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Levin v. County of Salem

Decided: July 15, 1993.

RICHARD AND DARLENE LEVIN, HUSBAND AND WIFE; AND DARLENE LEVIN, AS GUARDIAN AD LITEM FOR HER MINOR CHILDREN, LOUIS LEVIN AND JULIA LEVIN, PLAINTIFFS-APPELLANTS,
v.
COUNTY OF SALEM, COUNTY OF CUMBERLAND AND CITY OF VINELAND, DEFENDANTS-RESPONDENTS, AND TOWNSHIP OF PITTSGROVE, DEFENDANT



On certification to the Superior Court, Appellate Division.

For affirmance -- Chief Justice Wilentz and Justices Clifford, Pollock, O'Hern and Garibaldi. For reversal and remandment -- Justices Handler and Stein. The opinion of the Court was delivered by O'Hern, J. Stein, J., Dissenting. Justice Handler joins in this opinion.

O'hern

[133 NJ Page 37] The question in this case is whether the unauthorized use of public property for private recreational activities thereby puts the property "in dangerous condition" under N.J.S.A. 59:4-2 of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to :12-3 (the Act or the New Jersey Act), when the recreational activities themselves are risky and pose danger to the participants. In this case a man dove from a county bridge into shallow tidal waters, suffering a paralyzing injury. We conclude that however tragic the accident, its cause was not the condition of the bridge but the dangers of unsupervised recreational activity for which there is no publicentity liability under the Act.

I

For purposes of this appeal, we accept the statement of facts set forth in plaintiff's briefs. (For convenience, we refer only to the injured plaintiff, Richard Levin. The claims of the other plaintiffs are derivative.) On the evening of July 23, 1987, Levin and two companions stopped at the Garden Road Bridge (the bridge) between Pittsgrove and Vineland to swim in the Maurice River. They had arrived by automobile from the Cumberland County side of the bridge and had parked in the turnoff on the north side of the bridge, the Salem County side.

Many others were at or near the bridge on that evening. For decades local residents had used the bridge and the surrounding area along the Maurice River for swimming and diving. This local "swimming hole" spans the border between Vineland (Cumberland) on the east and Pittsgrove (Salem) on the west. When Levin arrived at the bridge, several people were diving from the bridge into the river, seven feet below the bridge span. After observing the divers, Levin went to the north side of the bridge. When he dove into the river, his head struck a submerged sandbar. As a result, he sustained a fracture of the sixth cervical vertebra and was rendered a quadriplegic.

The counties of Cumberland and Salem jointly own, maintain, and control the Garden Road Bridge and are responsible for the regulation of activities on or near it. At the site of the bridge, the Maurice River passes through a picturesque woodland area. Gently sloping banks descend to the river on each side, and a sandy bathing beach exists adjacent to it. The site has been used by the public as a local swimming hole and for other water-related activities, such as sunbathing, fishing, canoeing, swimming, and diving from the river bank. Levin, in fact, had frequented the site as a child, and his family had enjoyed several outings there. The present bridge was constructed to replace the steel truss bridge that had been on the site for many years. It serves a rural, two-lane road. The bridge has a parapet, or low wall, at its edge, separated from the road by a wide sidewalk. Visitors to the

bridge often used the parapet, which is twenty-seven inches high and twelve inches wide, as a diving platform.

The record contains evidence that defendants knew that the area surrounding the Garden Road Bridge was used as a recreational site and that the bridge itself was used as a diving platform. The artificial bathing beach, parking areas, footpaths, canoe-rental signs, and the large numbers of swimmers, divers, and fishers who congregated at the site were obvious indications to the public bodies that the bridge area had been used and was being used by the public as a recreational site. Recent photographs offered in evidence depicted young people diving head first from the bridge into the Maurice River below.

