*1 FLUEHR, PLAINTIFF-RESPONDENT, WILLIAM OF CITY MAY, DEFENDANT-APPELLANT, CAPE JOHN AND DOE MAY, AND COUNTY CAPE OF DEFENDANTS. Aрril Argued May 1998—Decided 1999. *2 (Youngblood, appellant argued cause Gerald J. Corcoran Stackhouse, Gormley, Aleli, at- Corcoran, Lafferty, Grossman & William, Coletta, Corcoran, Gormley Phyllis and torneys; L. Mr. brief). on the (Sandler respondent cause for
Gregory argued the Marchesini brief). Sandler, Marchesini, attorneys; Paul N. on the & E. Ronald submitted a brief on behalf amicus Hoffman County (Hiering, curiae Ocean Joint Insurance Fund Hoffman Gannon, attorneys; McKenna, Mr. and Michael J. Hoffman brief). on the Jr., Stephen Foley, J. Philip Mylod joint G. submitted a brief on Jersey Chapters behalf amici curiae the New Surfers’ Environmental (Camp- Alliance Surfrider Foundation bell, Lee, Foley, Cemigliaro, Murphy attorneys & for Surfers’ Mylod, Environmental attorney Alliance and Mr. for Surfrider Foundation). opinion of the Court was delivered
COLEMAN, J.
This is a sad case in which a bather broke his neck while
swimming at a public beach on the
Jersey
legal
New
shore. The
*3
(TCA)
issues
Jersey
are whether the New
Tort Claims Act’s
unimproved public
59:4-8,
property,
applies
by
injuries
claim filed
by
surfer for
large
caused
wave
using
beach,
while
an oceanfront
and whether the surfer’s own
legal
conduct was the
of his
cause
accident. The trial court held
public entity
immunity.
that the
has
Appellatе
The
Division in a
published opinion disagreed
N.J.Super.
and reversed. 303
(1997).
490-91,
certification,
granted
I The Law City Division decided the ease on Cape defendant of May’s summary motion for judgment. We are therefore com pelled accept plaintiffs of give version the plaintiff facts and the benefit of all favorable inferences. Brill Guardian Ins. Co. Life America, (1995); v. Peoples Judson Co., 67, 110 Bank & Trust underlying A.2d The accident on August occurred bathing while was Beach, by operated was which surf at First Avenue in the ocean surfer, Plaintiff, arrived at May. experienced an City Cape there until the accident at a.m. and remained the beach 10:00 surfing, by a plaintiff was struck p.m. at While occurred 3:00 surf and him about large waves that tossed number floor. Plaintiff his on the ocean him to strike head caused as a broken neck. spinal cord described a severe suffered Emily located day injuries, Hurricane was plaintiffs On the presence Carolina. Due off the coast of North hurricane, issued hurricane National Hurricane Center from warnings along seaboard North the Eastern watches Berger, a prepared by Henry report In a Carolina to Delaware. expert by plaintiff, as an sports consultant hired recreation and waves, size of the Berger hurricane increased the opined that the undertow, dangerousness of the ocean strength and the The day plaintiffs accident. First Beach on the surf at Avenue “dangerous condition” agreement are parties also supervise the “ocean duty to warn or was giving alleged rise to the Emily off the by presence of Hurricane conditions” coast of North Carolina. patrolled accident, Beach First Avenue was
At the time of May. Cape City Cape employed defendant daily log at beach. May kept a of the conditions Beach Patrol 31,1993, as entry the surf conditions log August described “poor to fair.” At the bathing conditions as “choppy” and the written, WATCH CAUTION TO log “GUARDS bottom of BE UPDATES WILL GIVEN [CONDITIONS]. SURF . (‘EMILY’).” Pappas, one THE DAY Allan THROUGHOUT accident, plaintiffs the time of lifeguards on the two *4 report seeing or did not recall that deposition at a that he testified any the hurricane. receiving updates on that, time of at the deposition, Pappas testified the same lifeguard accident, was second Fred Lewis plaintiffs, they were that аfter Pappas Beach. also stated at First Avenue plaintiffs injured, went to had been Lewis alerted that point, Pappas “pulled At that of aid. bathers out water” as because, safety precaution partner preoccupied, with his he did not adequately by feel he could monitor the entire himself. beach Schellenger, Lieutenant supervisor Cape May John lifeguards accident, at plaintiffs the time of was deposed. also He testified that the duties of the were to watch the beach bathers, and the and to monitor the conditions of the waves. He Cape May flag testified that system speaker did not have a or loud system dangerous to warn Pappas bathers conditions. ex- plained although systems such not in place, were he neverthe- less with verbally by communicated the bathers using a hand signals. whistle or expert opined
Plaintiffs
reasonably
that it was
foreseeable
Cape May
management personnel
Emily
beach
that Hurricane
could result
and life-threatening conditions. He
Cape
May
concluded
proper
deviated from the
standard
circumstances,
by failing,
care
under
procedure
to have a
place warning
closing
for
bathers
Berger
thе beach to bathers.
management
concluded
for these
Cape
“[b]ut
failures in the
.May
protection
bathers,
beaches for the safe
this incident and
the serious
preventable.”
sustained
Fluehr
William
were
complaint, plaintiff
In his
alleged
against
City
claims
Cape May
negligent supervision,
failure to
danger
warn of the
posed by
ous conditions
day
accident,
the ocean on
of his
protect
failure to
him
granted
from those hazards. The trial court
City
Cape May’s
summary judgment
motion for
on two
First,
grounds.
