(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued April 28, 1998 -- Decided May 26, 1999
COLEMAN, J., writing for a majority of the Court.
This appeal in a personal injury action presents issues regarding municipal liability for injuries to a
swimmer in the ocean off the shore of a public beach at which lifeguards were stationed. The injured person,
an experienced surfer, had been present and surfing at First Avenue Beach, a public beach operated by the
City of Cape May (City), since 10:00 a.m. on August 31, 1993, a day on which hurricane watches and
warnings had been issued along the Eastern seaboard from North Carolina to Delaware due to the presence
of Hurricane Emily off the North Carolina coast. At 3:00 p.m., the surfer was struck by large waves and
tossed about in the surf; he struck his head on the ocean floor and suffered a severe spinal injury.
On the day of the accident, the daily log of beach conditions maintained by the City's Beach Patrol
described the surf conditions as “choppy” and bathing conditions as “poor to fair.” The log contained a note
reading “guards caution to watch surf [conditions]. Updates will be given throughout the day (Emily),” but
neither of the two lifeguards on duty at the beach that day testified to an awareness of that notation or of
any updates. When the surfer was injured, one guard assisted him and the other directed bathers to leave
the water as a safety precaution because he did not feel that he could monitor the beach adequately by
himself. After the surfer was tended to, the lifeguards reopened the beach to swimmers.
The injured surfer sued Cape May on grounds of negligent supervision, failure to warn of the
dangerous ocean conditions, and failure to protect him from the dangerous conditions. The City moved for
summary judgment in its favor and the trial court granted the motion, holding that the City was immune
from liability under the “unimproved property” immunity in the New Jersey Tort Claims Act (TCA) and that
that provision of the TCA trumped the imposition of liability for negligent supervision provided in another
section of the TCA.
On appeal, the Appellate Division affirmed the portion of the trial court order that held in the
City's favor on the surfer's claim that the ocean constituted a dangerous condition and that the City had a
duty to warn apart from its decision to provide lifeguards at the beach. The court held, however, that
because the City had decided to provide lifeguard services, the surfer had a cause of action for negligent
performance of lifeguard services, and reversed the grant of summary judgment on that basis. The Supreme
Court granted the City's petition for certification.
HELD: A reasonable jury could find only that the surfer's accident was caused by the natural conditions of
the ocean, a situation for which a public entity is immune, and that any negligence by the lifeguards was not
a proximate cause of the accident, so the public entity is entitled to summary judgment in its favor.
1. The TCA was enacted to reestablish the general rule of immunity of public entities from liability for
injuries to others and was modeled after the California Tort Claims Act. California courts since 1987
consistently have refused to permit tort recoveries against public entities for injuries proximately caused by
natural conditions of the ocean, regardless of the presence of lifeguards. The injured surfer in this case
asserts that liability should be found because his injuries were caused by the negligent supervision by the
lifeguards in combination with the natural conditions of the ocean. The Court recommends that the
Legislature revisit the question whether the immunity provided in Section 4-8 of the TCA extends to acts of
omission and of commission by lifeguards. (pp. 10-16)
2. The surfer knew the conditions of the ocean and appreciated the risks associated with surfing in such
conditions. One of the two lifeguards on duty had approximately twenty years of experience as a lifeguard in
Cape May, with more than half of that time at the beach in question, and he found no reason to close the
beach to swimming either before or after the surfer's accident. Any alleged negligence of the lifeguards is
too remotely or insignificantly related to the accident to be considered a legal, or proximate, cause of the
accident. (pp. 17-19)
The judgment of the Appellate Division remanding the matter for trial is REVERSED and
judgment is entered for the City of Cape May.
JUSTICE HANDLER dissenting, is of the view that in adopting the TCA, the Legislature intended
principles of comparative negligence to apply in a situation in which distinct, multiple or concurrent causes of
injury exist, only one of which confers governmental immunity. Here, the record is such that there should be
a trial at which it can be determined whether negligent supervision by the City's lifeguards substantially
increased the risk of injury to the surfer presented by the condition of the ocean and whether that increased
risk outweighs other causes of accidental injury attributable to either or both the condition of the ocean and
the surfer's own negligence.
JUSTICE O'HERN dissenting, agrees with the Appellate Division that the TCA provides an immunity from
liability for any failure of the City to warn of a dangerous condition of the ocean and that there is a triable
issue of fact concerning the negligence of the City's lifeguards in supervising the beach. An immunity
provision does not prevail over a liability provision when there are separate but concurrent causes of injury.
Moreover, New Jersey's public policy is that public entities that provide paid lifeguard services and charge
for beach admission have a legal duty to use ordinary care to protect bathers in peril.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK and GARIBALDI join in JUSTICE
COLEMAN's opinion. JUSTICE HANDLER has filed a separate dissenting opinion in which JUSTICES
O'HERN and STEIN join. JUSTICE O'HERN has filed a separate dissenting opinion in which
JUSTICES HANDLER and STEIN join.
SUPREME COURT OF NEW JERSEY
A-
136 September Term 1997
WILLIAM FLEUHR,
Plaintiff-Respondent,
v.
CITY OF CAPE MAY,
Defendant-Appellant,
and
JOHN DOE and COUNTY OF CAPE MAY,
Defendants.
Argued April 28, 1998 -- Decided May 26, 1999
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
303 N.J. Super. 481 (1997).
Gerald J. Corcoran argued the cause for
appellant (Youngblood, Corcoran, Aleli,
Lafferty, Stackhouse, Grossman & Gormley,
attorneys; Mr. Corcoran, William L. Gormley
and Phyllis Coletta, on the brief).
Gregory Marchesini argued the cause for
respondent (Sandler & Marchesini, attorneys;
Paul N. Sandler, on the brief).
Ronald E. Hoffman submitted a brief on behalf
of amicus curiae Ocean County Joint Insurance
Fund (Hiering, Hoffman and Gannon, attorneys;
Mr. Hoffman and Michael J. McKenna, on the
brief).
