For affirmance -- Justices Clifford, Pollock and Garibaldi. For reversal and remand -- Chief Justice Wilentz, and Justices Handler, O'Hern and Stein. The opinion of the Court was delivered by Stein, J. Handler, J., concurring. O'Hern, J., concurring. Pollock, J., dissenting. Justices Clifford and Garibaldi join in this opinion. Concurring in result -- Justices Handler and O'Hern.
[117 NJ Page 260] Plaintiff instituted this action to hold the State of New Jersey accountable for the death of her husband and the serious injuries she sustained when their small fishing boat was swept over the spillway on Union Lake Dam, located on a 4,300-acre recreational tract owned by the State. The gist of the complaint and the affidavits opposing the State's summary judgment motion was that because of the configuration of the spillway at higher-than-normal water levels, the flow velocity near the spillway created a "dangerous condition" for small fishing boats, providing a basis for liability under the New Jersey Tort Claims Act (the "Act"). See N.J.S.A. 59:4-2. The Law Division denied the State's motion for summary judgment. The Appellate Division reversed, 222 N.J. Super. 420 (1988), holding that the State was immune from liability pursuant to
N.J.S.A. 59:4-8 and -9 because Union Lake is "unimproved public property." We granted certification, 111 N.J. 565 (1988), and now reverse.
Union Lake Dam is one of the oldest dams in the State of New Jersey. Built in the nineteenth century, the 2,000-foot-long, thirty-five-foot-high, earthen structure impounds the Maurice River and creates Union Lake. It has a 200-foot wide concrete and masonry spillway over which excess water flows into the Maurice River. The dam lies at the southernmost tip of a 4,300-acre wildlife-management area that was transferred to the State of New Jersey in 1982.
On the morning of June 22, 1983, Marie Troth and her husband, Floyd, went fishing on Union Lake. The Troths lowered their fourteen-foot aluminum-hulled fishing boat into the lake from the boat-launching ramp, located at the same end of the lake as the dam. Turning on their electric trolling motor, the Troths made their way across the lake to an area near the dam. While the two were trolling, the fishing lines became entangled in undergrowth. Mr. Troth reversed the trolling motor and backed up in the direction of the snag. As they were retrieving the fishing lines, the Troths realized that the current was pulling their boat towards the spillway. The small electric trolling motor was unable to resist the current and the boat was drawn closer to the spillway. Mr. Troth shifted to a position where he could start the ten-horsepower gas-driven motor. He tried several times but the motor would not turn over. As the boat approached the mouth of the spillway, Mrs. Troth saw "one wire rope which in large part was submerged beneath the water." She reached down and grabbed onto the cable, but was unable to prevent the boat from being swept over the crest of the spillway. Both Marie and Floyd Troth were thrown from the boat as it passed over the dam. As she was falling, Mrs. Troth saw the boat flip over and strike her
husband. Mr. Troth drowned and Mrs. Troth suffered serious injury.
The Division of Fish, Game and Wildlife dispatched an investigator, who arrived soon after the accident. The investigator, who was familiar with Union Lake, checked the water-depth gauge and found the water level to be above normal. The investigator found a single safety cable stretched across the spillway. He also noted that there was "higher than normal water and a strong current was evident." The investigator also observed two signs facing the lake on either side of the spillway bearing the legend "KEEP AWAY."
In preparation for this litigation, plaintiff retained an engineering expert to furnish a report on the safety of Union Lake Dam. According to that report, the spillway has a maximum discharge capacity of 19,000 cubic feet of water per second. At capacity, the water depth across the 200-foot length of the spillway is 6.5 feet. At this level, the water velocity at the crest of the spillway is 14.5 feet per second. The report observes that "[a] small boat cannot be controlled at such a rate of flow." At half-capacity, water depth at the spillway is 4.1 feet and has a velocity at the crest of 11.5 feet per second, a flow that the report indicates "would still result in a velocity uncontrollable in a small boat."
From these flow velocities, plaintiff's expert concluded:
The velocities calculated above are those that would exist at the spillway crest. At locations in the reservoir, at some distance from the spillway, the velocities would be much diminished, but a current toward the spillway would still exist. This situation represents an insidious trap for a boat could begin a gentle drift, with its occupants unaware of the motion, until it had accelerated to the point where escape from the grip of the current became impossible.