City
the trial court
protected by
held that the
unimproved property immunity
TCA,
N.J.S.A 59:4-8.
Fleuhr, supra,
N.J.Super.
Second,
The Appellate Division reversed.
Id. at
537
(Law Div.1978),
City
v.
part
Sharra
1257
overruled
A.2d
535,
(App.Div.1985),
City,
N.J.Super.
Atlantic
not over
holding
unimproved property
did
as
that the
Fleuhr,
supervision
of a
beach.
negligent
ride
for
Noting
it
A.2d
that was
supra,
N.J.Super. at
182.
TCA,
Appellate
interpreting the
not
federal cases
bound
rejected
interpretation
Third
New
Division also
Circuit’s
(3d
Kowalsky Long
Township,
72 F. 3d
Jersey law in
Beach
Cir.1995).
Fleuhr,
N.J.Super.
A.2d
supra,
at
182.
municipality
a
no
Division held
has
obli
Appellate
488-89, 697 A.2d
safe. Id. at
gation
unimproved prоperty
to make
summary
judgment
defen
granting
the order
182. It affirmed
a
constituted
plaintiffs
claim that
the ocean
dant’s favor
had a
to warn
and that defendant
dangerous condition
Id.
provide lifeguards at the beach.
of its decision to
independent
however,
distinguished,
public entity’s
It
a
at
II May argument. City presents a Cape two-fold Defendant First, Appellate Division violated the basic that the it contends TCA. It determining exists under the for whether rules alleged, and it contends claim has been that even if a valid asserts valid, is the basic rule action not claim the instant that the Second, liability. contends immunity prevails defendant over negligent supervision negligent provision that the claim public entity cannot be held protective must fail because services wave, injuries exclusively by liable one of the natural- ocean, ly occurring unimproved forces of the based on the proper- *6 ty immunity, N.J.S.A. 59:4-8.
Plaintiff concedes that both the Appellate trial court and the properly rejected his claim that Division the ocean constituted a public property on condition defendant had a which independent providing to warn lifeguards. bathers Plain- argues, however, tiff he permitted pursue should be to his negligent supervision claim for because defendant to decided provide lifeguard position, services. Unlike defendant’s plaintiff Appellate and the Division upon activity focused on the property alleged lifeguards super- failure of the properly to —the vise the beach —rather than on the condition of public proper- ty itself.
Amicus curiae Ocean (OC) County Joint Insurance Fund ar- gues immunity when both provision and an appear ease, apply to a provision TCA trumps the liability provision. observes in OC other eases in which New Jersey suggested courts have negligent supervision that a claim forward, go unimproved could property was not at issue. OC maintains that in present case unimproved and, property immunity directly therefore, is implicated must trump the imposition any liability under the TCA.
Amici curiae Surfers’ Jersey Environmental Alliance-New (SEA-NJ) S) (collectively and Surfrider argue Foundation &S Appellate that the Division’s decision based the fiction that a lifeguard could have taken prevent plaintiffs injury. action to S & ocean, waves, S maintain that particularly the action of the predicted any certainty cannot be with in advance. For that reason, vigilant lifeguards even the most guarantors are not safety of who those venture into the ocean. S & S are concerned that, decision, as a Appellate result of the municipalities Division’s potential dangers will address restricting the ocean waters, especially access coastal rough, when the ocean is thereby unduly limiting challenges those who revel in the present- breaking Alternatively, municipalities will seas. by rough, ed thereby liability, ad- beach to avoid lifeguards from the remove prefer protected while versely affecting people those who bathe by lifeguards.
Ill
permitted to
should be
The determination
whether
entity
against
that its
proceed with his claim
failing
either
supervision
their
beаch
were
Emily
by Hurricane
choppy
surf conditions caused
warn
analysis
entirely requires an
failing
the beach
to evacuate
State,
265-
the TCA. Troth v.
subsections of
several
A .2d515
-A-
*7
13-10,
TCA,
enacted for the
59:1-1 to
The
N.J.S.A
immunizing public
reestablishing
general
rule
purpose of
Odom,
v.
150
liability
injuries
for
to others. Brooks
entities from
(1997).
for
395, 402,
A.2d 619
It was not enacted
N.J.
696
Farms,
v.
Bd.
creating liability.
of
Russo
Inc. Vineland
purpose
Educ.,
110,
(1996);
Jersey
84,
New
A.2d 1077
144 N.J.
675
State,
4, 11,
N.J.Super.
477
195
Guar. Ass’n v.
Property-Liab. Ins.
denied,
188,
99
N.J.
(App.Div.),
A.2d 826
certif.
(1984).
purview of
Municipalities
as defendant fall within the
such
entity”
(defining “public
to include
59:1-3
TCA. N.J.S.A.
State,
294,
Wright
N.J.
Kemp
v.
147
municipalities); see
ex rel.
