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Fleuhr v. City of Cape May

July 30, 1997

WILLIAM FLEUHR, PLAINTIFF-APPELLANT,
v.
CITY OF CAPE MAY, DEFENDANT-RESPONDENT, AND JOHN DOE AND COUNTY OF CAPE MAY, DEFENDANTS.



On appeal from the Superior Court, Law Division, Cape May County.

Approved for Publication July 30, 1997.

Before Judges Long, A.a. Rodriguez and Cuff. The opinion of the court was delivered by Cuff, J.A.D.

The opinion of the court was delivered by: Cuff

The opinion of the court was delivered by CUFF, J.A.D.

Plaintiff William Fleuhr broke his neck while body surfing in the ocean. He sued defendant City of Cape May for failure to supervise the activities of bathers, failure to warn bathers of the danger posed by the ocean on that day, and failure to protect plaintiff from the dangerous ocean conditions. Plaintiff appeals from the order dismissing his complaint based on the unimproved property immunity, N.J.S.A. 59:4-8, afforded by the New Jersey Tort Claims Act (Tort Claims Act), N.J.S.A. 59:1-1 to 12-3. We reverse the dismissal of plaintiff's claim predicated on negligent supervision by lifeguards stationed at the municipal beach.

On August 31, 1993, plaintiff entered the ocean at the First Avenue Beach, which was owned, operated and maintained by defendant City of Cape May. Lifeguards were on duty at this beach when plaintiff entered the water. He alleges that the ocean was turbulent due to Hurricane Emily and that the water conditions created an unreasonable risk of harm to him. He contends that defendant was under a duty to provide a safe place for plaintiff to swim and that defendant had undertaken to supervise the beach and adjacent ocean water by stationing lifeguards at the First Avenue Beach. He contends that defendant breached its duty to provide a safe place for him to swim by permitting him and others to enter the ocean at that place on that day. He further contends that defendant breached the duty owed to him by failing to warn him of the dangerous surf conditions. As a direct result of the failure to warn him of the dangerous conditions and the negligent supervision by the assigned lifeguards, he alleges that he was knocked over by a strong wave and fractured several cervical vertebrae.

Defendant denied the allegations of the complaint and asserted that it was immune from suit pursuant to the unimproved property immunity afforded by the Tort Claims Act, N.J.S.A. 59:4-8. In reliance on this immunity, defendant moved for summary judgment, which was granted. In his written opinion, the motion Judge reasoned that the immunity granted under N.J.S.A. 59:4-8 precludes this action because "the injury was caused exclusively by the action of the ocean."

Our review must proceed in accordance with the general analytical approach of the Tort Claims Act and then with specific reference to the applicable statutory provisions. Troth v. State, 117 N.J. 258, 265-66, 566 A.2d 515 (1989). Generally, we must recognize that the Tort Claims Act reestablishes public entity immunity from suit unless the Act declares that a public entity or public employee may be liable. N.J.S.A. 59:2-1a; Manna v. State, 129 N.J. 341, 346, 609 A.2d 757 (1992); Troth, supra, 117 N.J. at 266. Moreover, any liability established by the Tort Claims Act is subordinate to or "trumped" by any immunity recognized by the Act. N.J.S.A. 59:2-1b; Tice v. Cramer, 133 N.J. 347, 356, 627 A.2d 1090 (1993).

There are three provisions of the Tort Claims Act which affect this case: N.J.S.A. 59:2-7, N.J.S.A. 59:3-11 and N.J.S.A. 59:4-8. N.J.S.A. 59:2-7 provides:

A public entity is not liable for failure to provide supervision of public recreational facilities; provided, however, that nothing in this section shall exonerate a public entity from liability for failure to protect against a dangerous condition as provided in [N.J.S.A. 59:4-1 to 4-10].

N.J.S.A. 59:3-11 is the public employee counterpart to N.J.S.A. 59:2-7; it provides:

A public employee is not liable for the failure to provide supervision of public recreational facilities. Nothing in this section exonerates a public employee for negligence in the supervision of a public recreational facility.

The Attorney General's Task Force Comments to these sections note that the immunity conferred for failure to supervise a public recreational facility represents a policy determination that public entity managers must remain free to conclude, without threat of liability, that supervision of public recreational facilities will not be provided. Comment on N.J.S.A. 59:2-7. On the other hand, "a public employee (and hence a public ...


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