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Kain v. Gloucester City

Superior Court of New Jersey, Appellate Division

July 21, 2014

MICHAEL C. KAIN, Plaintiff-Appellant,
GLOUCESTER CITY, GLOUCESTER CITY SAIL, INC., ROBERT BEVAN, and CHARLES REED, jointly, severally, individually and in the alternative, Defendants-Respondents

Argued March 18, 2014

Approved for Publication July 21, 2014

Page 938

[Copyrighted Material Omitted]

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On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5091-10.

Kenneth G. Andres, Jr., argued the cause for appellant ( Andres & Berger, P.C., attorneys; Mr. Andres and Tommie Ann Gibney, of counsel; Abraham Tran, on the briefs).

Francis X. Donnelly argued the cause for respondents Gloucester City and Robert Bevan ( Mayfield, Turner, O'Mara & Donnelly, P.C., attorneys; Mr. Donnelly, of counsel; Robert J. Gillispie, Jr., on the brief).

James W. Carbin argued the cause for respondents Gloucester City Sail, Inc. and Charles Reed ( Duane Morris LLP, attorneys; Mr. Carbin, of counsel and on the brief).


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[436 N.J.Super. 470] OPINION


The plan or design immunity provision of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to :12-3, applies to injuries caused by " the plan or design of public property" approved " by the Legislature or the governing body of a public entity or some other body or a public employee exercising discretionary authority to give such approval . . . ." N.J.S.A. 59:4-6(a) (emphasis added). This case requires us to decide whether this provision exempts municipal defendants from liability for an allegedly dangerous condition in a pier designed by the Coast Guard and, specifically, whether the Coast Guard falls within the scope of the term, " some other body," under the statute. We decide that it does.

Plaintiff Michael Kain was a parent/chaperone for his sons' Boy Scout troop when they participated in a free educational sail provided by defendant Gloucester City Sail, Inc. (Gloucester City Sail) at the Gloucester City Pier a/k/a Freeman Pier (the pier). Plaintiff was injured when he stepped into an opening between the edge of the pier and its wooden bumpers as he was helping the last boy onto the " Northwind" schooner. He appeals from orders that granted the summary judgment motions of defendants on the grounds that his claims were barred by the TCA and the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11. We affirm.

[436 N.J.Super. 471] The Coast Guard purchased the pier in the 1940s and renovated it by installing a bulkhead, consisting of 5/8" thick interlocking steel sheathing, around the outside perimeter of the pier. Wood timbers were installed as fenders to protect the sides of ships from banging against the steel sheathing. The resulting design left openings between the edges of the pier and the wooden bumpers every few feet along the perimeter of the pier. The Coast Guard operated the pier as a military base until 1991, when it deeded the pier to Gloucester City (the City).

In 2008, the City purchased the " Northwind" schooner, which was to be operated by Gloucester City Sail, a nonprofit corporation created for the purpose of providing maritime education to children. Defendant Charles Reed was the director of operations at Gloucester City Sail and captain of the Northwind. Defendant Robert Bevan, an aide to the mayor of the City, is a member of the board of directors of Gloucester City Sail.

The Northwind is docked at one of two locations depending upon tidal conditions. During high tide, it is docked at a floating dock installed by the City to facilitate the safe boarding of boat passengers. However, at the time of the Boy Scout sail, it was low tide and so the Northwind was docked at the northeast corner of the pier. At this location, passengers board the schooner by a ladder from the side of the pier.

Both plaintiff and his wife were parents/chaperones for the free educational sail and two of their sons participated. Before they boarded, Reed gave a safety talk and advised the Boy Scout party that he would escort them individually across the pier and assist them in boarding via the ladder. Reed did not warn about the openings over the edge because he " felt no need to verbally say that" as they were obvious to observe. He guided the Boy Scout group, including plaintiff, past the pier's barricades and a safety fence with a " Keep Out Dangerous Pier Conditions" sign. Then, Reed stood on the pier at the top of the ladder while two crew members were positioned on the vessel at the bottom of the ladder to assist each of the passengers onto the schooner.

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[436 N.J.Super. 472] Reed helped six of the seven Boy Scouts down the ladder to the Northwind. When the last Boy Scout was being assisted onto the ladder by Reed, plaintiff was still on the pier. Reed had both of his hands on the child's hands. The other two crew members were holding the ladder on the deck of the boat waiting for the child to climb down. Then, without any instruction or invitation, plaintiff approached Reed from behind to help. Plaintiff's left leg went off the edge of the pier and down into an 11" x 23" opening between the edge of the pier and the wooden fenders attached to the pier. Plaintiff sustained injuries, which included a severe fracture of his right ankle that required multiple surgeries.

Plaintiff filed a complaint based on premises liability against all defendants. Summary judgment was granted to defendants Gloucester City and Bevan on the ground that the claim was barred by the " design or plan" immunity provided by the TCA. Plaintiff's claims against defendants Gloucester City Sail and Reed were dismissed as barred by the Charitable Immunity Act.

In this appeal, plaintiff argues that summary judgment was erroneously granted to all defendants. He argues that the design and plan immunity afforded by the TCA did not apply to the City and Bevan (collectively, the municipal defendants) because: the pier was designed by the Coast Guard, which is not a " public entity" under the TCA; the Coast Guard's design did not consider the use of the pier by civilian pedestrians for recreational purposes; defendants instituted a new plan or design but failed to abide by their own plans; and defendants knew the pier was in a dangerous condition but failed to provide appropriate warnings. He argues further that it was error to grant summary judgment based on design immunity because the City and Bevan failed to properly supervise the actions of Gloucester City Sail and Reed in the boarding of the Northwind. Plaintiff argues that the trial court erred in ruling that Gloucester City Sail and Reed were entitled to immunity under the Charitable Immunity Act because he was not a " beneficiary" of their charitable works and because Reed's actions were grossly negligent. Finally, plaintiff contends [436 N.J.Super. 473] that summary judgment was improper because there were genuine issues of material fact as to defendants' liability.

In reviewing a summary judgment decision, we apply the same standard as the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584, 46 A.3d 1262 (2012). Viewing the evidence " in a light most favorable to the non-moving party," we determine " if there is a genuine issue as to any material fact or whether the moving party is entitled to judgment as a matter of law." Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 38, 41, 34 A.3d 1248 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529, 666 A.2d 146 (1995)). We review questions of law de novo, State v. Gandhi, 201 N.J. 161, 176, 989 ...

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