(1997).
immunity
public entities
Generally,
for
309,
687 A.2d
59:2-1b;
Garri
exception.
rule
is the
is the
Middletown,
282, 286,
-B- N.J.S.A. 59:2-7 determining establishes a standard for whether public entity may negligent supervision public be liable for of a facility. recreational It “A provides: public entity is not for liable provide facilities; supervision failure of public pro- recreational vided, however, nothing in this section shall exonerate a public entity from protect against danger- failure to provided ous condition as [N.J.S.A -9].” 59:4-1 to A separate provision relevant public employees. TCA deals with It provides: public employee “A is not liable for the failure to provide supervision Nothing recreational facilities. this public employee section exonerates a in the supervision facility.” of a recreational N.J.SA 59:3-11. Although both of those statutes liability, are relevant to issues public entity’s neither addresses the immunity. claim of City Cape May contends that it is entitled to pursuant to unimproved public N.J.S.A. 59:4-8 and -9. prop- erty immunity provides: *8 injury a
Neither nor a public entity is liable for public an a employee caused by including condition of any unimproved public but not to property, limited any natural condition of river any lake, stream, or beach. bay, [N.J.SA 59:4-8.] 4-9, “Unimproved Section titled unoccupied and portions cer- of tain immunity,” provides: lands— a
Neither nor public entity a is public liablе a employee any caused by of condition the and unimproved of unoccupied the tidelands and sub- portions navigable merged streams, estuaries, lands, rivers, lakes, bays, the beds the and straits owned State. inlets
[N.J.S.A. 59:4-9.] expresses policy on 4-8 4-9 The Sections Comment immunity: underlying unimproved property determination to in its [I]t the members of the use property is desirable permit public public putting in a and that the burdens and such property natural condition expenses defending injuries as well as the claims for would safe condition expense use. In entities to close such areas view many cause probably public public the limited funds available for the acquisition improvement property not who use voluntarily recreational it is unreasonable expect persons purposes, injuries arising therefrom as to assume the risk of public property part unimproved to be for benefits received. paid the price 59:4-9.] [Comment N.J.S.A.
The also Comment states: considering risk is when all
The hazard and involved readily apparent exposure generally and conservation made by the recreational uses acreages, Thus, water oriented. sections 915,000] both land and [approximately an absolute immunity irrespective 59:4-8 and 59:4-9 public entity provided condition is one. whether particular [IMA] no contends that the oeeanfront beach was longer Plaintiff which, true, improved precluded if have property, would immunity. Plaintiff ar- application unimproved property lifeguards gues negligent supervision instead produced his with the natural conditions of ocean combination - and, therefore, injuries, any immunity under 59:4-8 and argument, liability. rejecting that not override In should Kowalsky. Third trial relied on the Circuit’s decision court summary in favor of Kowalsky, granted judgment the court injured by bathers at a municipalities two that had been sued by Hurricane Gustav. 72 municipal by large waves created beach Kowalsky found that the entities at 392. court F.3d unimproved plaintiffs’ immunized from the claims under were waves, held the ocean of Section 4-8 and property injuries, were natural conditions plaintiffs’ which essentially property. Kowalsky Id. at court unimproved 390. of the ocean matter natural condition found as a of law *9 542 any lifeguards negligent supervision by proximately
rather than plaintiffs injuries. present caused facts case also allow dispose legal us to appeal theory of without causation reaching immunity the merits of the claim. note, however, patternеd
We that our TCA is after the Califor City Diego, nia Torts Claim Act. After Gonzales v. San 130 of 882, (1982), Cal.App.Sd Cal.Rptr. alleged negli 182 73 held gent supervision by lifeguards of a beach was not covered by unimproved public property immunity, California’s the Califor Legislature nia overturned that enacting 1987 decision Cal. § statutory essentially provides Gov.Code 831.21. That amendment presence lifeguards signs or absence of does not alter provided unimproved public absolute for property. involving predated Cases accidents that the amendment have See, severely. criticized e.g., County Gonzales v. Morin Los of Angeles, 184, 479, (1989) Cal.App.Sd 215 CalRptr. 263 483-85 (stating “represents that Gonzales an unwarranted restriction of followed”); sovereign immunity and should not be Rombalski v. Beach, City Laguna 842, 261 820, Cal.App.Sd Cal.Rptr. 213 828- (1989) P.J., (Crosby, Acting concurring) (stating hybrid 33 theory and unnecessary); County Gonzales is unsound v. Los Geffen Angeles, 188, (1987) 492, Cal.App.3d Cal.Rptr. 197 242 494-95 (stating hybrid directly Gonzales condition rationale inconsistent 831.2). plain with the meaning § Cal. Gov.Code 1987, courts, Since Kowalsky California like the Third Circuit in TCA, interpreting consistently permit have refused recover against municipalities injuries ies proximately natu ocean, regardless ral conditions of the of whether were See, Knight present. е.g., City v. 4 Capitola, Cal.App.4th (1992) Cal.Rptr.2d (holding no for failure to warn for bodysurfing injury occurring lifeguard present); while Tessier v. Beach, City Newport 219 Cal.App.3d Cal.Rptr. (1990) (holding city not diving liable for because ocean condition); Morin, constitutes natural supra, Cal.App.3d Cal.Rptr. (holding hazardous recreational im- diving injury); county plaintiffs from ocean munized County City Superior Court Santa Cruz Santa Cruz *10 (1988) 999, (holding Cal.App.3d Cal.Rptr. 244 105 (Magana), 198 immunity city’s plain remove presence lifeguards did not diving injury resulting from condition of tiffs river natural 188, Cal.App.Sd Cal.Rptr. 242 492 Geffen, supra, property); 197 county from (holding immunized unimproved property plaintiffs diving injury). ocean Jersey also Legislature revisit
We recommend the New and of 4-8 covers acts omission issue whether Section by lifeguards. commission
-C-
Ordinarily,
proximate
deter
the issue of
cause should be
Seiler,
93, 101,
by
v.
119 N.J.
574
mined
the factfinder. Scafidi
(1990).
stan
cause has
described as a
A.2d 398
Proximate
been
of an
limiting
consequences
for the
act based
dard
“
sense, justice,
logic,
policy
‘upon
common
mixed considerations
”
Co.,
77-78,
69,
precedent.’ Caputzal
Lindsay
v. The
(1966)
Co.,
(quoting
98
222 A.2d
Powers v. Standard Oil
893,
734,
(1923),
o.b.,
A.
