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Bakley v. State

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 6, 2007

BARBARA BAKLEY, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. GLO-L-606-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 2, 2007

Before Judges Winkelstein and Fuentes.

Plaintiff Barbara Bakley appeals from the order of the Law Division dismissing her personal injury cause of action against the State Department of Environmental Protection (DEP). We affirm.

Plaintiff injured her ankle as a result of a fall on a walkway located in the Cape May Wetlands Wildlife Management Area. The property, consisting of 580.54 acres of unimproved land, was acquired in 1988 by the State and managed by the DEP.

Plaintiff was injured when a walkway, erected by unknown squatters to provide access to a floating dock, collapsed. Plaintiff alleges that on the day of the accident, she had gone fishing in a private boat, and used the walkway to get from the boat onto the dock that was located near her house. Plaintiff sued the State, alleging that, as the owner of the land, the State was responsible for the dangerous condition created by the walkway.

After conducting discovery, the State moved for summary judgment before the Law Division, arguing that plaintiff's claims were barred based on the Tort Claims Act immunity for injuries resulting from a condition of unimproved public property, N.J.S.A. 59:4-8; and because plaintiff had not established that the State had notice that the walkway constituted a dangerous condition, N.J.S.A. 59:4-2.

In opposition to the State's motion, plaintiff claimed that she had spent summers in the area where the accident occurred since she was a child. She had seen docks similar to the one used that day throughout that entire time. Plaintiff also produced the deposition testimony of Wayne Falck, the man she had gone fishing with on the day of the accident. Falck testified that for the past forty years, clammers and crabbers had used docks at this location.

Plaintiff also produced the expert report of Captain Louis B. Wary, Jr., a Professional Engineer who, after inspecting the accident site, and reviewing materials gathered through discovery, concluded that "the catwalk and dock was used and maintained by unknown squatters." Despite this, Wary opined that the State had been negligent in failing to order the removal of this "illegal dock," because DEP personnel had removed similar docks in the "immediate vicinity," in 1995.

After considering the documentary evidence presented and hearing oral argument from counsel, Judge McDonnell granted the State's motion. She gave the following explanation in support of her ruling:

Now, the question that presents itself here is whether the structure that was constructed apparently not to code without permits, without notice, without permission . . . changes the character of the land from unimproved to improved.

N.J.S.A. 59:4-8 provides that, "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."

In explaining the purpose of [this section], the Attorney General's Task Force commented that, "They reflect the policy determination that it is desirable to permit the members of the public to use the 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 the injuries arising therefrom as part of the price to be paid for the benefits." And that is quoted in Margolis and Novack, claims against public entities comment to N.J.S.A. 59:8-4 . . . the 2003 text.

In the context of the public policies underlying the statutory immunity for unimproved property, it's not difficult to identify the factors when property is improved to the extent that there is [an] artificial hazard.

So that look at the Freitag [v.] Morris County, [177 N.J. Super. 234 (App. Div. 1981)]. Here plaintiff argues that the public property is no longer unimproved because this dock, pier, catwalk structure that has been created is a substantial modification of the property from its natural state. And that this creates a situation that then implicates the obligation of the State to inspect and to maintain.

In Troth [v.] State, that's 117 [N.J.] 258 at 269 through 73, a 1989 case, the [Supreme Court] considered the meaning of unimproved public property. "The majority [of the Court] determined that because a dam in the State Wildlife Preserve represented a physical modification of the property from its natural state, the State did not enjoy immunity from liability for injuries caused by a dangerous condition of that dam structure. However, the [C]court also noted that the balance of the property remained unimproved property within the meaning of the liability."

In this case, I am satisfied that that a rogue dock does not cause a pristine area such as this to lose its unimproved character. That the size of the property, while I recognize it's along a Stone Harbor Boulevard and may easily be seen by residents and used by residents, that that alone should be sufficient to undercut the policies behind these immunities.

People do their best to build as close as they can to these protected and unimproved areas. And they cannot create these kinds of structures . . . for their own benefit and use and against every policy set forth in the documents which set up these preserves, and then expect to implicate inspections obligations and maintenance obligations by the State.

I am satisfied the State is entitled to summary judgment on the unimproved property Tort Claims Act.

We are in complete agreement with Judge McDonnell's well- reasoned analysis and ultimate conclusion. We thus affirm substantially for the reasons expressed therein.

Affirmed.

20070706

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