MARGARET KELLY and JOHN KELLY v. SEA ISLE CITY and SEA ISLE CITY BEACH PATROL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3991-08T23991-08T2

MARGARET KELLY and JOHN KELLY,

Plaintiffs-Appellants,

v.

SEA ISLE CITY,

Defendant-Respondent,

and

SEA ISLE CITY BEACH PATROL,

Defendant.

__________________________________________________

 

Argued December 2, 2009 - Decided

Before Judges Axelrad and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2561-08.

Mark R. Cohen argued the cause for appellant (Levy, Baldante, Finney, Rubenstein, Cohen & Chizmar, attorneys; Mr. Cohen and Jack S. Cohen, on the brief).

Robert P. Merenich argued the cause for respondent (Gemmel, Todd & Merenich, attorneys; Mr. Merenich, on the brief).

PER CURIAM

Plaintiff Margaret Kelly (plaintiff) was injured when struck by a rescue kayak that had been accidentally carried into the surf. Because the lifeguards' act of placing the kayak near the water's edge was not palpably unreasonable, we affirm the summary judgment dismissing plaintiff's personal injury action.

In examining the order under review, we employ the same standard that governed the trial judge. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Spring Creek Holding Co. v. Shinnihon U.S.A. Co., Ltd., 399 N.J. Super. 158, 180 (App. Div.), certif. denied, 196 N.J. 85 (2008); C.W. v. Cooper Health Sys., 388 N.J. Super. 42, 57 (App. Div. 2006). In ruling on a motion for summary judgment, a trial judge must determine whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party[;] [i]f there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of R. 4:46-2." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Because plaintiff was the non-moving party, we view the facts in the light most favorable to her and, therefore, accept as true the description of the incident provided in her deposition.

Plaintiff testified at her deposition that, on July 25, 2005, she, her husband and her grandchildren went to a Sea Isle City beach specially designated for the use of surf boards and other similar devices. Plaintiff and her other family members sat on the beach near a lifeguard stand. Ten or fifteen minutes later, plaintiff entered the surf with her four-year-old granddaughter. While standing in shallow water with her back to the beach, plaintiff was struck in the back of her legs by an unmanned rescue kayak, causing a fracture of plaintiff's left tibia and fibula.

Michael Fender, a lifeguard on duty at the time of the accident, was also deposed. Fender testified that defendant's lifeguards were trained to place rescue kayaks slightly behind and either to the left or right of the lifeguard stand. They were also trained to keep lifeguard stands at water's edge and move them forward and back as the water's edge moved due to the changing tides. The surf, according to Fender, was "very rough" at the time of the incident. He testified that while he was seated on the lifeguard stand, a large wave swept by and, in receding, carried away the kayak that had been positioned to the left of the stand. Fender immediately waded into the surf and reached the kayak just as it struck plaintiff. Another lifeguard, also on duty at the time, provided a similar version of the events.

Warren Steele, a Sea Isle City beach patrol captain, was deposed. Steele testified that there was a concern, prior to this incident, of the potential harm posed by either the rescue kayaks or privately-owned kayaks used by patrons. According to Steele, defendant was in the process of replacing kayaks with rescue surfboards and had, by that point, limited the use of rescue kayaks to those beaches where surfing, kayaking and other types of boards were permitted. In addition, Steele testified that various associations, such as the Board of Health, the United States Lifeguarding Association and the South Jersey Chief's Association, required the presence on every beach of some form of lifesaving equipment, i.e., boat, kayak or surfboard.

In opposing summary judgment, plaintiff relied upon the deposition testimony briefly summarized above, as well as the deposition testimony of two lifeguards, who indicated they had observed a handful of prior instances when kayaks were accidentally taken into the surf. In addition, plaintiff provided an expert report of Thomas Griffiths, an aquatic safety specialist for thirty years, who opined that he was "fairly certain" from his review of the facts that the kayak was not dislodged by a "rogue wave," but by a strong backwash or as a result of being misplaced on the beach. He also claimed that kayaks are hazardous and that "good risk management principles would have dictated that the ocean kayaks either be removed from service on the beach or tethered to the lifeguard stations in some fashion."