N.J.L.
Viewing the
law, any negligence by the
as a
we conclude that
matter
injuries.
It
proximately
plaintiffs
not
cause
did
injured
large
plaintiff
wave struck
undisputed that
was
when
him,
into
ocean floor. Plaintiff
causing'his head
forced
be
nearly five
an
who had been at the beach
experienced
was
surfer
condi
the accident. He therefore knew
ocean
hours before
surfing in the
appreciated
risks
with
tions
associated
According
part by
Emily.
to S
choppy
caused
Hurricane
ocean
S,
rough
high
very
& the
ocean
risks are the
conditions
experienced
attract
surfers like
to the ocean beach in
view,
place.
the first
with that
Consistent
SEA-NJ on behalf of
argued
Appellate
three
recently
surfers
before the
Division that
safety
their
based on bad water and
conditions
weather
hurricanes
be decided
surfers
those
should
because
conditions
perfect
Oliver,
create
sport.
environment for their
State v.
N.J.Super.
Here,
n Furthermore, time of at the the accident there wеre two life- guards patrolling lifeguards’ beach. It was the common practice to restrict bathers to an area to be a reasonably deemed safe Pappas, distance from beach. lifeguard the senior approximately twenty years had of experience patrolling the *11 Beach; Cape May than spent more half of time that was at the First Avenue He did any justification Beach. not find to close the plaintiffs injury. lifeguards’ beach before or after stand was sand, at the edge only yards water’s in the wet fewa short from lifeguards eventually where one of plaintiff. the rescued Upon distress, noticing plaintiffs lifeguard immediately Lewis went to plaintiffs aid. Lewis attending plaintiff, While was to Pappas pulled the out other bathers of the water because he felt that it patrol was not safe for him to the alone entire beach while Lewis provided plaintiff. lifeguards completed aid to After the their emergency plaintiff, to reopened assistance the beach was to bathers.
Viewing in light those of facts the Brill standard convinces us alleged negligence lifeguards the remotely the is too accident, insignificantly plaintiffs legal related so that in a sense, alleged the lifeguards fault the not does constitute “a accident, cause of ... simply presents [the] [but] the condition under injury which the was received.” Brown v. United States Co., Stove Stated differ ently, we conclude that a jury only reasonable could find any negli- and that plaintiffs accident was caused the waves plaintiffs not gence by proximate was cause accident. remanding judgment Appellate Division the matter entity. reversed, judgment public
for trial is and is entered HANDLER, J., dissenting. immunity novel presents question case whether
This contributing liability multiple there causes overrides when are only injury of those would confer an accidental and one causes municipality. on the The Court obviates need law, reasoning that; question, as a sole address this matter proximate plaintiffs cause of natural condition conclusion, and I do subscribe to that therefore ocean. not dispose of this the issue that I believe must be resolved to address case.
I (“TCA”), construing Claims Act it is applying the Tort rule frequently observed that entities This exception. is the N.J.S.A. 59:2-1b. notion See supports proposition oft determination stated injured against entity, person prevail can whether an exist, immunity appear the latter both “[w]hen Cramer, 627 A.2d the former.” Tice v. trumps *12 a proposition does not constitute basis Although ease, in I believe it analysis and determination this the Court’s resolved, namely, issue that must be bears on.the central multiple injury effect of causes of accidental under TCA. I do support expansive not find clear for the conclusion that the TCA entity always public liability from an immunizes accidental injury injury, only there is a where combination causes of that immunity. one of In order to which confers ascertain intended context, an language effect of the TCA this examination history legislative required. the statute and its is
A. municipality respect The TCA absolves a from of its natural property providing: injury Neither a nor a is liable for an entity employee including condition of any but not limited to unimproved public property, any
natural river lake, stream, condition or beach. any bay, [N.J.S.A. 59:4-8.] provision unimproved silent on whether a condition of property that is combined other with causes of accidental necessarily immunity. confers determining
In the meaning unimproved property immu nity 59:4-8, under N.J.S.A. express we should first resort to the language yield of the statute to ascertain whether that can a clear Bergen Sisler, meaning. Bank Comm’l (1999) (“The step any statutory analysis A.2d 944 first is to plain language examine the statute’s as the clearest indication of its meaning.”). The TCA does if simply not state that a condition of unimproved property is one of combination of causes of an injury, immunity Rather, accidental always follows. it is silent on necessarily whether such a condition confers when it is a issue, injury. interpretative concurrent cause of the there fore, is require whether statute should be construed to that if only multiple injury gives one of causes of accidental rise to though generate liability other causes would —even —no upon municipality. can visited be determining meaning unimproved property immu- nity 59:4-8, language under provision N.J.S.A this should *13 provisions of compatibility with other construed to assure its be Medina, Lines, 222, 226-27, v. N.J. TCA. Inc. Seatrain (1963) provisions statutes should be (observing 188 A.2d harmony together effecting legislative overall construed in and as intent). expressly area of the statute considers One governmental involves relationship between general. N.J.S.A. 59:3-11 responsibility public property for provides: failure is not liable for the supervision A public provide employee Nothing a for facilities. in this section exonerates public employee
recreatiоnal recreational in the of a facility. supervision effect, immunity and contemplates qualified both provision this respect supervision public property. over limited is public employee a immunity provided by this section for But, cause; provide supervision.” “failure to specific limited a for a on employees cause based it does not “exonerate” limited, public employees liability for is similar supervision. The TCA, 59:2-7, in another section to that contained negli- public entity exonerated for provides that not which supervise facility. gence it once undertakes recog on the espoused in these sections is based approach resulting improved use of from the nition that accidental multiple is no often causes. There public property will entail understanding in why that does not inform -the obvious reason injury in the provisions governing accidental application tended should read unimproved public property. The TCA be context of harmonized, whole, and construed provisions as a its individual (cid:127) legislative overall intent. See way most consistent with Freightways, 140 A.2d Fiore v. Consol. legislative at the time the intent A consideration lability provi compels conclusion thаt the TCA enacted improved public negligent supervision of the TCA sions gov provisions regarding its reconciled with property be should unimproved property. responsibility ernmental plain meaning that derived from In the of a clear can be absence under- statutory language, determination unambiguous lying Legislature intent of turns consideration of extrinsic Ryan, Wingate factors. Estate 693 A.2d *14 construing origins 457 In a statute that has in its the incorporates principles, analy common law and common law may sensibly sis an of “commence with evaluation ‘the common Jersey adoption law of ... New the time of the of [a]t the ” 437, 443, Corp., v. statute.’ Renz Penn Cent. 87 435 A.2d (1981) Co., 243, 250, 148 (citing Egan 540 v. Erie R.R. A.2d (1959)). 830 key unlocking legislative
The historical
the
understanding of
in
sovereign immunity,
concurrent causation
the context of
the
TCA,
progenitor
common-law
is
concept
the
the common law
contributory negligence. Contributory
emerged
negligence
as a
judicial
doctrine
origins dating
of the common law with
to 1809.