Stephen J. Foley, Jr., and Philip G. Mylod
submitted a joint brief on behalf of amici
curiae the New Jersey Chapters of Surfers'
Environmental Alliance and Surfrider
Foundation (Campbell, Foley, Lee, Murphy &
Cernigliaro, attorneys for Surfers'
Environmental Alliance and Mr. Mylod,
attorney for Surfrider Foundation).
The opinion of the Court was delivered by
COLEMAN, J.
This is a sad case in which a bather broke his neck while
swimming at a public beach on the New Jersey shore. The legal
issues are whether the New Jersey Tort Claims Act's (TCA)
immunity for unimproved public property, N.J.S.A. 59:4-8, applies
to a claim filed by a surfer for injuries caused by a large wave
while using an oceanfront beach, and whether the surfer's own
conduct was the legal cause of his accident. The trial court
held that the public entity has immunity. The Appellate Division
in a published opinion disagreed and reversed.
303 N.J. Super. 481, 490-91 (1997). We granted certification,
152 N.J. 12
(1997), and now reverse. We hold that the surfer's conduct and
the natural conditions of the ocean were the legal causes of the
accident.
The Law Division decided the case on defendant City of Cape
May's motion for summary judgment. We are therefore compelled to
accept plaintiff's version of the facts and give plaintiff the
benefit of all favorable inferences. Brill v. Guardian Life Ins.
Co. of America,
142 N.J. 520 (1995); Judson v. Peoples Bank &
Trust Co.,
17 N.J. 67 (1954). The underlying accident occurred
on August 31, 1993, while plaintiff was bathing in the ocean surf
at First Avenue Beach, which was operated by the City of Cape
May. Plaintiff, an experienced surfer, arrived at the beach at
10:00 a.m. and remained there until the accident occurred at 3:00
p.m. While surfing, plaintiff was struck by a number of large
waves that tossed him about in the surf and caused him to strike
his head on the ocean floor. Plaintiff suffered a severe spinal
cord injury described as a broken neck.
On the day of plaintiff's injuries, Hurricane Emily was
located off the coast of North Carolina. Due to the presence of
the hurricane, the National Hurricane Center issued hurricane
watches and warnings along the Eastern seaboard from North
Carolina to Delaware. In a report prepared by Henry Berger, a
recreation and sports consultant hired as an expert by plaintiff,
Berger opined that the hurricane increased the size of the waves,
the strength of the undertow, and the dangerousness of the ocean
surf at First Avenue Beach on the day of plaintiff's accident.
The parties are also in agreement that the "dangerous condition"
giving rise to the alleged duty to warn or supervise was the
"ocean conditions" caused by the presence of Hurricane Emily off
the coast of North Carolina.
At the time of the accident, First Avenue Beach was
patrolled by lifeguards employed by defendant City of Cape May.
The Cape May Beach Patrol kept a daily log of the conditions at
the beach. The log entry for August 31, 1993, described the surf
conditions as “choppy” and the bathing conditions as “poor to
fair.” At the bottom of the log was written, “GUARDS CAUTION TO
WATCH SURF [CONDITIONS]. UPDATES WILL BE GIVEN THROUGHOUT THE
DAY ('EMILY').” Allan Pappas, one of the two lifeguards on duty
at the time of plaintiff's accident, testified at a deposition
that he did not recall seeing that report or receiving any
updates on the hurricane.
In the same deposition, Pappas testified that, at the time
of plaintiff's accident, Fred Lewis was the second lifeguard on
duty at First Avenue Beach. Pappas also stated that after they
were alerted that plaintiff had been injured, Lewis went to
plaintiff's aid. At that point, Pappas “pulled bathers out of
the water” as a safety precaution because, with his partner
preoccupied, he did not feel he could adequately monitor the
entire beach by himself.
Lieutenant John Schellenger, the supervisor of the Cape May
lifeguards at the time of plaintiff's accident, also was deposed.
He testified that the duties of the lifeguards were to watch the
beach and the bathers, and to monitor the conditions of the
waves. He testified that Cape May did not have a flag system or
loud speaker system to warn bathers of dangerous conditions.
Pappas explained that although such systems were not in place, he
nevertheless communicated with the bathers verbally and by using
a whistle or hand signals.
Plaintiff's expert opined that it was reasonably foreseeable
by Cape May beach management personnel that Hurricane Emily could
result in dangerous and life-threatening conditions. He
concluded that Cape May deviated from the proper standard of care
by failing, under the circumstances, to have a procedure in place
for warning bathers or closing the beach to bathers. Berger
concluded that “[b]ut for these failures in the management of
Cape May beaches for the safe protection of bathers, this
incident and the serious injury sustained by William Fleuhr were
preventable.”
In his complaint, plaintiff alleged claims against the City
of Cape May for negligent supervision, failure to warn of the
dangerous conditions posed by the ocean on the day of his
accident, and failure to protect him from those hazards. The
trial court granted the City of Cape May's motion for summary
judgment on two grounds. First, the trial court held that the
City was protected by the unimproved property immunity of the
TCA, N.J.S.A. 59:4-8. Fleuhr, supra, 303 N.J. Super. at 483.
Second, the trial court determined that the unimproved property
immunity under N.J.S.A. 59:4-8 trumped the imposition of
liability for negligent supervision provided under N.J.S.A. 59:3-11. Id. at 484.
The Appellate Division reversed. Id. at 481. It
interpreted Kleinke v. City of Ocean City,
163 N.J. Super. 424
(Law Div. 1978), overruled in part by Sharra v. City of Atlantic
City,
199 N.J. Super. 535 (App. Div. 1985), as holding that the
unimproved property immunity did not override liability for
negligent supervision of a public beach. Fleuhr, supra, 303 N.J.
Super. at 487. Noting that it was not bound by federal cases
interpreting the TCA, the Appellate Division also rejected the
Third Circuit's interpretation of New Jersey law in Kowalsky v.
