Fluehr v. City of Cape May

O’HERN, J.,

dissenting.

The Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 14-4, allows recovery against public employees and public entities when the claim is based on the negligent supervision of recreational activities. A slim but triable issue of fact was presented here concerning whether Cape May’s lifeguards were negligent in their supervision of the City’s beach. I would therefore affirm the judgment of the Appellate Division allowing the claim to proceed. I would *558 do so substantially for the reasons stated in its comprehensive opinion:

We agree with the motion judge that the beach and the ocean are unimproved property. We also agree that once a bather enters a body of water, such as a river, lake, ocean or bay which is unimproved, there can be no liability for injuries which occur solely due to conditions encountered in that unimproved body of water. Thus, a person who encounters turbulence, forceful waves or uneven surfaces and who is injured solely due to those conditions has no cause of action against the public entity or public employee. That is because the public entity and public employee have no obligation to improve natural conditions or to ameliorate inherent but dangerous features of unimproved property. In short, the public entity and public employees have no obligation to make unimproved property safe. Moreover, the public entity has no obligation to post signs or flags concerning the condition of the water and inform bathers if it is safe for them to enter the water. To that extent, we affirm the order granting summary judgment insofar as plaintiff asserts that the ocean constituted a dangerous condition and that the defendant had a duty to warn independent of its decision to provide lifeguards at the beach.

On the other hand, the decision to provide protective services at a beach and potential liability for negligent performance of those services does not implicate the reasons for the immunity for unimproved property. The unimproved property immunity is an extension of the immunity conferred on public entities and then-employees for failing to provide supervision of public recreational facilities. It is designed to encourage public entities to acquire and provide recreational facilities. It also confers on the public entity the authority to provide or not to provide supervision, to improve or not to improve property. The State, county or municipality may still provide access to the public to recreational areas such as a river, lake, bay or ocean. The public entity has no legal obligation to supervise the activities at these sites. However, once a public entity decides to supervise the activities at the site, such as by providing lifeguards, it has presumably determined that more benefits are derived by providing lifeguards than by exercising its right to do nothing. Once it has made that decision, the fundamental reason for its immunity vanishes.

[ 303 N.J.Super. 481, 488-89 , 697 A.2d 182 (App.Div.1997).]

I add only these observations:

I

A.

The City invokes the maxim that “[w]hen both liability and immunity appear to exist, the latter trumps the former.” Tice v. Cramer, 133 N.J. 347, 356 , 627 A.2d 1090 (1993). In this instance, the City is referring to the general immunity for the “natural *559 condition” of the beach. See N.J.S.A. 59:4-8. As illustrated by the facts in Tice , the Tice rule establishes the predominance of sovereign immunity when the bases of both liability and immunity derive from the same injurious conduct. Tice , for example, involved an accident caused by a police car that was engaged in a hot pursuit of a fleeing suspect. The issue of whether immunity trumped liability, or vice versa, arose because various sections of the TCA governing the same conduct pointed in different directions if one assumed that the. pursuing police officer was negligent. N.J.S.A 59:3-1a, allowing for recovery from public employees to the same extent as private persons for injuries caused by an employee’s acts or omissions, appeared to provide a basis of direct liability for the officer, and N.J.S.A. 59:2-2a supported vicarious liability for the municipality. Tice, supra, 133 N.J. at 353-54 , 627 A.2d 1090 . At the same time, both the officer and the town appeared immunized by N.J.S.A 59:5-2b(2), which establishes immunity for injuries caused by “an escaping or escaped person,” and N.J.S.A. 59:3-3, which protects public employees acting “in good faith in the execution or enforcement of any law.” Tice, supra, 133 N.J. at 354 , 627 A.2d 1090 . The police officer’s conduct was unitary. The officer was driving negligently but was pursuing a fleeing felon in good faith. We said the express immunity for good faith pursuit made the officer and municipality immune.

The Tice rule — that immunity trumps liability — does not apply in this ease because there were two separate but concurrent causes of plaintiffs injury: the natural condition of the ocean waves and the negligence of Cape May’s lifeguards. Only one standard governs the lifeguards’ conduct. Unless the facts conclusively established that no rational fact finder could find that the lifeguards’ negligent conduct was not a contributing cause of the injury, there is no immunity to trump that standard. Although there are two causes of injury, the City fails to explain why the immunity attributable to one cause would trump liability with respect to the concurrent cause. The municipality’s immunity for the natural condition of the ocean has no effect, trumping or *560 otherwise, on the municipality’s liability for the alleged negligence of its lifeguards.