Plaintiff's engineering expert inspected the dam in February 1985. At that time, two wire-rope barriers were stretched across the crest of the spillway. The engineering report indicates that at full discharge capacity the spillway-wire barrier would be completely submerged over its entire length; at half capacity, the barrier would be submerged over most of its
length. The report concluded that a floating-barrier boom would have been a more effective safety measure.
Plaintiff's report summarizes its findings as follows: d 6
a) The unrestricted use of Union Lake by small boats, together with the flow of water from the lake over the dam spillway, constituted a very dangerous condition.
b) The State of New Jersey had actual notice of the existence of this dangerous condition, as evidenced by the placement of the warning signs and a wire rope barrier at the spillway.
c) Warning signs placed only on the dam itself were totally inadequate.
d) Barriers which a small boat could pass under at low flows, and which would be submerged at high flows, were defective.
e) Other appropriate measures were available to provide more complete protection to the boating public.
Plaintiff's engineering report incorporates an earlier engineering report prepared for the State of New Jersey by the United States Army Corps of Engineers. This report was prepared pursuant to the National Dam Inspection Act, 33 U.S.C.A. § 467a, and transmitted to the Governor in September 1978. The report concluded that Union Lake Dam is "a high hazard potential structure."*fn1 In particular, the Corps of Engineers found that the "spillway is considered to be inadequate since 61% of the Probable Maximum Flood  would overtop the dam." The report recommended that the State promptly institute a number of safety measures: an engineering study of the
spillway and implementation of necessary remedial actions to insure its adequacy and prevent overtopping; installation of an interim system notifying local civil defense authorities of dangerous conditions during heavy storms; providing spillway-gate operators with flow information and water elevations; and installation of a gauge to record reservoir levels during peak flows.
With respect to the State's failure to implement the recommended safety measures, the plaintiff's expert concludes:
Unless sufficient explanation can be provided for disregarding the recommendations contained in the Berger [Army Corps of Engineers] report, and we can hardly conceive any, a valid theory can be developed for wanton disregard for safety provisions at the site. Lack of concern for safety of the dam system itself during high flow conditions would naturally foster a more casual attitude toward boaters during these same conditions. Regular users of Union Lake, who have operated their boats safely in the vicinity of the dam during low-flow periods, could be lulled into a sense of security that would be unwarranted at higher flows (and hence more rapid velocities near the dam). The owners and operators of the dam, having been alerted to high-flow hazards, should have responded with more effective safety and warning devices * * *.
The State moved for summary judgment, contending that it was immune from liability under the New Jersey Tort Claims Act because Union Lake was "unimproved public property," N.J.S.A. 59:4-8 and -9. It argued in the alternative that it was entitled to immunity under the Landowner Liability Act, N.J.S.A. 2A:42A-1 to -7, asserting that it owed no duty to people using Union Lake for "sport and recreational activities." N.J.S.A. 2A:42A-3. After the Law Division denied the summary judgment motion, the Appellate Division granted the State leave to appeal. In her responding brief, plaintiff argued for the first time that summary judgment should be denied because of a factual issue over whether the State's employees had been negligent in supervising the recreational use of Union Lake. See N.J.S.A. 59:3-11.
The Appellate Division reversed, concluding that the State's immunity from liability for injuries caused by a dangerous condition of "unimproved public property" compelled the grant of summary judgment.
We are satisfied there is no factual issue as to whether Union Lake as part of the larger tract acquired by the State for conservation and recreational purposes is "unimproved public property" within the meaning of N.J.S.A. 59:4-8. Nor, that the existence of the earthen dam and concrete spillway, although an artifically created structure, causes the nature of this property to be other than unimproved. This conclusion is compelled by legislative directive that "the term unimproved public property should be liberally construed." Comment to N.J.S.A. 59:4-8 and 9, supra. Clearly, the dam is a necessary and integral part of the lake and thus cannot be considered, as urged by plaintiffs, as a separate and distinct parcel of the State-owned land having no relationship to the unimproved aspect of the entire tract. In comparing the nature and extent of this man-made improvement with the nature and extent of the lake itself it is evident that the existence of the dam cannot detract from the overall unimproved character of this portion of the Union Lake Wildlife Management Area. [222 N.J. Super. at 425-26.]