Long Beach Township,
72 F.3d 385 (3d Cir. 1995). Fleuhr, supra,
303 N.J. Super. at 488.
The Appellate Division held that a municipality has no
obligation to make unimproved property safe. Id. at 488-89. It
affirmed the order granting summary judgment in defendant's favor
on plaintiff's claim that the ocean constituted a dangerous
condition and that defendant had a duty to warn independent of
its decision to provide lifeguards at the beach. Id. at 489. It
distinguished, however, a public entity's decision not to provide
protective services at a beach from a public entity's liability
for negligent performance of those services once undertaken.
Ibid. The Appellate Division stated that "recogni[zing] a cause
of action for negligent performance of lifeguard services at a
beach . . . [would] avoid[] the anomalous result of imposing
liability for negligent performance of lifeguard services at a
municipal pool while immunizing the same actions due to the
natural rather than artificial nature of the swimming hole." Id.
at 490.
Defendant City of Cape May presents a two-fold argument.
First, it contends that the Appellate Division violated the basic
rules for determining whether immunity exists under the TCA. It
asserts that even if a valid claim has been alleged, and it
contends that the claim in the instant action is not valid, the
basic rule is that immunity prevails over liability. Second,
defendant contends that the claim for negligent supervision or
negligent provision of protective services must fail because a
public entity cannot be held liable for injuries caused
exclusively by a wave, one of the naturally occurring forces of
the ocean, based on the unimproved property immunity, N.J.S.A.
59:4-8.
Plaintiff concedes that both the trial court and the
Appellate Division properly rejected his claim that the ocean
constituted a dangerous condition on public property for which
defendant had a duty to warn bathers independent of providing
lifeguards. Plaintiff argues, however, that he should be
permitted to pursue his claim for negligent supervision because
defendant decided to provide lifeguard services. Unlike
defendant's position, plaintiff and the Appellate Division
focused upon the activity on the public property -- the alleged
failure of the lifeguards properly to supervise the beach -
rather than on the condition of the public property itself.
Amicus curiae Ocean County Joint Insurance Fund (OC) argues
that when both a liability and an immunity provision appear to
apply to a TCA case, the immunity provision trumps the liability
provision. OC observes that in other cases in which New Jersey
courts have suggested that a negligent supervision claim could go
forward, the unimproved property immunity was not at issue. OC
maintains that in the present case the unimproved property
immunity is directly implicated and, therefore, must trump the
imposition of any liability under the TCA.
Amici curiae Surfers' Environmental Alliance-New Jersey
(SEA-NJ) and Surfrider Foundation (collectively S&S) argue that
the Appellate Division's decision is based on the fiction that a
lifeguard could have taken action to prevent plaintiff's injury.
S&S maintain that the action of the ocean, particularly the
waves, cannot be predicted with any certainty in advance. For
that reason, even the most vigilant lifeguards are not guarantors
of the safety of those who venture into the ocean. S&S are
concerned that, as a result of the Appellate Division's decision,
municipalities will address the potential dangers of the ocean by
restricting access to coastal waters, especially when the ocean
is rough, thereby unduly limiting those who revel in the
challenges presented by rough, breaking seas. Alternatively,
municipalities will remove lifeguards from the beach to avoid
liability, thereby adversely affecting those people who prefer to
bathe while protected by lifeguards.
The determination of whether plaintiff should be permitted
to proceed with his claim against the public entity that its
lifeguards were negligent in their supervision of the beach in
failing either to warn of the choppy surf conditions caused by
Hurricane Emily or in failing to evacuate the beach entirely
requires an analysis of several subsections of the TCA. Troth v.
State,
117 N.J. 258, 265-66 (1989).
The TCA, N.J.S.A. 59:1-1 to 13-10, was enacted for the
purpose of reestablishing the general rule immunizing public
entities from liability for injuries to others. Brooks v. Odom,
150 N.J. 395, 402 (1997). It was not enacted for the purpose of
creating liability. Russo Farms, Inc. v. Vineland Bd. of Educ.,
144 N.J. 84, 110 (1996); New Jersey Property-Liab. Ins. Guar.
Ass'n v. State,
195 N.J. Super. 4, 11 (App. Div.), certif.
denied,
99 N.J. 188 (1984). Municipalities such as defendant
fall within the purview of the TCA. N.J.S.A. 59:1-3 (defining
“public entity” to include municipalities); see Wright ex rel.
Kemp v. State,
147 N.J. 294, 309 (1997). Generally, immunity for
public entities is the rule and liability is the exception.
N.J.S.A. 59:2-1b; Garrison v. Township of Middletown,
154 N.J. 282, 286 (1998); Collins v. Union County Jail,
150 N.J. 407, 413
(1997); Wright ex rel. Kemp, supra, 147 N.J. at 299; Bombace v.
City of Newark,
125 N.J. 361, 372 (1991). In contrast, immunity
of a public employee under the TCA is the exception. Fielder v.
Stonack,
141 N.J. 101, 118 (1995). "Except as otherwise provided
by [the TCA], a public employee is liable for injuries caused by
his act or omission to the same extent as a private person."
N.J.S.A. 59:3-1a. Any immunity provided a public employee must
be independent of a public entity's immunity under the TCA. The
source of a public employee's immunity can be the TCA itself,
N.J.S.A. 59:3-1b, or any other statute or common law. Fielder,
supra, 141 N.J. at 118; Chatman v. Hall,
128 N.J. 394, 404-05
(1992).
N.J.S.A. 59:2-7 establishes a standard for determining
whether a public entity may be liable for negligent supervision
of a public recreational facility. It provides: "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 -9]." A separate relevant provision of the
TCA deals with public employees. It provides: "A public employee
is not liable for the failure to provide supervision of public
recreational facilities. Nothing in this section exonerates a
public employee for negligence in the supervision of a public
recreational facility." N.J.S.A. 59:3-11. Although both of
those statutes are relevant to issues of liability, neither
addresses the public entity's claim of immunity.
The City of Cape May contends that it is entitled to
immunity pursuant to N.J.S.A. 59:4-8 and -9. The unimproved
public property immunity provides:
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.
[N.J.S.A. 59:4-8.]
Section 4-9, titled “Unimproved and unoccupied portions of
certain lands_immunity,” provides:
Neither a public entity nor a public employee
is liable for any injury caused by a
condition of the unimproved and unoccupied
portions of the tidelands and submerged
lands, and the beds of navigable rivers,
streams, lakes, bays, estuaries, inlets and
straits owned by the State.
