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Fleuhr v. City of Cape May

May 26, 1999

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



The opinion of the court was delivered by: Coleman, J.

Argued April 28, 1998

On certification to the Superior Court, Appellate Division, whose opinion is reported at 303 N.J. Super. 481 (1997).

This is a sad case in which a bather broke his neck while swimming at a public beach on the New Jersey shore. The legal issues are whether the New Jersey Tort Claims Act's (TCA) immunity for unimproved public property, N.J.S.A. 59:4-8, applies to a claim filed by a surfer for injuries caused by a large wave while using an oceanfront beach, and whether the surfer's own conduct was the legal cause of his accident. The trial court held that the public entity has immunity. The Appellate Division in a published opinion disagreed and reversed. 303 N.J. Super. 481, 490-91 (1997). We granted certification, 152 N.J. 12 (1997), and now reverse. We hold that the surfer's conduct and the natural conditions of the ocean were the legal causes of the accident.

I.

The Law Division decided the case on defendant City of Cape May's motion for summary judgment. We are therefore compelled to accept plaintiff's version of the facts and give plaintiff the benefit of all favorable inferences. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520 (1995); Judson v. Peoples Bank & Trust Co., 17 N.J. 67 (1954). The underlying accident occurred on August 31, 1993, while plaintiff was bathing in the ocean surf at First Avenue Beach, which was operated by the City of Cape May. Plaintiff, an experienced surfer, arrived at the beach at 10:00 a.m. and remained there until the accident occurred at 3:00 p.m. While surfing, plaintiff was struck by a number of large waves that tossed him about in the surf and caused him to strike his head on the ocean floor. Plaintiff suffered a severe spinal cord injury described as a broken neck.

On the day of plaintiff's injuries, Hurricane Emily was located off the coast of North Carolina. Due to the presence of the hurricane, the National Hurricane Center issued hurricane watches and warnings along the Eastern seaboard from North Carolina to Delaware. In a report prepared by Henry Berger, a recreation and sports consultant hired as an expert by plaintiff, Berger opined that the hurricane increased the size of the waves, the strength of the undertow, and the dangerousness of the ocean surf at First Avenue Beach on the day of plaintiff's accident. The parties are also in agreement that the "dangerous condition" giving rise to the alleged duty to warn or supervise was the "ocean conditions" caused by the presence of Hurricane Emily off the coast of North Carolina.

At the time of the accident, First Avenue Beach was patrolled by lifeguards employed by defendant City of Cape May. The Cape May Beach Patrol kept a daily log of the conditions at the beach. The log entry for August 31, 1993, described the surf conditions as "choppy" and the bathing conditions as "poor to fair." At the bottom of the log was written, "GUARDS CAUTION TO WATCH SURF [CONDITIONS]. UPDATES WILL BE GIVEN THROUGHOUT THE DAY ('EMILY')." Allan Pappas, one of the two lifeguards on duty at the time of plaintiff's accident, testified at a deposition that he did not recall seeing that report or receiving any updates on the hurricane.

In the same deposition, Pappas testified that, at the time of plaintiff's accident, Fred Lewis was the second lifeguard on duty at First Avenue Beach. Pappas also stated that after they were alerted that plaintiff had been injured, Lewis went to plaintiff's aid. At that point, Pappas "pulled bathers out of the water" as a safety precaution because, with his partner preoccupied, he did not feel he could adequately monitor the entire beach by himself.

Lieutenant John Schellenger, the supervisor of the Cape May lifeguards at the time of plaintiff's accident, also was deposed. He testified that the duties of the lifeguards were to watch the beach and the bathers, and to monitor the conditions of the waves. He testified that Cape May did not have a flag system or loud speaker system to warn bathers of dangerous conditions. Pappas explained that although such systems were not in place, he nevertheless communicated with the bathers verbally and by using a whistle or hand signals.

Plaintiff's expert opined that it was reasonably foreseeable by Cape May beach management personnel that Hurricane Emily could result in dangerous and life-threatening conditions. He concluded that Cape May deviated from the proper standard of care by failing, under the circumstances, to have a procedure in place for warning bathers or closing the beach to bathers. Berger concluded that "[b]ut for these failures in the management of Cape May beaches for the safe protection of bathers, this incident and the serious injury sustained by William Fleuhr were preventable."

In his complaint, plaintiff alleged claims against the City of Cape May for negligent supervision, failure to warn of the dangerous conditions posed by the ocean on the day of his accident, and failure to protect him from those hazards. The trial court granted the City of Cape May's motion for summary judgment on two grounds. First, the trial court held that the City was protected by the unimproved property immunity of the TCA, N.J.S.A. 59:4-8. Fleuhr, supra, 303 N.J. Super. at 483. Second, the trial court determined that the unimproved property immunity under N.J.S.A. 59:4-8 trumped the imposition of liability for negligent supervision provided under N.J.S.A. 59:3-11. Id. at 484.

