On appeal from Superior Court, Law Division, Cumberland County.
Shebell, Gaynor and Arnold M. Stein. The opinion of the court was delivered by Gaynor, J.A.D.
The applicability of N.J.S.A. 59:4-8 to a boating accident on a State-owned lake is the determinative issue presented in this appeal.
By leave granted, the State appeals from the denial of its summary judgment motion for the dismissal of this personal injury and wrongful death action arising from an accident which occurred while plaintiff and decedent were fishing in a small motorboat on State-owned Union Lake in Millville. Union Lake is approximately 850 acres in area being part of a tract of 4,300 acres acquired by the State of New Jersey in 1982 and used by the Division of Fish, Game and Wildlife as a wildlife management area.
The State's motion was founded upon the asserted immunity afforded under N.J.S.A. 59:4-8 or the Landowner's Liability Act, N.J.S.A. 2A:42A-2, et seq. In denying the motion, the trial judge concluded that the immunity provided by the latter statute was not applicable as the area in question did not constitute rural or semirural unimproved lands within the meaning of the Act, and also that a summary disposition of plaintiffs' complaint on the basis of the State's statutory immunity under N.J.S.A. 59:4-8 for an injury caused by a condition of unimproved public property was inappropriate as material issues of fact were presented as to whether the causative condition was a dangerous hazard. We make no determination with respect to the applicability of the Landowner's Liability Act, as it is our view that the immunity provided by N.J.S.A. 59:4-8 bars, as a matter of law, the imposition of liability upon the State for the consequences of the accident giving rise to this action.
On June 22, 1983 while plaintiff, Marie R. Troth, and her husband, Floyd L. Troth, were trolling on Union Lake in their small boat, their fishing lures caught on some undergrowth. In attempting to free the line, the boat was drawn by the current toward the dam at one end of the lake. Realizing that they were getting too close to the dam and that the trolling motor was inadequate to withstand the current, they tried unsuccessfully to start a larger motor on the boat. As the boat passed over the dam's spillway, Mrs. Troth attempted to hold the boat back by grasping a submerged wire rope which stretched across the spillway. She was unable to do so and the boat was swept over the dam. Mr. Troth died as result of the injuries sustained in this tragic accident and Mrs. Troth suffered extensive permanent injuries.
In their complaint against the State of New Jersey, County of Cumberland and City of Millville, plaintiffs alleged that the dangerous condition of Union Lake and its dam permitted the boat to be swept over the dam and thus was causally related to the injuries and death which were thereby sustained. Additional
claims advanced in opposing the State's motion were that State employees were negligent in failing to properly supervise the dam, in failing to take notice of the fact that the wire rope barrier across the spillway was submerged by the rising water level and in failing to notice that the increased water current rendered the lake in the vicinity of the dam unmanageable for small boats. Assertedly, had there been proper supervision and maintenance of the dam and the wire rope barrier, appropriate action could have been taken which would have prevented the accident. In support of this negligent supervision argument, plaintiffs pointed to the routine daily patrols of the lake by conservation officers, during which the spillway was inspected and water levels monitored, and the conceded purpose of the cable across the spillway being to warn or prevent boats from going over the spillway.
In ruling that the State was not entitled to a summary judgment based upon the statutory immunity, the trial judge reasoned:
[C]learly I think there's sufficient facts that have to be developed at trial before a finder of fact can conclude that this was not a dangerous condition. The certifications don't demonstrate clearly what is the purpose of the wire rope. They don't demonstrate necessarily the inspections of that wire rope. I realize there are two people going out inspecting twice a day, but are they cognizant of the wire rope? Are they cognizant of what it's used for? Are they cognizant that they have an obligation to observe if they know it's used to prevent people or boats from going over? And are they cognizant of the fact that they should be aware that under high tide conditions it's submerged and the expected user wouldn't be able to see it or perhaps grab hold of it. I think that's all a series of questions which have to be developed from the testimony. And, therefore, there are material issues of fact on that issue.
On this appeal, the State argues, as it did before the trial judge, that plaintiffs' action is barred by the absolute immunity provided by N.J.S.A. 59:4-8 to public entities for injuries caused by a condition of unimproved public property. As Union Lake is part of a large tract used as a wildlife management area and was acquired by the State under the Green Acres Program specifically for recreation ...