[N.J.S.A. 59:4-9.]
The Comment on Sections 4-8 and 4-9 expresses the policy
determination underlying the unimproved property immunity:
[I]t is desirable to permit the members of
the public to use 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 injuries arising therefrom
as part of the price to be paid for benefits
received.
[Comment on N.J.S.A. 59:4-9.]
The Comment also states:
The exposure to hazard and risk involved is
readily apparent when considering all the
recreational and conservation uses made by
the public generally of the [approximately
915,000] acreages, both land and water
oriented. Thus, in sections 59:4-8 and 59:4-9 a public entity is provided an absolute
immunity irrespective of whether a particular
condition is a dangerous one.
[Ibid.]
Plaintiff no longer contends that the oceanfront beach was
improved property, which, if true, would have precluded the
application of the unimproved property immunity. Plaintiff
argues instead that the negligent supervision by the lifeguards
in combination with the natural conditions of the ocean produced
his injuries, and, therefore, any immunity under N.J.S.A. 59:4-8
and -9 should not override liability. In rejecting that
argument, the trial court relied on the Third Circuit's decision
in Kowalsky.
In Kowalsky, the court granted summary judgment in favor of
two municipalities that had been sued by bathers injured at a
municipal beach by large waves created by Hurricane Gustav. 72
F.
3d at 392. The Kowalsky court found that the public entities
were immunized from the plaintiffs' claims under the unimproved
property immunity of Section 4-8 and held that the ocean waves,
which caused the plaintiffs' injuries, were natural conditions of
unimproved property. Id. at 390. The Kowlasky court essentially
found as a matter of law that the natural condition of the ocean
rather than any negligent supervision by lifeguards proximately
caused plaintiff's injuries. The facts in the present case also
allow us to dispose of the appeal on the theory of legal
causation without reaching the merits of the immunity claim.
We note, however, that our TCA is patterned after the
California Torts Claim Act. After Gonzales v. City of San Diego,
182 Cal. Rptr. 73 (Ct. App. 1982), held that alleged negligent
supervision of a public beach by lifeguards was not covered by
California's unimproved public property immunity, the California
Legislature in 1987 overturned that decision by enacting Cal.
Gov. Code § 831.21. That statutory amendment essentially
provides that the presence or absence of lifeguards or signs does
not alter the absolute immunity provided for unimproved public
property. Cases involving accidents that predated the amendment
have criticized Gonzales severely. See, e.g., Morin v. County of
Los Angeles,
263 Cal. Rptr. 479, 483-85 (Ct. App. 1989) (stating
that Gonzales "represents an unwarranted restriction of sovereign
immunity and should not be followed"); Rombalski v. City of
Laguna Beach,
261 Cal. Rptr. 820, 828-33 (Ct. App. 1989) (Crosby,
Acting P.J., concurring) (stating hybrid theory of Gonzales is
unsound and unnecessary); Geffen v. County of Los Angeles,
242 Cal. Rptr. 492, 494-95 (Ct. App. 1987) (stating Gonzales hybrid
condition rationale is directly inconsistent with the plain
meaning of Cal. Gov. Code § 831.2).
Since 1987, California courts, like the Third Circuit in
Kowalsky interpreting the TCA, have consistently refused to
permit recoveries against municipalities for injuries proximately
caused by natural conditions of the ocean, regardless of whether
lifeguards were present. See, e.g., Knight v. City of Capitola,
6 Cal. Rptr.2d 874 (Ct. App. 1992) (holding no liability for
failure to warn for bodysurfing injury occurring while lifeguard
present); Tessier v. City of Newport Beach,
268 Cal. Rptr. 233
(Ct. App. 1990) (holding city not liable for diving injury
because ocean constitutes natural condition); Morin, supra,
263 Cal. Rptr. 479 (holding hazardous recreational immunity immunized
county from liability for plaintiff's ocean diving injury); City
of Santa Cruz v. Magna,
244 Cal. Rptr. 105 (Ct. App. 1988)
(holding presence of lifeguards did not remove city's immunity
for plaintiff's river diving injury resulting from natural
condition of public property); Geffen, supra,
242 Cal. Rptr. 492
(holding unimproved property immunity immunized county from
plaintiff's ocean diving injury).
We recommend that the New Jersey Legislature also revisit
the issue whether Section 4-8 immunity covers acts of omission
and of commission by lifeguards.
Ordinarily, the issue of proximate cause should be
determined by the factfinder. Scafidi v. Seiler,
119 N.J. 93,
101 (1990). Proximate cause has been described as a standard for
limiting liability for the consequences of an act based "'upon
mixed considerations of logic, common sense, justice, policy and
precedent.'" Caputzal v. The Lindsay Co.,
48 N.J. 69, 77-78
(1966) (quoting Powers v. Standard Oil Co.,
98 N.J.L. 730, 734
(Sup. Ct. 1923), aff'd o.b.,
98 N.J.L. 893 (E. & A. 1923)).
Proximate cause as an issue, however, may be removed from the
factfinder in the highly extraordinary case in which reasonable
minds could not differ on whether that issue has been
established. Vega by Muniz v. Piedilato,
154 N.J. 496, 509
(1998).
Viewing the facts in light of the principles set forth in
Brill, we conclude that as a matter of law, any negligence by the
lifeguards did not proximately cause plaintiff's injuries. It is
undisputed that plaintiff was injured when a large wave struck
him, causing his head to be forced into the ocean floor.
Plaintiff was an experienced surfer who had been at the beach
nearly five hours before the accident. He therefore knew the
ocean conditions and appreciated the risks associated with
surfing in the choppy ocean caused in part by Hurricane Emily.
According to S&S, the rough ocean and the high risks are the very
conditions that attract experienced surfers like plaintiff to the
ocean beach in the first place. Consistent with that view, SEA-NJ on behalf of three surfers recently argued before the
Appellate Division that their safety based on bad water and
weather conditions caused by hurricanes should be decided by
surfers because those conditions create the perfect environment
for their sport. State v. Oliver, ___ N.J. Super. ___, ___ (App.