The Appellate Division reversed. Id. at 481. It interpreted Kleinke v. City of Ocean City, 163 N.J. Super. 424 (Law Div. 1978), overruled in part by Sharra v. City of Atlantic City, 199 N.J. Super. 535 (App. Div. 1985), as holding that the unimproved property immunity did not override liability for negligent supervision of a public beach. Fleuhr, supra, 303 N.J. Super. at 487. Noting that it was not bound by federal cases interpreting the TCA, the Appellate Division also rejected the Third Circuit's interpretation of New Jersey law in Kowalsky v. Long Beach Township, 72 F.3d 385 (3d Cir. 1995). Fleuhr, supra, 303 N.J. Super. at 488.

The Appellate Division held that a municipality has no obligation to make unimproved property safe. Id. at 488-89. It affirmed the order granting summary judgment in defendant's favor on plaintiff's claim that the ocean constituted a dangerous condition and that defendant had a duty to warn independent of its decision to provide lifeguards at the beach. Id. at 489. It distinguished, however, a public entity's decision not to provide protective services at a beach from a public entity's liability for negligent performance of those services once undertaken. Ibid. The Appellate Division stated that "recogni[zing] a cause of action for negligent performance of lifeguard services at a beach . . . [would] avoid[] the anomalous result of imposing liability for negligent performance of lifeguard services at a municipal pool while immunizing the same actions due to the natural rather than artificial nature of the swimming hole." Id. at 490.

II.

Defendant City of Cape May presents a two-fold argument. First, it contends that the Appellate Division violated the basic rules for determining whether immunity exists under the TCA. It asserts that even if a valid claim has been alleged, and it contends that the claim in the instant action is not valid, the basic rule is that immunity prevails over liability. Second, defendant contends that the claim for negligent supervision or negligent provision of protective services must fail because a public entity cannot be held liable for injuries caused exclusively by a wave, one of the naturally occurring forces of the ocean, based on the unimproved property immunity, N.J.S.A. 59:4-8.

Plaintiff concedes that both the trial court and the Appellate Division properly rejected his claim that the ocean constituted a dangerous condition on public property for which defendant had a duty to warn bathers independent of providing lifeguards. Plaintiff argues, however, that he should be permitted to pursue his claim for negligent supervision because defendant decided to provide lifeguard services. Unlike defendant's position, plaintiff and the Appellate Division focused upon the activity on the public property -- the alleged failure of the lifeguards properly to supervise the beach -- rather than on the condition of the public property itself.

Amicus curiae Ocean County Joint Insurance Fund (OC) argues that when both a liability and an immunity provision appear to apply to a TCA case, the immunity provision trumps the liability provision. OC observes that in other cases in which New Jersey courts have suggested that a negligent supervision claim could go forward, the unimproved property immunity was not at issue. OC maintains that in the present case the unimproved property immunity is directly implicated and, therefore, must trump the imposition of any liability under the TCA.

Amici curiae Surfers' Environmental Alliance-New Jersey (SEA-NJ) and Surfrider Foundation (collectively S&S) argue that the Appellate Division's decision is based on the fiction that a lifeguard could have taken action to prevent plaintiff's injury. S&S maintain that the action of the ocean, particularly the waves, cannot be predicted with any certainty in advance. For that reason, even the most vigilant lifeguards are not guarantors of the safety of those who venture into the ocean. S&S are concerned that, as a result of the Appellate Division's decision, municipalities will address the potential dangers of the ocean by restricting access to coastal waters, especially when the ocean is rough, thereby unduly limiting those who revel in the challenges presented by rough, breaking seas. Alternatively, municipalities will remove lifeguards from the beach to avoid liability, thereby adversely affecting those people who prefer to bathe while protected by lifeguards.

III.

The determination of whether plaintiff should be permitted to proceed with his claim against the public entity that its lifeguards were negligent in their supervision of the beach in failing either to warn of the choppy surf conditions caused by Hurricane Emily or in failing to evacuate the beach entirely requires an analysis of several subsections of the TCA. Troth v. State, 117 N.J. 258, 265-66 (1989).

-A-

The TCA, N.J.S.A. 59:1-1 to 13-10, was enacted for the purpose of reestablishing the general rule immunizing public entities from liability for injuries to others. Brooks v. Odom, 150 N.J. 395, 402 (1997). It was not enacted for the purpose of creating liability. Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 110 (1996); New Jersey Property-Liab. Ins. Guar. Ass'n v. State, 195 N.J. Super. 4, 11 (App. Div.), certif. denied, 99 N.J. 188 (1984). Municipalities such as defendant fall within the purview of the TCA. N.J.S.A. 59:1-3 (defining "public entity" to include municipalities); see Wright ex rel. Kemp v. State, 147 N.J. 294, 309 (1997). Generally, immunity for public entities is the rule and liability is the exception. N.J.S.A. 59:2-1b; Garrison v. Township of Middletown, 154 N.J. 282, 286 (1998); Collins v. Union County Jail, 150 N.J. 407, 413 (1997); Wright ex rel. Kemp, supra, 147 N.J. at 299; Bombace v. City of Newark, 125 N.J. 361, 372 (1991). In contrast, immunity of a public employee under the TCA is the exception. Fielder v. Stonack, 141 N.J. 101, 118 (1995). "Except as otherwise provided by [the TCA], a public employee is liable for injuries caused by his act or omission to the same extent as a private person." N.J.S.A. 59:3-1a. Any immunity provided a public employee must be independent of a public entity's immunity under the TCA. The source of a public employee's immunity can be the TCA itself, N.J.S.A. 59:3-1b, or any other statute or common law. Fielder, supra, 141 N.J. at 118; Chatman v. Hall, 128 N.J. 394, 404-05 (1992).