Renz,
(citations omitted).
450,
supra,
N.J. at
It
way
found
Jersey
its
into New
common law in the middle of the
Moore,
(E.
century.
last
See Central R.R.
v.
Co.
N.J.L.
&
1854);
Rediker,
Vandegrift
A.
(Sup.Ct.1849).
N.J.L. 185
on,
Early
contributory
the doctrine of
negligence precluded recov
ery on
of a
part
negligent plaintiff, regardless
the
degree
Renz,
his or
culpability.
supra,
her
from as not to be a in as a sense, cause accident, injury negligence, or whether the was due to the as well as proximately plaintiffs negligence to the defendant. If the act of faulty simply presents injury legal which condition under in received, was and was not, sense, a cause then contributory thereof, whether, the sole will be under question in the circumstances, and situation in which the it received, was due to negligence. is, But if the proximately defendant’s plaintiffs —that injury, it him to a unless recovery, will disentitle directly —contributed wrong. wrongfid to an intentional willful, act was amounted defendant’s added) (emphasis [Id. A. ]. 215, 26 at allocating assigning responsibility in Principles of fairness tort A damages gained strength in the evolution of law. also emergence of the doctrine of major change growth in was the Legislature the common comparative negligence.1 overtook negligence,, comparative by adopting providing an act law 2A:15-5.1, 24,1973. May -5.2. Influenced effective action, legislative public policy implicit considerations of rejected contributory negligence part as subsequently this Court adopted comparative negligence Jersey common law and of New Renz, actions. of fault tort principles govern the allocation supra, N.J. A.2d 540. then, principles adoption
At the time the TCA’s *15 being in of modified and negligence the course contributory were negligence. Legisla- by comparative superseded those of negligence understanding principles comparative of of ture’s clear by implicit explicit is causation demonstrated and concurrent the example, in the TCA For proximate to causation references in negligence principle express comparative an adopts TCA N.J.S.A. 59:9-4: negligence an ... to not bar in action by any party recovery shall Contributory negligence damages was not act, the under this if such
recover
extent permitted
sought
against
greater
negligence
whom
is
or was
recovery
than the
party
negligence
against
greater
is
the
whom recovery
the
of
persons
not
than
combined
negli-
percentage
sought.
damages
the
of
shall
diminished by
sustained
be
Any
recovering.
gence
attributable
the person
Legislature’s appreci-
The comment to N.J.S.A 59:9-4 reflects
the
common law:
ation of the state
eliminating the harsh
is to
the law
of this
humanize
by
provision
purpose
negli-
adopting
negligence
in its
comparative
place
doctrine
contributory
negligence
is
from
gence.
barred
the doctrine of contributory
Under
recognized the
still
defense
as 1968 all but seven states
While as late
negligence
negligence
form,
traditional
by
comparative
in its
contributory
87 N.J. majority
453,
It in providing 59:4-2, condition of property Legis under N.J.SA contemplated lature principles comparative negligence apply despite any would express the absence of reference to comparative causation statutory concurrent in that Township section. Nora v. Livingston, N.J.Super. Cf. *16 curiam) (App.Div.1980) 410 278 (per (noting A.2d in situation joint involving comparative negligence tortfeasors relevance of principles in allocating among plaintiff, gas defendant company, and municipality defendant negli road). gently maintained slightest There is not the suggestion or providing in specific immunity intimation attributable to
551
59:4-8,
Legislature
in
under
unimproved property
N.J.S.A
principles
fault
application
comparative
tended to foreclose
59:9-4,
recognized in
there is a combina
expressly
N.J.S.A
when
causes,
ordinarily
rise
give
of which
multiplе
tion
some
579,
See,
Nora,
Further TCA in ty. recognized the relevance of California’s The Court has Garrison, supra, E.g., 154 N.J. at lending meaning to our TCA. 46, Salem, 35, 1101; 289, County A.2d Levin v. A .2d recognized or causation were
Principles
comparative
fault
combination of causes
in the context of a
applied
California
immunity) resulting
injury.