Div. 1999) (slip op. at 15-16). Here, the perfect environment
for surfing was the large waves that caused plaintiff's accident.
Furthermore, at the time of the accident there were two
lifeguards patrolling the beach. It was the lifeguards' common
practice to restrict bathers to an area deemed to be a reasonably
safe distance from the beach. Pappas, the senior lifeguard on
duty had approximately twenty years of experience patrolling the
Cape May Beach; more than half of that time was spent at the
First Avenue Beach. He did not find any justification to close
the beach before or after plaintiff's injury. The lifeguards'
stand was at the water's edge in the wet sand, only a few short
yards from where one of the lifeguards eventually rescued
plaintiff. Upon noticing plaintiff's distress, lifeguard Lewis
immediately went to plaintiff's aid. While Lewis was attending
to plaintiff, Pappas pulled the other bathers out of the water
because he felt that it was not safe for him to patrol the entire
beach alone while Lewis provided aid to plaintiff. After the
lifeguards completed their emergency assistance to plaintiff, the
beach was reopened to bathers.
Viewing those facts in light of the Brill standard convinces
us that the alleged negligence of the lifeguards is too remotely
or insignificantly related to plaintiff's accident, so that in a
legal sense, the alleged fault of the lifeguards does not
constitute "a cause of [the] accident, . . . [but] simply
presents the condition under which the injury was received."
Brown v. United States Stove Co.,
98 N.J. 155, 172 (1984).
Stated differently, we conclude that a reasonable jury could find
only that plaintiff's accident was caused by the waves and that
any negligence by the lifeguards was not a proximate cause of
plaintiff's accident.
The judgment of the Appellate Division remanding the matter
for trial is reversed, and judgment is entered for the public
entity.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK and GARIBALDI join
in JUSTICE COLEMAN'S opinion. JUSTICE HANDLER has filed a
separate opinion in which JUSTICES O'HERN and STEIN join.
JUSTICE O'HERN has filed a separate dissenting opinion in which
JUSTICES HANDLER and STEIN join.
SUPREME COURT OF NEW JERSEY
A-
136 September Term 1997
WILLIAM FLEUHR,
Plaintiff-Respondent,
v.
CITY OF CAPE MAY,
Defendant-Appellant,
and
JOHN DOE and COUNTY OF CAPE MAY,
Defendants.
HANDLER, J., dissenting.
This case presents the novel question of whether immunity
overrides liability when there are multiple causes contributing
to an accidental injury and only one of those causes would confer
immunity on the municipality. The Court obviates the need to
address this question, reasoning that, as a matter of law, the
sole proximate cause of plaintiff's injury was the natural
condition of the ocean. I do not subscribe to that conclusion,
and therefore address the issue that I believe must be resolved
to dispose of this case.
In construing and applying the Tort Claims Act ("TCA"), it is frequently observed that immunity for public entities is the rule and liability is the exception. See N.J.S.A. 59:2-1b. This notion supports the oft stated proposition that in the determination of whether an injured person can prevail against a public entity, "[w]hen both liability and immunity appear to exist, the latter trumps the former." Tice v. Cramer, 133 N.J. 347, 356 (1993). Although that proposition does not constitute a basis for the Court's analysis and determination in this case, I believe it bears on the central issue that must be resolved, namely, the effect of multiple causes of accidental injury under the TCA. I do not find clear support for the expansive conclusion that the TCA always immunizes a public entity from liability for an accidental injury where there is a combination of causes of that injury, only one of which confers immunity. In order to ascertain the intended effect of the TCA in this context, an examination of the language of the statute and its legislative history is required.
The TCA absolves a municipality from liability in respect of its natural property by providing:
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.
The provision is silent on whether a condition of unimproved
property that is combined with other causes of accidental injury
necessarily confers immunity.
In determining the meaning of the unimproved property
immunity under N.J.S.A. 59:4-8, we should first resort to the
express language of the statute to ascertain whether that can
yield a clear meaning. Bergen Comm'l Bank v. Sissler,
157 N.J. 188, 202 (1999) ("The first step in any statutory analysis is to
examine the statute's plain language as the clearest indication
of its meaning."). The TCA simply does not state that if a
condition of unimproved property is one of a combination of
causes of an accidental injury, immunity always follows. Rather,
it is silent on whether such a condition necessarily confers
immunity when it is a concurrent cause of the injury. The
interpretative issue, therefore, is whether the statute should be
construed to require that if only one of multiple causes of
accidental injury gives rise to immunity -- even though other
causes would generate liability -- no liability can be visited
upon the municipality.
In determining the meaning of the unimproved property
immunity under N.J.S.A. 59:4-8, the language of this provision
should be construed to assure its compatibility with other
provisions of the TCA. Seatrain Lines, Inc. v. Medina,
39 N.J. 222, 226-27 (1963) (observing that provisions of statutes should
be construed in harmony and as together effecting overall
legislative intent). One area of the statute that expressly
considers the relationship between immunity and liability
involves governmental responsibility for public property in
general. N.J.S.A. 59:3-11 provides:
A public employee is not liable for the
failure to provide supervision of public
recreational facilities. Nothing in this
section exonerates a public employee for
negligence in the supervision of a public
recreational facility.
In effect, this provision contemplates both qualified immunity
and limited liability in respect of the supervision over public
property. The immunity provided by this section for a public
employee is limited to a specific cause; "failure to provide
supervision." But, it does not "exonerate" employees for a cause
based on negligent supervision. The limited liability for public
employees is similar to that contained in another section of the
TCA, N.J.S.A. 59:2-7, which provides that a public entity is not
exonerated for negligence once it undertakes to supervise a
facility.
The approach espoused in these sections is based on the
recognition that accidental injury resulting from the use of
improved public property will often entail multiple causes.
