MARYELLEN ASCOUGH v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5079-10T2

MARYELLEN ASCOUGH and

GLENN ASCOUGH, her husband,

Plaintiffs-Appellants,

v.

NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

DIVISION OF PARKS AND FORESTRY,

and ISLAND BEACH STATE PARK,

Defendants-Respondents.

________________________________

Submitted May 7, 2012 Decided June 14, 2012

Before Judges Parrillo and Skillman.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No.

L-851-09.

DeNoia & Tambasco, attorneys for appellants (G. John Germann, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Peter D. Wint, Assistant Attorney General, on the brief).

PER CURIAM

Plaintiff1 appeals from a summary judgment dismissing her complaint against the state agency defendants alleging that she suffered personal injuries while swimming at Island Beach State Park on August 18, 2007 as a result of negligence by the lifeguards in failing to fly flags that would have warned her of the rough condition of the surf that day.

Plaintiff testified in her deposition that she did not know what time she arrived at Island Beach State Park that day, but thought that it was in the late morning, "before noon." After she went onto the beach, she noticed that the flags indicating the condition of the surf were "green." Shortly thereafter, she walked into the ocean. Less than ten minutes later, she felt "rip tides" and "undertows," and attempted to get out of the water because she "didn't feel safe." As she was walking toward the shore, a wave knocked a ten-year old boy into her legs. The impact of this collision broke plaintiff's leg and also resulted in a torn meniscus in her knee. After she was assisted out of the water, plaintiff was brought to the first aid station by a wheelchair.

The "Daily Lifeguard Record" for Island Beach State Park, which plaintiff does not dispute, indicates that the surf conditions the day of plaintiff's accident were "calm" in the "a.m." and "rough" in the "p.m." This record also indicates that the flag code at the park was changed from "G/G" (green over green) to "G/Y" (green over yellow) at 11:50 a.m. Plaintiff does not dispute that green over green are the appropriate flags to fly when the surf is calm and that green over yellow are the appropriate flags to fly when the condition of the surf is in the condition it was at the time of her accident. Plaintiff's sole claim of negligence is that the lifeguards should have changed the flags from green over green to green over yellow before rather than after her accident.

The radio log maintained by the lifeguards and personnel at the first aid station at Island Beach State Park indicates that there was only one request for a wheelchair on August 17, 2007, at 11:44 a.m., which would have been six minutes before the flags were changed from green over green to green over yellow. This request was made from lifeguard stand five, which was the lifeguard stand in the area where plaintiff was injured. However, the lifeguard captain testified that some requests for wheelchairs are not recorded in the radio log.

After the completion of discovery, defendants moved for summary judgment. Defendants argued that plaintiff's claim was barred by the immunity established by N.J.S.A. 59:4-8 "for an injury caused by a condition of any unimproved public property." Defendants also argued that the evidence would not support a finding that the lifeguards were negligent in failing to change the flags from green over green to green over yellow before plaintiff's accident or that the defendants' alleged negligence was a proximate cause of plaintiff's accident.

We conclude that no reasonable trier of fact could find that the defendants were negligent in failing to change the flags to green over yellow before plaintiff's accident. This conclusion makes it unnecessary to consider whether N.J.S.A. 59:4-8 provides immunity from this kind of claim2 or whether defendants' alleged negligence was a proximate cause of plaintiff's accident.

Plaintiff did not present any evidence to dispute the statement in the "Daily Lifeguard Record" that the surf was "calm" in the "a.m." when the beach was first opened for swimming. Consequently, plaintiff did not present any evidence that defendants were negligent in initially flying green over green flags on the day of plaintiff's accident. Plaintiff's sole claim is that defendants were negligent in failing to change the flags from green over green to green over yellow before her accident.

However, plaintiff did not present any evidence that the surf changed from calm to rough a sufficient amount of time before her accident for the lifeguards to have observed this change in conditions and to have changed the flags before she entered the water. The only competent evidence that the surf became rough before the flags were changed was plaintiff's own testimony about that condition, and there is no evidence that plaintiff's observations of the condition of the surf were made any appreciable length of time before the flags were changed at 11:50 a.m.

Plaintiff's testimony concerning the time of her arrival at Island Beach State Park and entry into the surf was vague and conflicting. But even viewing her testimony and the other evidence presented on the motion for summary judgment in the light most favorable to plaintiff, her accident would have occurred no earlier than 11:30 a.m., which was fourteen minutes before a wheelchair was dispatched to the area of plaintiff's accident and only twenty minutes before the flags were changed. There is no evidence that the surf became rough before this time. Indeed, it could be inferred from the fact that plaintiff did not make any observation of a rough surf until she was already in the water that the change in the condition of the surf occurred around the time she entered the water.

Plaintiff relies in support of her negligence claim upon her answer to an interrogatory, which alleged that after her accident a lifeguard told her that "they should have changed the flags since this was the 12th rough surf injury that day." However, plaintiff's own deposition testimony did not support this allegation, and there is no other competent evidence that more than one other injury occurred before the flags were changed.

Plaintiff testified that while she was in the first aid station she met an unidentified member of the Island Beach State Park staff she believed to be a lifeguard, who also had been injured. This person said, "we better change the flags." However, he did not say when he had been injured or that any other persons had been injured in the surf that morning. Therefore, even assuming that the alleged statements of this unidentified person would be admissible, see N.J.R.E. 803(b)(4), they would not support a finding that the defendants were negligent in failing to change the flags before plaintiff's accident. Moreover, plaintiff did not present any other evidence that other accidents had occurred in the surf before the flags were changed.

Plaintiff also relied in support of her claim upon the expert report of Dr. Tom Griffiths, who expressed the opinion that defendants were negligent in failing to change the flags from green over green to green over yellow before plaintiff's accident. However, Dr. Griffiths' conclusions were based on a series of factual assumptions that were not supported by any competent evidence presented in opposition to the defendants' motion for summary judgment, including that plaintiff arrived at the beach before 10:30 a.m. and, most significantly, that there had been numerous other accidents in the surf before plaintiff's accident and that a lifeguard told her after her accident that they should have changed the flags sooner. Because the essential factual assumptions underlying Dr. Griffiths' opinion were not supported by the record, that opinion is not entitled to any weight.

Therefore, no reasonable trier of fact could find that defendants were negligent in failing to change the flags before plaintiff's accident.

Affirmed.

1 All references to plaintiff in this opinion are to the injured party, Maryellen Ascough. The claim of her husband Glenn is wholly derivative.

2 In Fleuhr v. City of Cape May, 303 N.J. Super. 481, 484-90 (App. Div. 1997), rev'd on other grounds, 159 N.J. 532 (1999), we held that N.J.S.A. 59:4-8 does not provide immunity to a public entity or employee for lifeguards' alleged negligent supervision of persons bathing in the ocean. In Kowalsky v. Long Beach Twp., 72 F.3d 385, 390-92 (3d Cir. 1995), the Third Circuit had concluded that N.J.S.A. 59:4-8 does provide immunity from such a claim. The Supreme Court discussed this issue in Fleuhr, 159 N.J. at 536-44, but ultimately decided the appeal on other grounds, id. at 544-45. The Court has not subsequently addressed the issue. Thus, as of now, this court's decision in Fleuhr represents the governing law on this issue.