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Posey v. Bordentown Sewerage Authority

March 18, 2002


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

Argued November 26, 2001

On certification to the Superior Court, Appellate Division.

This sad case involves the near drowning and subsequent death of a twelve-year old boy. The accident occurred in a pond that is located on private property and receives water from a stream in an adjacent public park. Plaintiffs allege that the stream and pond are not natural bodies of water, but rather are part of an integrated storm-water drainage system for which the Township of Bordentown and the County of Burlington are responsible. The legal issue presented is whether either or both of the public entities may be liable for the injuries sustained on private property under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. The trial court found that liability could not be imposed on either public entity and granted summary judgment to the Township and to the County. The Appellate Division affirmed. We hold that a public entity may be liable for a dangerous condition on private property that is proximately caused by the public entity's activities on public property, in this case, directing storm-drainage water onto private property.


The Law Division decided this case on a motion for summary judgment brought by defendants Bordentown and Burlington County. The evidence presented, therefore, must be "viewed in the light most favorable to the non-moving party," and all reasonable inferences must be drawn in favor of that party, here the plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 535-36 (1995). Because summary judgment in favor of the public entities was based solely on the situs of the accident——a pond on private property we begin our review of the evidence with a description of the area where the accident occurred.

Bossert Park is located in, and owned by, the Township of Bordentown. The park is separated from private property owned by Henry and Ruth Marken by a paved street known as Thorntown Lane. There is a stream, Thorntown Creek, that flows from the park into the Markens' property. To reach the Marken property, Thorntown Creek flows under Thorntown Lane by way of a culvert, a concrete tunnel six feet high and five feet four inches wide, that supports Thorntown Lane while allowing Thorntown Creek to pass underneath. Once past Thorntown Lane, the stream immediately exits the culvert into a pond. Water from the pond flows into another stream, also on the Marken property, and ultimately empties into the Delaware River Basin. Until the instant litigation, the Markens were unaware that either the pond or the stream was located on their property.

The pond is approximately thirty feet wide and varies in depth from four to twelve feet, depending on the amount of precipitation. The stream, on the other hand, is only two to three feet wide and six to ten inches deep. Both the stream and the pond are traditional congregating spots for children who fish in the pond, skip stones, and wade in the water on both sides of the culvert. Although children have been known to wade upstream of the culvert, the entrance to the culvert contains no physical barrier or warning sign to indicate the change in depth of the water on the pond side of the culvert.

On March 20, 1994, twelve-year old Earl Posey, Jr. and two other boys were walking in the ankle-deep water of Thorntown Creek in Bossert Park. Unlike his companions, Earl had never been to the stream or the pond before. At some point while walking in the creek, the other boys told Earl about the pond. The boys informed him that they thought the pond was approximately four or five feet deep. When Earl reached the culvert he and the other boys agreed to walk through it. Although Earl and one of the boys had never been in the tunnel before, the other boy had been in it a few times.

When the boys exited the culvert onto the Marken property the water level began to change quickly. One of the boys later testified at a deposition that, when the water level reached his knees, "[w]e just told [Earl] don't go any further ?cause it looked like [the water] was rising pretty fast on him, and then he just dropped." As the other boys climbed out of the pond and onto its banks, Earl, who was approximately five feet tall, disappeared under the water about nine feet from the culvert. As Earl tried in vain to surface, the two boys ran for help. By the time rescue personnel arrived and pulled Earl from the water, he had already suffered severe brain damage. Earl remained in a comatose state until his death in May or June 2001.

Earl's parents instituted the present litigation against the Markens, the Bordentown Sewerage Authority, the Township of Bordentown and the County of Burlington. Plaintiffs settled their claims against the Markens in 1997. The Sewerage Authority was granted summary judgment because plaintiffs failed to file a timely notice of claim under the TCA. Therefore, the Township and the County are the only remaining defendants in the case.