In ruling on the motion, the trial judge accepted plaintiff's version of the facts but also found Griffiths' report contained a net opinion. As the judge observed, either moving the kayak further away from the water's edge or tethering it to the lifeguard stand in order to avoid incidents such as this was "counterintuitive" and contrary to their principal purpose of providing lifeguards with "the instantaneous ability to attempt to save a life." That is, the judge relied on the fact that in circumstances in which the kayak is needed "every second or two may count" and Griffiths' views, if followed, would require additional time to respond to an emergency than would be expended when untethered kayaks are kept close to the water's edge.

Defendant is a public entity. Except as expressly provided by the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, defendant cannot be held liable "for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." N.J.S.A. 59:2-1. Plaintiff first contends that defendant should be held accountable for having chosen to use kayaks instead of surfboards or whale boats in preparing for rescue operations. Second, plaintiff argues that defendant may be held responsible for the actions of its employees in placing the kayak at a particular location on the date in question.

The first aspect requires consideration of N.J.S.A. 59:2-3. Subsection (a) of that statute declares that "[a] public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity." Subsection (d) declares that "[a] public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable." As for the second aspect of plaintiff's suit -- that the injury was proximately caused by the acts or omissions of defendant's employees -- consideration must be given to N.J.S.A. 59:3-2. Subsection (a) of that statute declares that a public employee "is not liable for an injury resulting from the exercise of judgment or discretion invested in him." And subsection (d) declares that a public employee "is not liable for the exercise of discretion when, in the face of competing demands, he determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public employee was palpably unreasonable." As can be seen, whether considering plaintiff's action as asserting either a claim against the public entity due to its own exercise of discretion in designating the types of saving equipment used by lifeguards or as a claim against the public entity due to the acts or omissions of the lifeguards in the manner of placing the equipment on the beach, plaintiff was required to show that defendant's conduct was "palpably unreasonable."

What is palpably unreasonable has been described as behavior that is "patently unacceptable under any circumstance." Holloway v. State, 125 N.J. 386, 403 (1991). In Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985), the Court accepted the differentiation between ordinary negligence and palpably unreasonable conduct described in Williams v. Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979):

[T]he duty of ordinary care, the breach of which is termed negligence, differs in degree from the duty to refrain from palpably unreasonable conduct. The latter standard implies a more obvious and manifest breach of duty and imposes a more onerous burden on the plaintiff.

In amplifying, the Kolitch Court held that "for a public entity to have acted or failed to act in a manner that is palpably unreasonable, it must be manifest and obvious that no prudent person would approve of its course of action or inaction." 100 N.J. at 493. See also Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459 (2009).

It is true, as plaintiff argues, that what constitutes palpably unreasonable conduct is a question of fact. Vincitore v. N.J. Sports & Expo. Auth., 169 N.J. 119, 130 (2001); Furey v. County of Ocean, 273 N.J. Super. 300, 313 (App. Div.), certif. denied, 138 N.J. 272 (1994). That does not mean, however, that every suit governed by this standard must go to trial. Many cases that require consideration of the immunity provisions of the Tort Claims Act do not survive summary judgment even when posing a fact question regarding the public entity's or public employee's conduct. As with any other fact question, summary judgment should be awarded when the trial judge determines that the facts do not meet the standard erected by the Legislature. See, e.g., Black v. Borough of Atlantic Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993) (holding that although "the 'palpably unreasonable' determination presents a jury question in the sense that it is no longer specifically assigned to the judge[,] . . . like any other fact question before a jury, [it] is subject to the court's assessment whether it can reasonably be made under the evidence presented").

Even when accepted as true, plaintiff's version falls far short of demonstrating that the conduct of defendant or its employees was palpably unreasonable. The facts indicate that defendant's lifeguards kept the kayak at water's edge so that it would be in the most advantageous position for a rescue. We agree with the trial judge that defendant's employees acted appropriately in choosing not to keep the kayak further away from water's edge or by not tethering it to the lifeguard stand. And, even if we assume the lifeguards were negligent in allowing the kayak to remain too close to the action of the waves, such an ordinary act of negligence falls far short of the palpably unreasonable standard imposed by the Tort Claims Act.

Affirmed.

Plaintiff's husband asserted a per quod claim.

(continued)

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9

A-3991-08T2

December 15, 2009