On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-851-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Skillman.
Plaintiff*fn1 appeals from a summary judgment dismissing her complaint against the state agency defendants alleging that she suffered personal injuries while swimming at Island Beach State Park on August 18, 2007 as a result of negligence by the lifeguards in failing to fly flags that would have warned her of the rough condition of the surf that day.
Plaintiff testified in her deposition that she did not know what time she arrived at Island Beach State Park that day, but thought that it was in the late morning, "before noon." After she went onto the beach, she noticed that the flags indicating the condition of the surf were "green." Shortly thereafter, she walked into the ocean. Less than ten minutes later, she felt "rip tides" and "undertows," and attempted to get out of the water because she "didn't feel safe." As she was walking toward the shore, a wave knocked a ten-year old boy into her legs. The impact of this collision broke plaintiff's leg and also resulted in a torn meniscus in her knee. After she was assisted out of the water, plaintiff was brought to the first aid station by a wheelchair.
The "Daily Lifeguard Record" for Island Beach State Park, which plaintiff does not dispute, indicates that the surf conditions the day of plaintiff's accident were "calm" in the "a.m." and "rough" in the "p.m." This record also indicates that the flag code at the park was changed from "G/G" (green over green) to "G/Y" (green over yellow) at 11:50 a.m. Plaintiff does not dispute that green over green are the appropriate flags to fly when the surf is calm and that green over yellow are the appropriate flags to fly when the condition of the surf is in the condition it was at the time of her accident. Plaintiff's sole claim of negligence is that the lifeguards should have changed the flags from green over green to green over yellow before rather than after her accident.
The radio log maintained by the lifeguards and personnel at the first aid station at Island Beach State Park indicates that there was only one request for a wheelchair on August 17, 2007, at 11:44 a.m., which would have been six minutes before the flags were changed from green over green to green over yellow. This request was made from lifeguard stand five, which was the lifeguard stand in the area where plaintiff was injured. However, the lifeguard captain testified that some requests for wheelchairs are not recorded in the radio log.
After the completion of discovery, defendants moved for summary judgment. Defendants argued that plaintiff's claim was barred by the immunity established by N.J.S.A. 59:4-8 "for an injury caused by a condition of any unimproved public property." Defendants also argued that the evidence would not support a finding that the lifeguards were negligent in failing to change the flags from green over green to green over yellow before plaintiff's accident or that the defendants' alleged negligence was a proximate cause of plaintiff's accident.
We conclude that no reasonable trier of fact could find that the defendants were negligent in failing to change the flags to green over yellow before plaintiff's accident. This conclusion makes it unnecessary to consider whether N.J.S.A. 59:4-8 provides immunity from this kind of claim*fn2 or whether defendants' alleged negligence was a proximate cause of plaintiff's accident.
Plaintiff did not present any evidence to dispute the statement in the "Daily Lifeguard Record" that the surf was "calm" in the "a.m." when the beach was first opened for swimming. Consequently, plaintiff did not present any evidence that defendants were negligent in initially flying green over green flags on the day of plaintiff's accident. Plaintiff's sole claim is that defendants were negligent in failing to change the flags from green over green to green over yellow before her accident.
However, plaintiff did not present any evidence that the surf changed from calm to rough a sufficient amount of time before her accident for the lifeguards to have observed this change in conditions and to have changed the flags before she entered the water. The only competent evidence that the surf became rough before the flags were changed was plaintiff's own testimony about that condition, and there is no evidence that plaintiff's observations of the condition of the surf were made any appreciable length of time before the flags were changed at 11:50 a.m.
Plaintiff's testimony concerning the time of her arrival at Island Beach State Park and entry into the surf was vague and conflicting. But even viewing her testimony and the other evidence presented on the motion for summary judgment in the light most favorable to plaintiff, her accident would have occurred no earlier than 11:30 a.m., which was fourteen minutes before a wheelchair was dispatched to the area of plaintiff's accident and only twenty minutes before the flags were changed. There is no evidence that the surf became rough before this time. Indeed, it could be inferred from the fact that plaintiff did not make any observation of a rough surf until she was already in the water that the change in the condition of the surf occurred around the time she entered the water.
Plaintiff relies in support of her negligence claim upon her answer to an interrogatory, which alleged that after her accident a lifeguard told her that "they should have changed the flags since this was the 12th rough surf injury that day." However, plaintiff's own deposition testimony did not support this allegation, and there is no other ...