In 1978, seventeen-year-old Mary Lou Quesenberry had suffered a similar accident when she dove into the river. During the course of the subsequent lawsuit the defendants received an engineering report detailing the hazard inherent in the placement of a low bridge wall over a body of water known to be used for recreation. The report indicated that the hazard at the site was the product of constantly-shifting sandbars below that part of the bridge where one would believe the water was the deepest, combined with the coloration of the water. The waters of the Maurice River are of a reddish color, commonly referred to as cedar water. The sandbars resulted from the widening of the river channel when the bridge was constructed in 1971. The report had recommended that the counties (1) construct a protective screen or fence to bar access to the river from the bridge, (2) post effective signs on the bridge approaches and spans, and (3) police and supervise the recreational activities at the site. Notwithstanding those recommendations, at the time of Levin's accident neither county had altered the structure or design of the bridge. Since the filing of this suit, Salem County has erected a six-foot-tall chain-link fence on both sides of the Garden Road Bridge within its jurisdiction. At the end of the fence vertical "wingwalls" extend across the parapet and over the water, preventing access to the parapet behind the fence.

In 1986, the Salem County Board of Chosen Freeholders passed a resolution restricting access to county bridges and prohibiting swimming, fishing, or diving from any bridge. Plaintiff asserted that the resolution had not been enforced. Prior to plaintiff's accident, Salem County did not restrict access to the waters from the bridge or notify the public of the danger inherent in its use as a diving platform. Salem County maintained that it had posted signs on the bridge stating "no fishing, no loitering on bridge" and "no swimming from bridge by order of Freeholders," although plaintiff disputed that those signs had been in place at the time of the accident. Cumberland County also maintained that it had posted "no diving" signs on the bridge, although it had never enacted an ordinance prohibiting diving at the bridge. Plaintiff disputed that these signs had been in place on the date of the accident. Plaintiff was unaware of any sign, ordinance, or prohibition restricting the use of the bridge and the surrounding area. He had often swum at the site, had never believed its recreational use was prohibited, and had often observed others diving from the bridge. He had never been informed that he should leave the area or restrict his activities, nor was he aware that anyone else had been so informed.

Plaintiff sued both counties and the two towns within each county, Pittsgrove and Vineland, that border the bridge. The trial court granted summary judgment in favor of all the public entities. Pittsgrove moved unopposed for summary judgment and was dismissed from the case. Plaintiff did not appeal that dismissal. Salem then moved for summary judgment. In granting Salem's motion, the trial court specifically found that (a) warning signs had been posted on the bridge at the time of the accident, (b) Salem County had passed an ordinance prohibiting diving from county bridges, and (c) the sole intended use for bridges is for vehicular and pedestrian traffic. The court found "as a matter of law [that] this bridge cannot be deemed to be a dangerous condition of public property."

After Salem's motion, defendants Vineland and Cumberland also moved for summary judgment. Vineland argued that because the

court had previously ruled that the bridge was not in dangerous condition, plaintiff could not sustain a cause of action against Vineland. Vineland further argued that the bridge was not "a property" of the municipality. Lastly, Vineland disputed plaintiff's allegation that the municipality had been negligent because at one time it had patrol cars on the bridge but at the time of the accident it did not. Vineland argued that a public entity does not have a duty to patrol property that does not belong to it. The court found Vineland's points essentially unrefuted and granted its motion. In granting Cumberland's motion, the court incorporated all of the reasons it had cited for granting Salem's motion that also applied to Cumberland. Presumably, the court's finding that the bridge was not "a dangerous condition" was one of those reasons.

The Appellate Division affirmed, substantially for the reasons stated by the Law Division in ruling on the summary-judgment motions. The Appellate Division considered itself bound by Burroughs v. City of Atlantic City, 234 N.J. Super. 208, 560 A.2d 725 (App.Div.), certif. denied, 117 N.J. 647, 569 A.2d 1345 (1989). We granted plaintiff's petition for certification, 130 N.J. 18, 611 A.2d 655 (1992). Plaintiff claims generally that the decisions of the lower courts constitute a gross miscarriage of Justice. Because those decisions apply to defendants Salem, Vineland, and Cumberland, they have all responded to plaintiff's petition.

II

We are required again to resolve the proper relationship between the liability and immunity provisions of the Act. Rochinsky v. State, Department of Transportation, 110 N.J. 399, 541 A.2d 1029 (1988), sets forth the principles applicable to an action brought under the Act.