-B-

N.J.S.A. 59:2-7 establishes a standard for determining whether a public entity may be liable for negligent supervision of a public recreational facility. It 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 -9]." A separate relevant provision of the TCA deals with public employees. 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." N.J.S.A. 59:3-11. Although both of those statutes are relevant to issues of liability, neither addresses the public entity's claim of immunity.

The City of Cape May contends that it is entitled to immunity pursuant to N.J.S.A. 59:4-8 and -9. The unimproved public property immunity provides:

"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.]"

Section 4-9, titled "Unimproved and unoccupied portions of certain lands-immunity," provides:

"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.]"

The Comment on Sections 4-8 and 4-9 expresses the policy determination underlying the unimproved property immunity:

"[I]t 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. [Comment on N.J.S.A. 59:4-9.]"

The Comment also states:

"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 [approximately 915,000] 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. [Ibid.]"

Plaintiff no longer contends that the oceanfront beach was improved property, which, if true, would have precluded the application of the unimproved property immunity. Plaintiff argues instead that the negligent supervision by the lifeguards in combination with the natural conditions of the ocean produced his injuries, and, therefore, any immunity under N.J.S.A. 59:4-8 and -9 should not override liability. In rejecting that argument, the trial court relied on the Third Circuit's decision in Kowalsky.

In Kowalsky, the court granted summary judgment in favor of two municipalities that had been sued by bathers injured at a municipal beach by large waves created by Hurricane Gustav. 72 F.3d at 392. The Kowalsky court found that the public entities were immunized from the plaintiffs' claims under the unimproved property immunity of Section 4-8 and held that the ocean waves, which caused the plaintiffs' injuries, were natural conditions of unimproved property. Id. at 390. The Kowlasky court essentially found as a matter of law that the natural condition of the ocean rather than any negligent supervision by lifeguards proximately caused plaintiff's injuries. The facts in the present case also allow us to dispose of the appeal on the theory of legal causation without reaching the merits of the immunity claim.

We note, however, that our TCA is patterned after the California Torts Claim Act. After Gonzales v. City of San Diego, 182 Cal. Rptr. 73 (Ct. App. 1982), held that alleged negligent supervision of a public beach by lifeguards was not covered by California's unimproved public property immunity, the California Legislature in 1987 overturned that decision by enacting Cal. Gov. Code § 831.21. That statutory amendment essentially provides that the presence or absence of lifeguards or signs does not alter the absolute immunity provided for unimproved public property. Cases involving accidents that predated the amendment have criticized Gonzales severely. See, e.g., Morin v. County of Los Angeles, 263 Cal. Rptr. 479, 483-85 (Ct. App. 1989) (stating that Gonzales "represents an unwarranted restriction of sovereign immunity and should not be followed"); Rombalski v. City of Laguna Beach, 261 Cal. Rptr. 820, 828-33 (Ct. App. 1989) (Crosby, Acting P.J., Concurring) (stating hybrid theory of Gonzales is unsound and unnecessary); Geffen v. County of Los Angeles, 242 Cal. Rptr. 492, 494-95 (Ct. App. 1987) (stating Gonzales hybrid condition rationale is directly inconsistent with the plain meaning of Cal. Gov. Code § 831.2).

Since 1987, California courts, like the Third Circuit in Kowalsky interpreting the TCA, have consistently refused to permit recoveries against municipalities for injuries proximately caused by natural conditions of the ocean, regardless of whether lifeguards were present. See, e.g., Knight v. City of Capitola, 6 Cal. Rptr. 2d 874 (Ct. App. 1992) (holding no liability for failure to warn for bodysurfing injury occurring while lifeguard present); Tessier v. City of Newport Beach, 268 Cal. Rptr. 233 (Ct. App. 1990) (holding city not liable for diving injury because ocean constitutes natural condition); Morin, supra, 263 Cal. Rptr. 479 (holding hazardous recreational immunity immunized county from liability for plaintiff's ocean diving injury); City of Santa Cruz v. Magna, 244 Cal. Rptr. 105 (Ct. App. 1988) (holding presence of lifeguards did not remove city's immunity for plaintiff's river diving injury resulting from natural condition of public property); Geffen, supra, 242 Cal. Rptr. 492 (holding unimproved property immunity immunized county from plaintiff's ocean diving injury).

We recommend that the New Jersey Legislature also revisit the issue whether Section 4-8 immunity covers acts of omission ...


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