There is no obvious reason why that understanding does not inform
the intended application of provisions governing accidental
injury in the context of unimproved public property. The TCA
should be read as a whole, its individual provisions harmonized,
and construed in a way most consistent with the overall
legislative intent. See Fiore v. Consol. Freightways,
140 N.J. 452, 466 (1995). A consideration of the legislative intent at
the time the TCA was enacted compels the conclusion that the
liability provisions of the TCA for negligent supervision of
improved public property should be reconciled with its provisions
regarding governmental responsibility for unimproved property.
In the absence of a clear meaning that can be derived from
plain and unambiguous statutory language, determination of the
underlying intent of the Legislature turns on consideration of
extrinsic factors. Wingate v. Estate of Ryan,
149 N.J. 227, 236
(1997). In construing a statute that has its origins in the
common law and incorporates common law principles, that analysis
may sensibly "commence with an evaluation of 'the common law of
New Jersey . . . [a]t the time of the adoption of the statute.'"
Renz v. Penn Cent. Corp.,
87 N.J. 437, 443 (1981) (citing Egan v.
Erie R.R. Co.,
29 N.J. 243, 250 (1959)).
The historical key to unlocking the legislative
understanding of concurrent causation in the context of sovereign
immunity, the common-law progenitor of the TCA, is the common law
concept of contributory negligence. Contributory negligence
emerged as a doctrine of the common law with judicial origins
dating to 1809. Renz, supra, 87 N.J. at 450 (citations omitted).
It found its way into New Jersey common law in the middle of the
last century. See Central R.R. Co. v. Moore,
24 N.J.L. 824 (E. &
A. 1854); Vandergraft v. Rediker,
22 N.J.L. 185 (Sup. Ct. 1849).
Early on, the doctrine of contributory negligence precluded
recovery on the part of a negligent plaintiff, regardless of the
degree of his or her culpability. Renz, supra, 87 N.J. at 451.
Gradually, however, the doctrine experienced liberalizing
influences. Most significantly, courts began to focus on the
fairness and need to identify and clarify the real or substantial
causes of injury in the tort law, and recognized that in the
application of contributory negligence, it must be shown that a
plaintiff's conduct is a direct or effective cause of the
accident in order to bar recovery. In State v. Lauer,
55 N.J.L. 205, 215 (Sup. Ct. 1893), the Court wrote:
In the trial of cases of this kind, where it
appears that both parties were in fault, the
primary consideration is whether the faulty
act of the plaintiff was so remote from the
injury as not to be regarded, in a legal
sense, as a cause of the accident, or whether
the injury was proximately due to the
plaintiff's negligence, as well as to the
negligence of the defendant. If the faulty
act of the plaintiff simply presents the
condition under which the injury was
received, and was not, in a legal sense, a
contributory cause thereof, then the sole
question will be whether, under the
circumstances, and in the situation in which
the injury was received, it was due to the
defendant's negligence. But if the
plaintiff's negligence proximately -- that
is, directly -- contributed to the injury, it
will disentitle him to a recovery, unless the
defendant's wrongful act was willful, or
amounted to an intentional wrong.
Principles of fairness in assigning responsibility and
allocating damages also gained strength in the evolution of tort
law. A major change in that growth was the emergence of the
doctrine of comparative negligence.See footnote 1 The Legislature overtook
the common law by adopting an act providing for comparative
negligence, effective on May 24, 1973. N.J.S.A. 2A:15-5.1, -5.2.
Influenced by considerations of public policy implicit in that
legislative action, this Court subsequently rejected contributory
negligence as part of New Jersey common law and adopted
comparative negligence principles to govern the allocation of
fault in tort actions. Rentz, supra, 87 N.J. at 456.
At the time of the TCA's adoption in 1972, then, principles
of contributory negligence were in the course of being modified
and superseded by those of comparative negligence. The
Legislature's clear understanding of principles of comparative
negligence and concurrent causation is demonstrated by explicit
and implicit references to proximate causation in the TCA. For
example, the TCA adopts an express comparative negligence
principle in N.J.S.A. 59:9-4:
Contributory negligence shall not bar
recovery in an action by any party . . . to
recover damages to the extent permitted under
this act, if such negligence was not greater
than the negligence of the party against whom
recovery is sought or was not greater than
the combined negligence of the persons
against whom recovery is sought. Any damages
sustained shall be diminished by the
percentage of negligence attributable to the
person recovering.
The comment to N.J.S.A. 59:9-4 reflects the Legislature's
appreciation of the state of the common law:
The purpose of this provision is to
humanize the law by eliminating the harsh
doctrine of contributory negligence and
adopting in its place comparative negligence.
Under the doctrine of contributory negligence
a plaintiff is barred from recovery if his
own negligence contributed to his injury -
no matter how great or how slight that
contributory negligence may have been. Under
the comparative negligence doctrine contained
in this provision the damages to which an
injured party would be entitled under the act
will be diminished in proportion to the
amount of negligence attributable to him.
At least twelve states have adopted a form
of the comparative negligence rule . . . .
In fact, in a recent decision in which the
New Jersey Supreme Court attempted to deal
with the potential unfairness of the
contributory negligence rule, Justice
Francis, in a concurring opinion joined in by
Justice Proctor, called upon the Legislature
to adopt some form of comparative negligence.
O'Brien v. Bethlehem Steel Corporation,
59 N.J. 114, 125-128,
279 A.2d 827 (1971).
Although there are a number of different
comparative negligence plans, it is proposed
that the so-called "pure form" of comparative
negligence be adopted. . . . It is []
consistent with the general approach of this
act which is intended to increase settlement
and to reasonably and fairly increase the
compensation of injured persons. It is
anticipated that this form of comparative
negligence will apply in all actions in which
a public entity or public employee is a
party.
[Comment on N.J.S.A. 59:9-4 (1972) (emphasis
added).]
More significantly, the general liability provision that
applies to dangerous conditions of improved public property is
expressed in language that is virtually identical to that used in
the immunity provision for unimproved public property. The
unimproved property immunity provision applies where "an injury
[was] caused by a condition of any unimproved property."
N.J.S.A. 59:4-8. The improved property liability provision is
implicated when "the injury was proximately caused by the
dangerous condition." N.J.S.A. 59:4-2.