Plaintiff alleges that the absence of adequate warnings on the bridge or the failure to supervise the recreational activities or to erect a fence at the edge of the bridge caused his injuries. Defendants assert that the unauthorized and, indeed, illegal use of the property caused the injuries. Plaintiff realizes that liability

cannot be based on the failure to supervise, because N.J.S.A. 59:2-7 specifically immunizes public entities from liability for the failure to provide supervision of public recreational facilities. See, e.g., Stempkowski v. Borough of Manasquan, 208 N.J. Super. 328, 333, 506 A.2d 5 (App.Div.1986) (affirming grant of summary judgment for borough because plaintiff's claim of failure to supervise could not sustain cause of action under N.J.S.A. 59:2-7). Plaintiff relies, however, on the proviso in N.J.S.A. 59:2-7 that "nothing in this section shall exonerate a public entity from liability for failure to protect against a dangerous condition as provided in chapter 4."

Chapter 4 of the Act, specifically N.J.S.A. 59:4-2, imposes liability on a public entity 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, [and] that the dangerous condition created a reasonably foreseeable risk of the kind of injury * * * incurred." The plaintiff must also establish that the public entity was responsible either through its employees for creating the dangerous condition or had actual or constructive notice of the condition sufficiently before the injury to have taken measures to protect against the dangerous condition, provided that the entity will not be liable if the action taken to protect against the condition was not "palpably unreasonable." Ibid. N.J.S.A. 59:4-1.a. defines "dangerous condition" as "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."

Defendants' principal argument before us is that to use property illegally cannot be to use it with due care, no matter how reasonably foreseeable the use. Applying that principle to Salem County, the fact that the public body had adopted a resolution forbidding diving from the bridge would immunize it from liability. We do not find that to be a satisfactory principle of decision. Were it so, a public entity could easily insulate itself from liability with respect to dangerous conditions of its property merely by

enacting ordinances that, for example, would direct parties not to walk near the edge of a broken railing or near the weakened portion of a floor in public facilities.

Rather, we believe that the issues here require us to identify the culpable cause of the accident and to ask if that "identified cause or condition is one that the Legislature intended to immunize." Weiss v. New Jersey Transit, 128 N.J. 376, 380, 608 A.2d 254 (1992). With respect to the defendants, we perceive only three possible culpable causes of the accident: (1) the design of a bridge with a parapet low enough for divers to scale it and dive into the waters; (2) the failure of the public bodies either to adopt or to enforce ordinances with attendant descriptive signs prohibiting the activities; or (3) the failure of the public bodies to supervise the recreational activities that they knew were taking place on the bridge. Concerning the first point, if the dangerous condition of the property were the omission of a chain-link fence from the original design of the bridge, that omission would be insulated from liability by the plan-or-design immunity granted under N.J.S.A. 59:4-6. Concerning the second and third points, plaintiff recognizes, as he must, that the failure to adopt or to enforce laws and the failure to supervise public recreational facilities are insulated from liability under specific immunities of the Act, respectively, N.J.S.A. 59:2-4 and -7.

As noted, however, plaintiff rests his argument on N.J.S.A. 59:4-2. Plaintiff contends that the use of the property as a recreational facility, when the public body knew of the use, created a dangerous condition of property. He claims that the absence of signs or other interdiction contributed to the dangerous condition. He submits that a jury should have been permitted to decide (1) if the property was being used with due care, in a way that was reasonably foreseeable to defendants, and (2) if such use created a dangerous condition on the property. Plaintiff relies on language in Burroughs, supra, that "whether a dangerous condition is present depends on a combination of factors relating to physical condition, permitted conduct, and objectively foreseeable behavior."

234 N.J. Super. at 218-19, 560 A.2d 725. In Burroughs , an ocean-beach boardwalk used primarily for walking, jogging, and cycling had been adapted, because of its proximity to the water, to a use not intended: diving. If Atlantic City, knowing of the diving, had done nothing to prohibit that unintended use, diving could have become a tacitly-permitted use. The Burroughs court declined to find liability, however, because the City had posted signs prohibiting diving from the boardwalk and its lifeguards had been instructed to stop the activity when they observed it. Id. at 219, 560 A.2d 725. Plaintiff asserts that he has established a factual issue in this case by demonstrating that the public bodies had not effectively interdicted diving and thus had tacitly permitted the use.

