Fluehr v. City of Cape May

732 A.2d 1035, 159 N.J. 532, 1999 N.J. LEXIS 664
CourtSupreme Court of New Jersey
DecidedMay 26, 1999
StatusPublished
Cited by66 cases

This text of 732 A.2d 1035 (Fluehr v. City of Cape May) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fluehr v. City of Cape May, 732 A.2d 1035, 159 N.J. 532, 1999 N.J. LEXIS 664 (N.J. 1999).

Opinions

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, 697 A.2d 182 (1997). We granted certification, 152 N.J. 12, 702 A.2d 351 (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.

I

The Law Division decided the ease on defendant City of Cape May’s motion for summary judgment. We are therefore compelled to accept plaintiffs 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, 666 A.2d 146 (1995); Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 110 A.2d 24 (1954). The underlying accident occurred on August 31, 1993, while plaintiff was bathing [535]*535in 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs, 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 plaintiffs [536]*536aid. 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 plaintiffs 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.

Plaintiffs 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 Fluehr 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, 697 A.2d 182. 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, 697 A.2d 182.

The Appellate Division reversed. Id. at 481, 697 A.2d 182. It interpreted Kleinke v. City of Ocean City, 163 N.J.Super. 424, 394 [537]*537A.2d 1257 (Law Div.1978), overruled in part by Sharra v. City of Atlantic City, 199 N.J.Super. 535, 489 A.2d 1252 (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, 697 A.2d 182. 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, 697 A.2d 182.

The Appellate Division held that a municipality has no obligation to make unimproved property safe. Id. at 488-89, 697 A.2d 182. It affirmed the order granting summary judgment in defendant’s favor on plaintiffs 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, 697 A.2d 182. 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, 697 A.2d 182.

II

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.

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Cite This Page — Counsel Stack

Bluebook (online)
732 A.2d 1035, 159 N.J. 532, 1999 N.J. LEXIS 664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fluehr-v-city-of-cape-may-nj-1999.