(including
conferring
accidental
one
design immunity
applicable,
statutory
in which
a case
failure-to-
Supreme
imposed
Court
California
State,
immunity. Cameron
grounds,
warn
and refused to confer
(1972) (in bank).
Cal.Rptr.
building faulty bridge, they might a still state’s recover passive negligence failing danger. in of to warn that The Camer- explained: on court accident____ concurring, Regardless
There
be two
causes of an
of
may
proximate
negligence
go
of the active
were entitled
availability
theory,
before
plaintiffs
jury
negligence
i.e.,
a
an accident caused
the state’s
theory,
passive
against
danger
to warn
it
failure
known to
but not
to a
icy
apparent
highway
careful
user.
reasonably
485).]
(quoting
[
B. view, my distinct, In dealing in with multiple or concurrent causes that injury, gives contribute to an accidental one of which governmental immunity, Legislature rise to intended to invoke principles comparative Therefore, negligence or fault. I believe proper principle applied compares of law to be is one that causes, immunity-conferring balances the liability-imposing as any contributory negligence well as part plaintiff, on the and accоrds each proportionate weight cause its in allocation statutory responsibility. majority criticizes it was *19 statute, (damages 2A:15-5.1 comparative-negligence negligence attrib by percentage of shall be diminished
sustained
113,
Scafidi, supra, 119
at
574
person recovering);
N.J.
utable to
449-51,
Azzara,
429,
398;
111 N.J.
545
see also Ostrowski v.
A.2d
(1988)
damages should be allocated to
(finding that
A.2d 148
harm attribut
malpractice that increased risk of
reflect doctor’s
negligence). This
personal
and acts of
plaintiff’s
condition
able
recog
principle of tort law that
analysis
comports
also
with the
duty
encompasses
potential
a victim’s own
that a
of care that
nizes
contributory negligence
proper
can
a
basis for
wrongdoing or
be
(1997);
liability.
Kerrigan,
v.
555 part entity by Gonzales, assuming protective duty. a supra, Cal.App.3d Thus, Cal-Rptr. 130 182 73. “when a public entity voluntarily provides protective particu service for public, lar members of the which induces their reliance on the proper performance service, of that does not [the TCA] necessari ly provide immunity.” State, Arroyo 755, 764, Cal.App.4th. Cal.Rptr.2d way, “Put another inapplicable public entity’s where a actively conduct negligent ly degree increases the danger posed by a natural condition.” California, 158, 167, Mercer v. Cal.App.3d Cal.Rptr. Doe, (Ct.App.1988). See also Lee v. N.J.Super. (App.Div.1989) A.2d 1045 (holding for inadequate police protection not apply police would “if the officer caused the rely victim to on him protection police or the officer otherwise victim.”). increased the injury risk of to the principles These comparative negligence and concurrent cau- sation appropriately are construing invoked in applying reiterate, comparative TCA. To long recog- causation has been nized the common Jersey. law of New entirely It is reasonable to view the of language choice implicitly N.J.S.A. 59:4-8 as incorporating the principles common law compara- of concurrent Thus, tive causation. where a concurrent cause —such as the negligent supervision of employee independently or — causes, concurrently substantially increases the risk of posed by causes, any other specific liability provision covering this provide recovery cause should in proportion to the case, fault attributable to that cause. imputing principles this comparative causation to legislative N.J.S.A. 59:4-8 reconciles a intent protect negligent supervision bathers from by lifeguards with the text of the statute.
To the extent negligent supervision that the municipal em- ployees substantially increased the posed by risk of the unimproved ocean, condition of property, namely, percent- that the. age may of increased risk impose be used to liability. and allocate Thus, allowing recovery only for the increased risk attributable to supervision simultaneously acknowledges
negligent unimproved property by exonerat- ascribed to the condition ing immunity-conferring condi- municipality extent the injury. proximately accidental tion contributed Ill majority plaintiffs as matter of law determines that waves, only by accidеnt was caused a natural condition of ocean, 544-45, ante grounds at and its at A.2d thus plaintiffs negli- holding lifeguards’ on failure establish that injury. Ante gent supervision proximately his disagree. properly at 1041. I the Court A.2d I believe that more comparative negligence princi- should based determine ples, taking presents into account this case concurrent multiple causes. excluding supervision
This be viewed record cannot as Further, lifeguard independent an as concurrent cause. determining plaintiff the record also reveals a basis for contributorily negligent.3 Consequently, there evidence that coupled employees’ negligent the condition of the ocean with the supervision plaintiffs negligence own combined contribute injury. to the accidental
Comparative negligence
entry
doctrine does not
foreclose
summary
disputes
judgment
genuine
when there are no
over facts
Vega by
Muniz
that are
to the issue of
cause.