We are concerned that the premise of the Burroughs case on which plaintiff relies, namely, that a dangerous condition of property may arise from a "combination of factors relating to physical condition, permitted conduct, and objectively foreseeable behavior," id. at 218-19, 560 A.2d 725, may be too broad in the context of this case. Heretofore, courts have understood a "dangerous condition" as defined in N.J.S.A. 59:4-1.a to refer to the "physical condition of the property itself and not to activities on the property." Sharra v. City of Atlantic City, 199 N.J. Super. 535, 540, 489 A.2d 1252 (App.Div.1985) (citing Rodriguez v. N.J. Sports & Exposition Auth., 193 N.J. Super. 39, 472 A.2d 146 (App.Div.1983), certif. denied, 96 N.J. 291, 475 A.2d 586 (1984)); accord Cogsville v. City of Trenton, 159 N.J. Super. 71, 386 A.2d 1362 (App.Div.1978) (holding that exposure to dog bites from allegedly vicious dog owned by tenant in city dwelling did not constitute dangerous condition of property); Setrin v. Glassboro State College, 136 N.J. Super. 329, 346 A.2d 102 (App.Div.1975) (holding that criminal conduct of one student in attacking another student during oncampus racial incident did not constitute dangerous condition of property).

In King by King v. Brown, 221 N.J. Super. 270, 534 A.2d 413 (App.Div.1987), the court considered the activity on the property, in addition to its physical condition, in deciding whether a dangerous

condition existed. There, Brown, a motorist, struck the plaintiff, a pedestrian, as he attempted to cross a municipal roadway. Plaintiff argued that three public entities responsible for the design of the highway area should be liable for his injuries because the combination of a high volume of vehicular and pedestrian traffic had created a dangerous condition of property. Id. at 273-74, 534 A.2d 413. In finding for the public entities, the King court stated that "application of the dangerous condition standard requires consideration of both the physical characteristics of the public property as well as the nature of the activities permitted on that property." Id. at 275, 534 A.2d 413 (emphasis added). However, the Burroughs court observed that because the motorist and the pedestrian in King "were both using the public property for its permitted and intended purpose, i.e., for pedestrian and vehicular traffic, 'foreseeable' use was not an issue." 234 N.J. Super. at 217, 534 A.2d 413 (emphasis added). Thus, the Burroughs court concluded that the test enunciated in King, that is, "'whether the condition complained of creates a substantial risk of injury despite the exercise of due care,'" presumed that the use of the public premises was a permitted one. Id. at 218, 534 A.2d 413 (quoting King, supra, 221 N.J. Super. at 275, 534 A.2d 413).

Furthermore, we suspect that the Burroughs doctrine, on which plaintiff relies, would effectively eliminate the plan-or-design immunity conferred under N.J.S.A. 59:4-6. The counties designed the bridge to carry traffic and pedestrians. Usually the form of an object follows its function. See David Outerbridge, Bridges 8 (1989). The plan-or-design immunity shelters the bridge designers' decision to accept or reject the concept of posting a chain-link fence along the sides of this rural span. Compare, Daniel v. State, Dep't of Transp., 239 N.J. Super. 563, 571 A.2d 1329 (App.Div.) (presenting jury question on whether State could claim plan-or-design immunity because specific feature allegedly creating dangerous condition -- a "ramp" that could "catapult" cars across highway median -- arguably was result of routine maintenance work rather than an approved feature of plan or design), certif. denied, 122 N.J. 325, 585 A.2d 343 (1990). Declining to follow the

approach of California, the Legislature states in the official Comment to N.J.S.A. 59:4-6 that "[i]t is intended that the plan or design immunity provided in this section be perpetual." "[O]nce the immunity attaches," the Comment continues, liability for changed circumstances affecting a plan or design "has been specifically rejected as unrealistic and inconsistent with the thesis of discretionary immunity." Plan-or-design immunity is not ...


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