It is indisputable that in providing for liability caused by
the dangerous condition of property under N.J.S.A. 59:4-2, the
Legislature contemplated that principles of comparative
negligence would apply despite the absence of any express
reference to concurrent causation or comparative negligence in
that statutory section. Cf. Nora v. Township of Livingston,
171 N.J. Super. 579 (App. Div. 1980) (per curiam) (noting in
situation involving joint tortfeasors relevance of comparative
negligence principles in allocating liability among plaintiff,
defendant gas company, and defendant municipality for injury
caused by negligently maintained road). There is not the
slightest suggestion or intimation that in providing a specific
immunity attributable to unimproved property under N.J.S.A. 59:4-8, the Legislature intended to foreclose the application of
comparative fault principles expressly recognized in N.J.S.A.
59:9-4, when there is a combination of multiple causes, some of
which ordinarily give rise to liability. See, e.g., Nora, supra,
171 N.J. Super. 579. See also Garrison v. Township of
Middletown,
154 N.J. 282, 309 (1998) (Stein, J. concurring)
(recognizing that Legislature clearly considered common law
concepts of concurrent causation in drafting TCA and that such
principles are relevant to immunity inquiry, although disagreeing
with Court's position concerning definition of "dangerous
condition" of improved public property).
Further support for this position can be found in other
authority. The Court has recognized the relevance of
California's TCA in lending meaning to our TCA. E.g., Garrison,
supra, 154 N.J. at 289; Levin v. County of Salem,
133 N.J. 35, 46
(1993).
Principles of comparative fault or causation were recognized
and applied by California in the context of a combination of
causes (including one conferring immunity) resulting in
accidental injury. In a case in which statutory design immunity
was applicable, the California Supreme Court imposed liability on
negligent failure-to-warn grounds, and refused to confer
immunity. Cameron v. State,
497 P.2d 777 (1972) (in bank). The
court explained that because "negligent failure to warn is a
concurrent cause of [plaintiffs'] injuries . . . this concurrent
negligence is an independent basis for recovery." Id. at 783.
The court accepted the plaintiffs' contention "that, even if
design immunity is eventually found to be applicable, it would
not immunize the state for its concurrent negligence in failing
to warn of the dangerous condition." Ibid.
The California court also relied on another decision,
Flournoy v. State,
275 Cal. App.2d 806 (Ct. App. 1969). There
the court stated that although the plaintiff-heirs could be
denied recovery for the state's active negligence in creating a
danger by building a faulty bridge, they might still recover for
the state's passive negligence in failing to warn of that danger.
The Cameron court explained:
There may be two concurring, proximate causes
of an accident. . . . Regardless of the
availability of the active negligence theory,
plaintiffs were entitled to go before a jury
on the passive negligence theory, i.e., an
accident caused by the state's failure to
warn the public against icy danger known to
it but not apparent to a reasonably careful
highway user.
[497 P.
2d at 784 (quoting Flournoy,
275 Cal. App.
2d at 811).]
Further, the court in Cameron specifically rejected the defense
argument that the design immunity provided in Section 830.6 of
California's TCA must "prevail" over any liability for a
dangerous condition of public property under section 835 of that
act. Ibid. The court adopted the reasoning in Flournoy:
By force of its very terms the design
immunity of section 830.6 is limited to a
design-caused accident. (Citation omitted).
It does not immunize from liability caused by
negligence independent of design, even though
the independent negligence is only a
concurring, proximate cause of the accident.
[Ibid. (quoting Flournoy, 275 Cal.
App.
2d at 811.)]
These decisions clearly recognize that in a context in which
accidental injury may be attributable to a combination of causes
only one of which confers immunity, it was not the intent of the
TCA that immunity would necessarily override liability;
significantly these decisions had been rendered when this State
adopted its TCA, and presumably expressed an understanding of the
law that our Legislature shared. Garrison, supra, 154 N.J. at
289; Levin, supra, 133 N.J. at 46.
Another instructive California case, Gonzales v. City of San
Diego,
130 Cal. App.3d 882 (Ct. App. 1982), involved the drowning
death of a woman who was swimming at a beach that had lifeguards
voluntarily provided by the city of San Diego. Her children sued
the city, alleging a negligent failure to warn of a dangerous
riptide. The trial court granted the city's demurrer asserting
absolute immunity under a provision of California's TCA providing
immunity for injuries resulting from a natural condition at any
unimproved public property. The appeals court reversed. The
court assumed that the beach was unimproved property, but held
that the requirement that the injury be caused by a “natural
condition” was not met. Rather, the court found that plaintiff
had pled a “hybrid dangerous condition,” described as "partially
natural and partially artificial in character, the result of a
combination of a natural defect within the property and the third
party conduct of the [c]ity," which allowed the claim against the
city to go forward. Id. at 885. The court explained that “the
dangerous condition [] arose from the existence of a natural
dangerous riptide condition, plus [the] [c]ity's voluntarily
providing lifeguard service at [the] [b]each (a duty with which
it impliedly was not burdened under [the TCA]), and its
performing that voluntarily assumed service negligently by
failing to warn of the known, hazardous, natural condition.”
Ibid. Gonzales thus reflects an intent to account for multiple
causes of accidental injury, even where one of those causes is
accorded statutory immunity.See footnote 2
In my view, in dealing with distinct, multiple or concurrent causes that contribute to an accidental injury, one of which gives rise to governmental immunity, the Legislature intended to invoke principles of comparative negligence or fault. Therefore, I believe the proper principle of law to be applied is one that compares and balances the immunity-conferring and liability-imposing causes, as well as any contributory negligence on the part of the plaintiff, and accords each cause its proportionate weight in the allocation of statutory responsibility.