proximate
material
Piedilato,
496, 529,
(1998) (Handler, J.,
154 A.2d 442
concurring) (stating
our comparative
jurispru
“permits
summary judgment
dence
to enter
courts
in the defen
extraordinary
juror
dant’s favor in the
where no
case
rational
surfer,
The Court
out that
with
was an
familiar
points
еxperienced
dangers
high surf,
and had
five
been at the beach
hours on the
day
Ante at
IV stated, For the reasons I dissent. Justices O’HERN and join in opinion. STEIN this
O’HERN, J., dissenting. (TCA), 14-4, The Tort Act Claims N.J.S.A. 59:1-1 to allows recovery against public employees entities when the claim negligent supervision is based on the of recreational activi- ties. A slim presented but triable issue of fact was here concern- ing Cape May’s lifeguards whether super- were in their City’s vision of the beach. I judgment would therefore affirm the Appellate allowing proceed. Division the claim to I would comprehensive substantially for in its do so the reasons stated opinion: agree judge that the the ocean are We with the motion beach and unimproved agree as a also that once a bather enters such body water, We property. *22 injuries can be no for river, ocean or which is there lake, bay unimproved, liability
which due to encountered in that of water. occur conditions solely unimproved body or uneven and Thus, turbulence, a who encounters forceful waves surfaces person injured against who is due conditions no cause of action the to those has solely or That is because the and public entity public employee. public entity public obligation or have no to natural conditions to ameliorate employee improve dangerous In the short, inherent but features unimproved property. public obligation have no to make safe. entity unimproved and public employees property obligation signs flags concerning to or the the has no Moreover, entity public post and if it is them to condition of the water inform bathers safe for enter the water. judgment granting affirm extent, To that we the order insofar as summary asserts the ocean condition and that the defendant constituted had a to warn of its decision to at the beach. independent provide On other to services at a and hand, protective decision beach provide for does not those services potential liability performance implicate The immunity reasons for for unimproved property. unimproved property is an extension of the conferred оn entities and then- immunity immunity public failing for to recreational facilities. It is provide public employees supervision designed encourage to recreational facilities. to entities and public acquire provide It also confers on the to not to public entity authority provide provide State, to or not to The or munici- supervision, improve improve property. county still to the recreational areas such as a river, access pality may provide public legal obligation no lake, or ocean. has entity bay supervise at these sites. once a decides to However, activities public entity supervise lifeguards, providing such it site, activities at the as has determined by presumably providing lifeguards exercising right benefits are than its by more derived by nothing. it to do Once has made that the fundamental reason for its decision, vanishes. immunity (App.Div.1997).]
[303 488-89, 697A.2d 182 N.J.Super. 481, only I add these observations:
I
A.
City
liability
invokes
the maxim
both
“[w]hen
exist,
the former.” Tice
immunity appear
trumps
latter
Cramer,
instance,
N.J.
A.2d
this
City
referring
general
immunity
for
to the
the “natural
condition” of the beach. See
by
N.J.S.A. 59:4-8. As illustrated
Tice,
the facts in
the Tice rule
predominance
establishes the
sovereign immunity
liability
when the
immunity
bases
both
injurious
Tice,
derive from the same
conduct.
example,
for
in
by
volved an accident
police
caused
car that
engaged
in a
pursuit
fleeing
hot
of a
suspect. The issue
of whether
trumped
versa,
liability, or vice
arose because various sections of
governing
TCA
pointed
same conduct
in different di
rections if one assumed that
pursuing police
the.
officer was
59:3-1a,
negligent.
allowing
N.J.S.A
recovery
for
from
employees
private
to the same extent
persons
injuries
as
by
omissions,
caused
an employee’s acts or
appeared
provide
officer,
basis of
direct
for the
sup
59:2-2a
ported
Tice,
municipality.
vicarious
for the
supra, 133
353-54,
time,
in this ease because there separate were two but concurrent plaintiffs injury: causes of the natural condition of the ocean negligence Cape May’s waves and the lifeguards. Only one governs lifeguards’ standard the conduct. Unless the facts conclu- sively established that no rational fact finder could find that the lifeguards’ negligent contributing conduct was not a cause the injury, immunity there is no trump Although to that standard. injury, City there are two causes of explain why the fails to the immunity trump liability attributable to one cause would with respect to the municipality’s immunity concurrent cause. The for effect, the natural condition of the ocean trumping has no otherwise, municipality’s liability alleged negligence for the on the lifeguards. of its
B.
City
in
suggests
its
cannot be based
also
brief
exclusively
lifeguards’ negligence
on the
because the accident was
striking
causing
the
to strike
plaintiff,
wave
his head
argument begs
question
That
of concurrent
the ocean floor.
lifeguards
not
his
causation. Plaintiff does
contend that
drove
in
would
been
head into the sand. He contends that he
not have
in
had
care.
place
the surf
the first
exercised due
Gwinnell,
(1984)
538, 543,
Kelly
96 N.J.
See
v.
A.2d
may
(explaining
negligence of
host
create risk
how
social
harm).
intervеning
To
claim based
plaintiff’s
dismiss
telling
passengers
on a lack of
is
like
causation
somewhat
they may
complain
the Titanic that
not
that the owners told the
because,
all,
poor
to
into
it was
captain
steam ahead
weather
after
iceberg
them to
into the
that caused
be thrown
sea.
v.
said Weiss
response,
repeat
If that is
facile a
I
what we
too
Transit,
(1992):
Jersey
New
128 N.J.
The concerns about the Legislature’s California City amendment of its Tort in response to Gonzales v. Claims Act Diego, San Cal.App.3d Cal.Rptr. (1982), were presaged by Appellate carefully Division and in its handled opinion.