Plaintiffs' theory of liability against the public entities is based on the assertion that the pond was unnaturally and unexpectedly deep and, as such, constituted a dangerous condition for which the Township and the County should be liable under the TCA, N.J.S.A. 59:4-2. That the pond was not owned by the Township or the County is undisputed. Plaintiffs contend, however, that the pond is part of an integrated storm-water drainage system for which the Township and the County are responsible. Under plaintiffs' theory the integrated drainage system consists of the stream in the park, three storm-water drainage pipes that empty into the stream, and storm-water grates on Thorntown Lane, all of which empty into the pond on the Marken property by way of the culvert. Plaintiffs contend that the storm-water run-off into the stream is partially responsible for creating the pond on the Marken property, thereby significantly and artificially increasing the depth of the water immediately downstream from the culvert.

Plaintiffs further contend that installation of a sanitary sewer pipe by the Township, combined with scouring velocities of water coming out of the culvert, created a deep depression in the pond just downstream of the culvert. Plaintiffs' expert hypothesizes that, when the sewer pipe was installed, an excavation was dug that was backfilled with available material after the sewer pipe was placed in the ground. The expert further hypothesizes that the installation did not include erosion control techniques to prevent backfill material from being unstable and washing downstream, thus scouring or eroding the bottom of the pond. Moreover, because the culvert created a restriction on the flow of water, the water exited the culvert at a much higher velocity than that at which the stream normally flows. Thus, the expert concludes that the construction of the sewer line underneath the stream and the culvert's effect on the speed of the water combined to create a scouring effect whereby a deep depression was left on the pond side of the culvert.

Viewing the evidentiary materials in a light most favorable to the plaintiffs, the Township and the County each had a role in constructing and maintaining portions of the alleged integrated drainage system. The County first built the culvert in question in the 1920s. The County still owns the culvert and the retaining walls, and is responsible for inspecting and maintaining them. At some point after the culvert was constructed, either the County or the Township installed storm- water pipes that feed into the stream. One storm-water pipe is approximately one hundred yards upstream of the culvert, another is ten yards upstream of the culvert, and the third pipe is in the culvert itself. The Township maintains that it does not know who installed the three storm-water drainage pipes. Although the trial court stated that the Township is responsible for the storm-water drainage system, the court's subsequent written opinion indicated that the County installed the three pipes. The court noted that in 1940 and in 1958,

the County widened the culvert and added surface water drains and pipes to carry surface waters from Thorntown Lane and the surrounding area into the stream that leads into and through the culvert. However, it is also clear that once built and modified, except for infrequent inspections of the culvert itself and the drains, the County has for all practical purposes ceded the day-to- day control of the maintenance and functioning of the surface water drainage system including the culvert to the Township.

The Township, however, points to the County as being responsible for the storm-water pipe that is inside the culvert.

In addition to installing the storm-water pipes, either the Township or the County installed storm-water grates on Thorntown Lane to drain rain water and melting snow into the culvert. The County contends that the Township is responsible for storm-water run-off from Thorntown Lane because Thorntown Lane is a Township road. As noted above, however, the trial court indicated that the County had installed the storm grates. Therefore, although it is clear that water empties into the pond, at least by way of the grates on Thorntown Lane, triable issues of material fact exist concerning which of the two defendants installed the storm- water drainage pipes, whether an integrated drainage system exists, and whether it is maintained by the Township or the County.

As far as the sanitary sewer pipe is concerned, the trial court concluded during the summary judgment proceedings that the Township installed it. The trial court described the installation of the sanitary sewer pipe as follows:

At some unknown time, but inferentially when houses were being built on the lands surrounding the downstream end of the stream, an easement was secured from the Markens or a predecessor in title whereby the Township acquired the right to install and maintain a sewer pipe running beneath the Marken property, essentially perpendicular to the stream. This easement cuts across the stream at about the location of the deeper ponding water as it exits the culvert and the pipe was laid under the bed of the pond and the stream. Sewage is carried eventually to the treatment plant. In 1986 this easement and the pipe was [sic] conveyed to the Bordentown Township Sewer Authority which now has jurisdiction over sewer facilities within the Township.

Although the Sewer Authority was granted summary judgment and is no longer a party, plaintiffs contend that the Township is responsible for the installation of that ...

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