June 29, 2010
JOHN F. LYNCH, ADMINISTRATOR AD PROS OF THE ESTATE OF ANNE MARIE LYNCH, PLAINTIFF-APPELLANT,
RONALD THORWART, SHAUN GARRITY, DAVID GARRITY, DEFENDANTS, AND CITY OF OCEAN CITY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-370-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: June 3, 2010
Before Judges Axelrad and Fisher.
Plaintiff John F. Lynch, in his administrative capacity for the Estate of Anne Marie Lynch ("Lynch"), appeals summary judgment dismissal of the complaint he filed against the City of Ocean City (the "City") based on negligent supervision and failure to enforce its municipal ordinance requiring completion of boat safety training. Plaintiff commenced his action against the City and other defendants*fn1 as a result of the death of his sixteen-year-old daughter who was fatally injured while operating a jet ski that she had launched from the City's boat ramp. The court found the City was immune pursuant to the Tort Claims Act ("the Act"), N.J.S.A. 59:2-4, failing to enforce any law, and also the undisputed facts did not support a claim of negligent supervision by the City's employee under N.J.S.A. 59:3-ll. We affirm.
Viewed most favorably for plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), the motion record reveals the following. On the date of the accident, Lynch's uncle gave her a jet ski he had borrowed from a friend. It is undisputed that both Lynch and her uncle were inexperienced in the operation of jet skis and neither had taken a boat safety course as required by the City's ordinance l8-7.2h, providing in part:
A person shall not operate a personal watercraft on the tidal waters within the jurisdiction of the City of Ocean City without having successfully completed a boat safety course approved by the Superintendent of the State Police . . . or a written test . . . .
Lynch launched the jet ski from the City's municipal boat ramp located on Tennessee Avenue after paying the municipal attendant the $10 ramp fee required for all vessels, including jet skis. Lynch operated the jet ski through the waterway and then collided with a dock in the l7th Street Lagoon, striking her head on the piling and sustaining a fatal injury.
It is undisputed the employee working at the boat ramp, James Lawrence, now deceased, did not inquire of Lynch or her uncle whether either had the appropriate training or competency to operate a jet ski. There were handouts for boating safety and licensure in the municipal building next to the ramp and the attendants generally facilitated the orderly launching at the boat ramp. However, the record reflects that such employees were not required to determine who would use the watercraft and their duties did not include checking for experience or a boat safety certificate as these employees were not responsible for enforcement of the municipal ordinance or maritime safety requirements.
Plaintiff produced reports by marine safety expert Marjorie Murtagh Cooke. According to her initial report, the City "failed to maintain their standard of safety at their Tennessee Avenue boat ramp by not ensuring that operators launching [personal watercraft] at their boat ramps have successfully completed a boat safety course as required by both the State and their own municipal ordinance." Expounding upon that opinion, Cooke indicated that if the boat ramp attendants had checked both Lynch and her uncle to see if they had successfully completed the boat safety course, permission to launch the jet ski would not have been granted. In her supplemental report, Cooke opined that the City "not only had an obligation to ask potential ramp users whether they possessed the required safety certificate . . . but to train their employees to notify the Marine Police if the necessary papers could not be produced, as required." The plaintiff's expert expressed the "professional opinion" that: the City of Ocean City failed to adequately enforce their requirement for possession of a boating safety certificate by specifically choosing not to adequately train their employees to notify their patrons, request the necessary certificate and follow-up with the Marine Police as necessary. [Emphasis added.]
Judge Daryl F. Todd, Sr. found the City immune from liability based on N.J.S.A. 59:2-4, which provides that "[a] public entity is not liable for any injury caused by adopting or failing to adopt a law or by failing to enforce any law." As the court noted, the requirement of a boat safety course or of proof of such course by a safety certificate deals with enforcement of the law. The court found the situation to be similar to that of Sharra v. City of Atlantic City, 199 N.J. Super. 535 (App. Div. l985), in which we held the failure of the city's director of public works to establish bicycle lanes on the boardwalk pursuant to a municipal ordinance granting such right did not give rise to liability to an injured cyclist based on N.J.S.A. 59:2-4. Judge Todd also found no negligence on Lawrence's part, noting that:
[t]his is not a case of somebody who was injured at the launch because of the failure to supervise a launch. The accident happened in an area beyond the control of the employee on duty. He was land-based and had the duties referred to with respect to parking and selling of goods and operation of the ramp. There is no issue of the employee controlling the operation of the area of the piling where the accident happened.
This appeal ensued.
On appeal, plaintiff renews his arguments made to the trial court. He contends his claim is about more than the City's failure to enforce its ordinance, urging it extends to the ramp attendant's failure to properly supervise a public recreational facility under N.J.S.A. 59:3-ll. To establish liability based on negligent supervision, the claimant must establish his or her injury occurred at a public recreational facility, the entity or employee undertook to provide supervision of the facility and the entity or employee was negligent in providing supervision. Fleuhr v. City of Cape May, 303 N.J. Super. 481 (App. Div. l997), rev'd on other grounds, l59 N.J. 532 (1999); Sharra, supra, l99 N.J. Super. at 539.
Plaintiff contends there is "no dispute" the first prong was met even though the accident did not occur at the municipal ramp but, rather, in the waters off the City's coast. According to plaintiff, the gravamen of his claim is the second prong of the undertaking of supervision of "a public recreational facility," urging the ramp attendant was more than a mere "ticket taker." See Morris v. City of Jersey City, 179 N.J. Super. 460, 464 (App. Div. l981). Plaintiff contends this prong was clearly met by the employee's undertaking supervision of the municipal ramp in all facets of safety and launching of appropriate watercraft, including jet skis, responsibility for the maintenance and cleanliness of the ramp, and supervision of the patrons using the ramp, including their ability to safely operate a motorized watercraft. Plaintiff further argues he has raised a jury question as to the third prong, i.e., the employee's negligence in supervision, noting it was apparent to the ramp attendant from the outset that Lynch and her uncle were inexperienced in the operation of the jet ski.
When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Based on our review of the record, with all favorable inferences to plaintiff, and the applicable law, we find plaintiff's arguments to be unpersuasive and affirm substantially for the reasons articulated by Judge Todd.
Immunity is the dominant consideration of the Act. Weiss v. N.J. Transit, 128 N.J. 376, 383 (1992). "[W]hen one of the Act's provisions establishes liability, that liability is ordinarily negated if the public entity possesses a corresponding immunity." Id. at 381 (citation omitted). Although plaintiff's claim is couched in terms of negligent supervision, he is basically asserting a failure of the City to enforce its municipal ordinance precluding use of the waterways by an unlicensed or untrained person such as Lynch. As plaintiff's expert opined, Lynch would not have been permitted to launch the jet ski from the ramp and the accident would not have occurred but for the ramp attendant's failure to inquire whether Lynch and her uncle had completed the boat safety course. Judge Todd correctly found the City to be expressly immune under N.J.S.A. 59:2-4 for such inaction.
We are also satisfied that even assuming plaintiff met the first prong of the negligent supervision test under N.J.S.A. 59:3-ll, plaintiff's arguments as to the second and third prongs fail as a matter of law based on the undisputed evidence as to the duties of the ramp attendants and the circumstances and location of Lynch's accident. Lynch was not injured by any object or condition related to the municipal ramp or in any proximity to the ramp. The ramp attendant's duties did not extend to supervising or patrolling the waterways.