The Appellate Division also determined that there was no factual issue raised by plaintiff's contention that the State's liability could be premised on the negligent supervision of boating activity by State employees. The court acknowledged that State conservation officers routinely patrolled the lake for the purpose of enforcing fish and game laws, and also periodically inspected the dam and spillway. Id. at 425. The court concluded that there was
no proof that State employees undertook the supervision of the recreational use of the lake. The routine patrols of the conservation officers were directed to enforcement of the applicable laws and regulations. Their inspection of the spillway, being "an incidental undertaking at the same place and only tangentially related to the recreational activity." N.J.S.A. 59:3-11. [ Id. at 427.]
The Appellate Division did not address the State's contention that it was also afforded immunity under the Landowner's Liability Act. Id. at 422.
Because this action is predicated on the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, our analysis begins with the Act's relevant provisions and with the comments of the Attorney General's Task Force Report (Task Force Report), which provide the legislative history for the Act. J.S. Fitzpatrick, Governmental Tort Liability in New Jersey 17 (1986) (Fitzpatrick). As a general rule, the analytical "approach
should be whether an immunity applies and if not, should liability attach." N.J.S.A. 59:2-1, comment. By providing that "'public entities are immune from liability unless they are declared to be liable by an enactment,'" the Legislature intended to "'provide a better basis upon which the financial burden of liability may be calculated, since each enactment imposing liability can be evaluated in terms of the potential cost of such liability.'" Ibid. (quoting California Law Revision Comm'n, Recommendations Relating to Sovereign Immunity 811 (1963)).
Consistent with that general policy, two sections of the Act, N.J.S.A. 59:4-8 and -9, limit liability of public entities for injuries on unimproved property. A third section precludes liability for the failure to supervise, but not for negligent supervision. N.J.S.A. 59:3-11. The two sections pertaining to unimproved property provide:
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. [ N.J.S.A. 59:4-8.]
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. [ N.J.S.A. 59:4-9.]
When explaining the purpose of these two sections, the Attorney General's Task Force commented:
Sections 59:4-8 and 59:4-9 reflect the policy determination that it is desirable to permit the members of the public to use public property in its natural condition and that the burdens and expenses of putting such property in a safe condition as well as the expense of defending claims for injuries would probably cause many public entities to close such areas to public use. In view of the limited funds available for the acquisition and improvement of property for recreational purposes, it is not unreasonable to expect persons who voluntarily use unimproved public property to assume the risk of injuries arising therefrom as part of the price to be paid for benefits received. A similar statutory approach was taken by the California Legislature. [ N.J.S.A. 59:4-9, comment (citations omitted).]
After pointing out that "[the] State of New Jersey possesses thousands of acres of land set aside for the specific purpose of recreation and enjoyment," the comment concluded:
The exposure to hazard and risk involved is readily apparent when considering all the recreational and conservation uses made by the public generally of the
foregoing acreages, both land and water oriented. Thus in sections 59:4-8 and 59:4-9 a public entity is provided an absolute immunity irrespective of whether a particular condition is a dangerous one.
In addition it is intended under those sections that the term unimproved public property should be liberally construed and determined by comparing the nature and extent of the improvement with the nature and extent of the land. Certain improvements may be desirable and public entities should not be unreasonably deterred from making them by the threat of tort liability. [ Ibid.]
Although we have not previously construed N.J.S.A. 59:4-8 and -9, the Law Division and the Appellate Division have arrived at conflicting constructions of the sections. The Law Division has construed N.J.S.A. 59:4-8 to provide immunity only for "natural conditions." Diodata v. Camden County Park Comm'n, 162 N.J. Super. 275, 289 (1978). In Diodata, the court determined that a park commission would not be immune from liability because a submerged oil drum that a diver struck when he dived into a river was not a "natural" condition. Ibid. During that same year, the Law Division also held that a municipality would not be immune from liability to a swimmer who was injured by a body surfer, finding that the presence of the surfer in the waves was no more a natural ...