The flaw in the Gonzales decision was that the conduct of the lifeguards unimproved “hybrid” turned an beach into a form of improved property. The Gonzales condition” rationale is “hybrid thus inconsistent with the directly meaning language of the absolute plain [of embodied section 831.2 “ ‘dangerous TCA], California Moreover, the Gonzales court condition’ imposed under section for the liability, failure to warn the beach user City’s of the dangerous dangerous ‘hybrid condition.’ A component ‘hybrid condition,’ however, was the failure to warn of the natural City’s current. other rip words, ‘dangerous ‘failure to warn’ is City’s treated not as the basis for only condition’ integral dangerous but also as an
liability, condition itself. part The using ‘failure to circularity City’s warn’ two distinct to establish capacities emasculates natural condition completely immunity.” Angeles, Los [Geffen County 188, 242 Cal.App.3d 492, 495 Cal.Rptr. (1987)(citation omitted).] The 1987 amendment of the responded California TCA to that Gonzales. Section 831.21 of the California circular reasoning provides: TCA now
(a) Public beaches shall be deemed to be in a natural condition and unimproved notwithstanding the or absence of services such provision as life public safety guards, or sheriff medical fire police patrols, services, beach protection services, signs. services, or of this cleanup section shall to natural provisions apply only conditions of and shall not limit or public property any liability added.) 4 (Emphasis otherwise exist may this division. pursuant Jersey “otherwise exists” in New is under 59:3-11, expressly which declines to exonerate “a ruling Our Division took in its Appellate pains explain: obligation signs flags Moreover, the has no public entity concern- post ing the condition of the water and inform bathers if it is safe for them to granting enter the To extent, water. we affirm the order summary
judgment insofar as asserts that the ocean constituted a condition and that the defendant had a to warn of its independent decision to at the bеach. provide [303 182.] A.2d N.J.Super. *25 public employee supervision in the of a recreational facility.” opportunity attempt prove have to to Plaintiff should injuries his Cape May’s lifeguards to cause and contributed jury and munici- question have a the causation assess the evaluate any, summary At pality’s liability, if for his broken neck. jury’s judgment may usurp the stage, a court not role and declare surf, hearing only factual without benefit of a and surf, harm. caused the
II reject City’s significant impels An even more reason me arguments. accept City’s arguments To would mean that lifeguard providing service have no to save entities drowning City’s For the essence ocean bathers. that is . reasoning. may into the A child who ventures too far surf be danger drowning being as result of struck wave. Under City’s argument, paid lifeguard would under no be legal duty ordinary drowning to exercise care to save that child absolutely from the surf if a because it immune wave strikes the child or child out to That would law and sucks the sea. be bad public policy. bad major always
Promotion of tourism has been a item on our agenda. throughout State’s Television viewers and radio listeners forget area cannot refrain made familiar a former You, governor: Jеrsey Together.” “New Perfect state, spent making tourists billion in our tourism New $25.5 Jersey’s industry. Jersey largest second The Shore is the State’s dominant attraction. not want to tell tourist We would to have posted lifeguards legal duty protect tourists no that oür have them. importance lifeguards economy to the shore is immedi-
ately apparent anyone visiting our beaches on a summer along park afternoon. A short ride the coast reveals that bathers cars, pay badges, their unfold their beach towels near points municipalities lifeguards. those shore have where stationed unpatrolled lifeguard between the stands are relative beaches unused, ly may though even access to those beaches be free. Perhaps the best of the link evidence between municipalities that most beach revenue is the fact seashore choose *26 lifeguard programs despite fund to the fact that N.J.S.A 59:2-75 being do so. protects declining them from sued for to Some beach “protected designate portions communities of their beaches as and bathing bathing prohibit except established” beaches and at such Oliver, lifeguards provided. and when are v. beaches State 405, 418, N.J.Super. (App.Div.1999). A.2d 491 Although immunity, Malloy the dominant theme of the TCA is State, 519, (1978), 515, v. 76 N.J. the Act makes a liability. careful balance and The Act between declares [to be] the shall of this State that entities be liable for public policy only public their within limitations of in accordance with this act and the fair and uniform herein. All of in this act established should provisions principles legislative be construed with a view out the above declaration. to carry 59:1-2.]
ÍN.J.S.A public fair principle A and uniform of the Act is that entities negligent supervision should be liable for their recreational' (whose facilities. N.J.S.A 59:3-11. The State of Hawaii beaches tourists) a Jersey’s rival New as destination for has the same public policy. Supreme held that “[m]em The Hawaii Court has public City’s right had the patronized [the beach] bers who duty qualified assume were to that the at the beach they assigned. They right for the had duties to which were rely upon City competence vigilance employees.” of these Honolulu, 612, Kaczmarczyk County City v. 65 Haw. P.2d up, City Cape May argues
To sum it is entitled to upon immunity, unimproved property absolute based 5 "A is not for failure to liable public entity supervision public provide nothing facilities; however, recreational in this section shall provided, against exonerate a for failure from public entity protect as 59:4-1 [N.J.S.A. 4-10.]” condition provided 59:4-8, exclusively because the was caused
wave,
occurring
“Each
naturally
forces of the ocean.
one of
respect
Act
with
to the
should be read
[of
however]
subsection
subject
harmony
of the others and
with each other
matter
Brown,
A.2d 493
with the whole.” Brown v.
(citations omitted).
(1981)
ought
sight of
not lose
the fact
We
impetus
for the
of the TCA
the Court’s
enactment
Department
and Economic
decision Willis
Conservation
(1970),
sovereign
Development,
abolishing
A.2d 34
Willis,
three-year-old
immunity.
child was bitten after she
attempted
sugar
caged
to feed
to a
bear.
Id. at
For O’HERN and STEIN— affirmance —Justices 3. ANNENKO,
IN THE
AT
MATTER OF LUBA
AN ATTORNEY
LAW.
July
1999.
ORDER
having
Court,
duly presented
This matter
to the
it is
been
HILL,
ORDERED that LUBA ANNENKO
who
of CHERRY
notes
Cal. Gov.
Gonzales
superseded by
§
Code
542,
That, however,
831.21. Ante at