B.

The City also suggests in its brief that liability cannot be based on the lifeguards’ negligence because the accident was exclusively caused by a wave striking the plaintiff, causing his head to strike the ocean floor. That argument begs the question of concurrent causation. Plaintiff does not contend that the lifeguards drove his head into the sand. He contends that he would not have been in the surf in the first place had the lifeguards exercised due care. See Kelly v. Gwinnell, 96 N.J. 538, 543 , 476 A.2d 1219 (1984) (explaining how negligence of social host may create risk of intervening harm). To dismiss plaintiff’s negligence claim based on a lack of causation is somewhat like telling the passengers on the Titanic that they may not complain that the owners told the captain to steam ahead into poor weather because, after all, it was the iceberg that caused them to be thrown into the sea.

If that is too facile a response, I repeat what we said in Weiss v. New Jersey Transit, 128 N.J. 376, 380 , 608 A.2d 254 (1992):

To state the principles applicable to [a tort claim] action is easy. See Rochinsky v. State, 110 N.J. 399 , 541 A.2d 1029 (1988). The Court is frequently divided when it comes to their application because to pin down the concept of causation in law is so difficult. See, e.g., Troth v. State, 117 N.J. 258 , 566 A.2d 515 (1989) (did the legislative immunity with respect to the maintenance of natural lands take precedence over the statutory liability for a defective condition of a man-made dam?); Kolitch v. Lindedahl, 100 N.J. 485 , 497 A.2d 183 (1985) (did the legislative immunity for establishing a speed limit take precedence over a negligent failure to warn of dangerous curve in the road?). At first glance, the eases might appear to be inconsistent, allowing a cause of action in Troth , but not in Kolitch or Rochinsky . In fact, each case involves a search for a unifying principle — to identify the cause of the accident, e.g., in Troth , was it the flowing waters or the artificial structure that caused the injury, and to ask if that identified cause or condition is one that the Legislature intended to immunize.

So too here, we must ask if the “identified cause,” the negligence of the lifeguards, is a cause that the Legislature intended to immunize.

*561 The majority’s concerns about the California Legislature’s 1987 amendment of its Tort Claims Act in response to Gonzales v. City of San Diego, 130 Cal.App.3d 882 , 182 Cal.Rptr. 73 (1982), were presaged by the Appellate Division and carefully handled in its opinion.

The flaw in the Gonzales decision was that the conduct of the lifeguards turned an unimproved beach into a “hybrid” form of improved property.

The Gonzales “hybrid condition” rationale is thus directly inconsistent with the plain meaning of the absolute immunity language embodied in section 831.2 [of the California TCA], Moreover, the Gonzales court imposed “ ‘dangerous condition’ liability, under section 835, for the City’s failure to warn the beach user of the ‘hybrid dangerous condition.’ A component of the ‘hybrid dangerous condition,’ however, was the City’s failure to warn of the natural rip current. In other words, the City’s ‘failure to warn’ is treated not only as the basis for ‘dangerous condition’ liability, but also as an integral part of the dangerous condition itself. The circularity of using the City’s ‘failure to warn’ in two distinct capacities to establish liability completely emasculates natural condition immunity.”

[Geffen v. County of Los Angeles, 197 Cal.App.3d 188 , 242 Cal.Rptr. 492, 495 (1987) (citation omitted).]

The 1987 amendment of the California TCA responded to that circular reasoning in Gonzales . Section 831.21 of the California TCA now provides:

(a) Public beaches shall be deemed to be in a natural condition and unimproved notwithstanding the provision or absence of public safety services such as lifeguards, police or sheriff patrols, medical services, fire protection services, beach cleanup services, or signs. The provisions of this section shall apply only to natural conditions of public property and shall not limit any liability or immunity that may otherwise exist pursuant to this division. (Emphasis added.) 4

The liability that “otherwise exists” in New Jersey is under N.J.S.A. 59:3-11, which expressly declines to exonerate “a public *562 employee for negligence in the supervision of a public recreational facility.” Plaintiff should have the opportunity to attempt to prove that Cape May’s lifeguards contributed to cause his injuries and to have a jury evaluate the causation question and assess the municipality’s liability, if any, for his broken neck. At the summary judgment stage, a court may not usurp the jury’s role and declare without benefit of a factual hearing that the surf, and only the surf, caused the harm.