In balancing the relative weight of these causes, where a dangerous condition of unimproved property combines with the negligent supervision of a municipal employee resulting in a plaintiff's injury, it is appropriate to allocate damages to the government entity to the extent that a liability-imposing cause substantially increased the risk of injury. See Gonzales, supra, 130 Cal.App.3d 882 (allowing claim against municipality to go forward on "hybrid dangerous condition" theory, because public entity's negligent conduct increased risk of danger posed by natural condition); see also Scafidi v. Seiler, 119 N.J. 93, 108-109 (1990) (holding where there is evidence that defendant's negligent act or omission increased risk of harm, and trier of fact determines that this increased risk was "substantial factor" in producing harm actually suffered by plaintiff, liability may be imposed); Evers v. Dollinger, 95 N.J. 399, 417 (1983) (same). Utilizing "increased risk" as a measure of liability is "consistent with the principles underlying the comparative-negligence statute, N.J.S.A. 2A:15-5.1 (damages sustained shall be diminished by percentage of negligence attributable to person recovering); Scafidi, supra, 119 N.J. at 113; see also Ostrawski v. Azzara, 111 N.J. 429, 449-51 (1988) (finding that damages should be allocated to reflect doctor's malpractice that increased risk of harm attributable to plaintiff's condition and acts of personal negligence). This analysis also comports with the principle of tort law that recognizes that a duty of care that encompasses a victim's own potential wrongdoing or contributory negligence can be a proper basis for liability. See Steele v. Kerrigan, 148 N.J. 1 (1997); Cowan v. Doering, 111 N.J. 451 (1988).
A critical factor in these situations is that a protective duty is voluntarily assumed by the governmental entity. See Restatement (Second) of Torts § 323(a) (stating that rendering necessary protective services to another may subject provider to liability for injury for negligence "if [the] failure to exercise [reasonable] care increased the risk of such harm."). Equally important in assessing increased risk is the "induce[ment of] public reliance" on the part of the public entity by assuming a protective duty. Gonzales, supra, 130 Cal. App. 3d at 886. Thus, "when a public entity voluntarily provides a protective service for particular members of the public, which induces their reliance on the proper performance of that service, [the TCA] does not necessarily provide immunity." Arroyo v. State, 34 Cal. App.4th 755, 764 (Ct. App. 1995). "Put another way, the immunity is inapplicable where a public entity's conduct actively and negligently increases the degree of danger posed by a natural condition." Mercer v. California, 197 Cal. App.3d 158, 167 (Ct. App. 1988). See also Lee v. Doe, 232 N.J. Super. 569, 579 (App. Div. 1989) (holding that immunity for inadequate police protection would not apply "if the police officer caused the victim to rely on him for protection or the police officer otherwise increased the risk of injury to the victim.").
These principles of comparative negligence and concurrent causation are appropriately invoked in construing and applying the TCA. To reiterate, comparative causation has long been recognized in the common law of New Jersey. It is entirely reasonable to view the choice of language in N.J.S.A. 59:4-8 as implicitly incorporating the common law principles of concurrent comparative causation. Thus, where a concurrent cause -- such as the negligent supervision of a public employee -- independently or concurrently causes, or substantially increases the risk of injury posed by other causes, any specific liability provision covering this cause should provide a recovery to plaintiff in proportion to the fault attributable to that cause. In this case, imputing principles of comparative causation to N.J.S.A. 59:4-8 reconciles a legislative intent to protect bathers from negligent supervision by lifeguards with the text of the statute.
To the extent that the negligent supervision of municipal employees substantially increased the risk of injury posed by the condition of unimproved property, namely, the ocean, that percentage of increased risk may be used to impose and allocate liability. Thus, allowing recovery only for the increased risk attributable to negligent supervision simultaneously acknowledges the immunity ascribed to the condition of the unimproved property by exonerating the municipality to the extent the immunity-conferring condition proximately contributed to the accidental injury.
The majority determines as a matter of law that plaintiff's accident was caused only by the waves, a natural condition of the ocean, ante at __ (slip op. at 18), and thus grounds its holding on plaintiff's failure to establish that the lifeguards' negligent supervision proximately caused his injury. Ante at __ (slip op. at 17). I disagree. I believe that the Court more properly should determine liability based on comparative negligence principles, taking into account that this case presents concurrent or multiple causes.
This record cannot be viewed as excluding negligent supervision by the lifeguard as an independent concurrent cause. Further, the record also reveals a basis for determining that plaintiff was contributorily negligent.See footnote 3 Consequently, there is evidence that the condition of the ocean coupled with the employees' negligent supervision and plaintiff's own negligence combined to contribute to the accidental injury.
Comparative negligence doctrine does not foreclose the entry of summary judgment when there are no genuine disputes over facts that are material to the issue of proximate cause. Vega by Muniz v. Piedilato, 154 N.J. 496, 529 (1998) (Handler, J., concurring) (stating that our comparative negligence jurisprudence "permits courts to enter summary judgment in the defendant's favor in the extraordinary case where no rational juror could conclude that the plaintiff's negligence did not exceed the defendant's negligence."). Here, the record does not allow the Court to conclude, as a matter of law, that the condition of the ocean was the sole proximate cause of the accident. Nor does the record require the determination, as a matter of law, that plaintiff's own negligence, even when combined with the condition of the ocean, which would confer immunity, exceeds any fault that would be attributable to the negligent supervision of the lifeguards. That is particularly so in a case, such as this, where the defendant's duty to afford protection includes the prevention of plaintiff's possible wrongdoing. See Kerrigan, supra, 148 N.J. 1; Cowan, supra, 111 N.J. 451. Thus, there remains the ultimate issue whether the negligent supervision of the lifeguards substantially increased the risk of accidental injury to plaintiff posed by the condition of the ocean and whether that increased risk outweighs other causes of the accidental injury that may be attributed to either or both the condition of the ocean and plaintiff's contributory negligence.
I conclude that plaintiff has presented genuinely disputed issues of material fact that must be resolved by a trial. I would, therefore, affirm the judgment of the Appellate Division.
For the reasons stated, I dissent. Justices O'Hern and Stein join in this opinion.
SUPREME COURT OF NEW JERSEY
A- 136 September Term 1997
WILLIAM FLEUHR,
Plaintiff-Respondent,
v.
CITY OF CAPE MAY,
Defendant-Appellant,
and
JOHN DOE and COUNTY OF CAPE MAY,
Defendants.
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 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
condition