSKI, PLAINTIFF-APPELLANT,
v.
BOROUGH OF MANASQUAN, JOHN DOE (FICTITIOUS NAME), RICHARD DOE (FICTITIOUS NAME), DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Passaic County.

Furman, Petrella and Ashbey.

Per Curiam

[208 NJSuper Page 329] Plaintiff appeals from a summary judgment dismissing her complaint against defendant municipality and its employees under N.J.S.A. 59:1 et seq. (Tort Claims Act). On this appeal plaintiff argues that a factual issue existed as to whether defendant municipality permitted the existence of a dangerous condition which was causally related to her injury and precludes summary judgment. We are satisfied there was none, and accordingly affirm the judgment in favor of the municipality.

We are also satisfied plaintiff has no separate cause of action against the municipal employees, and accordingly affirm judgment in their favor.

On August 7, 1983, plaintiff was injured while attempting to rescue her children who were swimming in the surf off of the beach at Manasquan. The immediate cause of her injury was a wave which knocked her down. Plaintiff filed a complaint against the borough and its employees alleging negligence in not supervising the beach.

Plaintiff's cause of action rested upon sections of the Tort Claims Act which deal with the liability of municipalities and of municipal employees. Plaintiff relied upon N.J.S.A. 59:4-2 which is captioned, "Liability Generally".

N.J.S.A. 59:4-2.

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 created the dangerous condition; or

b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.

The trial judge found that the municipality and its employees were protected by N.J.S.A. 59:2-7, relating to ...


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