II

An even more significant reason impels me to reject the City’s arguments. To accept the City’s arguments would mean that public entities providing lifeguard service have no duty to save drowning ocean bathers. . For that is the essence of the City’s reasoning. A child who ventures too far into the surf may be in danger of drowning as a result of being struck by a wave. Under the City’s argument, a paid public lifeguard would be under no legal duty to exercise ordinary care to save that drowning child from the surf because it is absolutely immune if a wave strikes the child or sucks the child out to sea. That would be bad law and bad public policy.

Promotion of tourism has always been a major item on our State’s agenda. Television viewers and radio listeners throughout the area cannot forget the refrain made familiar by a former governor: “New Jersey and You, Perfect Together.” In 1997, tourists spent $25.5 billion in our state, making tourism New Jersey’s second largest industry. The Jersey Shore is the State’s dominant tourist attraction. We would not want to have to tell tourists that oür posted lifeguards have no legal duty to protect them.

The importance of lifeguards to the shore economy is immediately apparent to anyone visiting our beaches on a summer afternoon. A short ride along the coast reveals that bathers park their cars, pay for beach badges, and unfold their towels near those points where shore municipalities have stationed lifeguards. *563 The unpatrolled beaches between the lifeguard stands are relatively unused, even though access to those beaches may be free. Perhaps the best evidence of the link between lifeguards and beach revenue is the fact that most seashore municipalities choose to fund lifeguard programs despite the fact that N.J.S.A 59:2-7 5 protects them from being sued for declining to do so. Some beach communities designate portions of their beaches as “protected and established” bathing beaches and prohibit bathing except at such beaches and when lifeguards are provided. State v. Oliver, 320 N.J.Super. 405, 418 , 727 A.2d 491 (App.Div.1999).

Although the dominant theme of the TCA is immunity, Malloy v. State, 76 N.J. 515, 519 , 388 A.2d 622 (1978), the Act makes a careful balance between immunity and liability. The Act declares

the public policy of this State [to be] that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein. All of the provisions in this act should be construed with a view to carry out the above legislative declaration.

ÍN.J.S.A 59:1-2.]

A fair and uniform principle of the Act is that public entities should be liable for their negligent supervision of recreational' facilities. N.J.S.A 59:3-11. The State of Hawaii (whose beaches rival New Jersey’s as a destination for tourists) has the same public policy. The Hawaii Supreme Court has held that “[m]embers of the public who patronized [the City’s beach] had the right to assume that the lifeguards on duty at the beach were qualified for the duties to which they were assigned. They had the right to rely upon the competence and vigilance of these City employees.” Kaczmarczyk v. City and County of Honolulu, 65 Haw. 612 , 656 P.2d 89, 93 (1982).

To sum up, the City of Cape May argues that it is entitled to absolute immunity based upon the unimproved property immunity, *564 N.J.S.A. 59:4-8, because the injury was caused exclusively by a wave, one of the naturally occurring forces of the ocean. “Each subsection [of the Act however] should be read with respect to the subject matter of the others and in harmony with each other and with the whole.” Brown v. Brown, 86 N.J. 565, 577 , 432 A.2d 493 (1981) (citations omitted). We ought not lose sight of the fact that the impetus for the enactment of the TCA was the Court’s decision in Willis v. Department of Conservation and Economic Development, 55 N.J. 534 , 264 A.2d 34 (1970), abolishing sovereign immunity. In Willis , a three-year-old child was bitten after she attempted to feed sugar to a caged bear. Id. at 535 , 264 A.2d 34 . It was not contended that the intervening cause of the child’s injury, the bear’s attack, insulated the park attendants from liability for negligent supervision. The public policy of the State is that public entities providing paid lifeguard service and charging admission to their beaches do have a legal duty to use ordinary care to protect bathers in peril.

HANDLER and STEIN, JJ., join in this opinion.

For reversal — Chief Justice PORITZ and Justices POLLOCK, GARIBALDI and COLEMAN — 4.

For affirmance — Justices HANDLER, O’HERN and STEIN— 3.

Our Appellate Division took pains in its ruling to explain:

Moreover, the public entity has no obligation to post signs or flags concerning the condition of the water and inform bathers if it is safe for them to enter the water. To that extent, we affirm the order granting summary judgment insofar as plaintiff asserts that the ocean constituted a dangerous condition and that the defendant had a duty to warn independent of its decision to provide lifeguards at the beach.

[ 303 N.J.Super. at 489 , 697 A.2d 182 .]

"A public entity is not liable for failure to provide supervision of public recreational facilities; provided, however, that nothing in this section shall exonerate a public entity from liability for failure to protect against a dangerous condition as provided in [N.J.S.A. 59:4-1 to 4-10.]”