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Kowalsky v. Long Beach Tp.

December 26, 1995

ROMAN KOWALSKY, APPELLANT

v.

LONG BEACH TOWNSHIP; DEPARTMENT OF PUBLIC WORKS OF LONG BEACH TOWNSHIP; DEPARTMENT OF PUBLIC SAFETY OF LONG BEACH TOWNSHIP; LONG BEACH TOWNSHIP BEACH PATROL; LONG BEACH TOWNSHIP SPRAY BEACH PATROL; JOHN DOES, 1 THROUGH 5, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE; DONALD MEYERS; JON CAMP; SEAN ADAMS; PATTY O'HARA; MICHAEL GAETANO; DON WILLIAMS GARY S. PETRILLO, INDIVIDUALLY, LOIS PETRILLO, CONSERVATOR OF THE ESTATE AND PERSON OF GARY S. PETRILLO, AND INDIVIDUALLY, JILL S. PETRILLO, APPELLANTS

v.

BOROUGH OF SURF CITY, A MUNICIPALITY OF THE STATE OF NEW JERSEY, LEONARD T. CONNOR, MAYOR, JOHN DOES "A,B,C," JANE DOES "D,E,F," ELECTED AND APPOINTED OFFICIALS OF THE BOROUGH OF SURF CITY, THESE BEING FICTITIOUS NAMES, THEIR ACTUAL NAMES NOT KNOWN TO THE PLAINTIFFS, MARK OCCHIPINTI, PATRICIA D'AMBROSIO, FIN LEALIN, JOHN DOES "G,H,I," LIFEGUARDS, JANE DOES "J,K,L," LIFEGUARDS EMPLOYED BY THE BOROUGH OF SURF CITY, AND CORRECT NAME OF LEALIN AND THE ACTUAL NAMES OF THE FICTITIOUS JOHN DOES G,H,I AND JANE DOES J,K,L, NOT BEING KNOWN TO THE PLAINTIFFS AT THIS TIME, DEPARTMENT OF RECREATION OF SURF CITY, SURF CITY BEACH PATROL, DEPARTMENT OF PUBLIC WORKS OF SURF CITY, DEPARTMENT OF LAW & PUBLIC SAFETY OF SURF CITY



On Appeal from the United States District Court for the District of New Jersey

(D.C. Civil Action Nos. 92-cv-03194 & 92-cv-03602)

Before: MANSMANN, SCIRICA and NYGAARD, Circuit Judges

SCIRICA, Circuit Judge.

Argued September 12, 1995

Filed December 26, l995)

OPINION OF THE COURT

In these diversity suits, plaintiffs Roman Kowalsky and Gary Petrillo appeal the district court's grants of summary judgment on their claims for damages arising from tragic injuries suffered while they were swimming at New Jersey beaches. *fn1 Because we agree with the district court that under the New Jersey Tort Claims Act, defendants, municipal entities and municipal employees, are entitled to immunity from liability as a matter of law, we will affirm.

I.

A.

During mid-afternoon on September 2, 1990, Roman Kowalsky entered the ocean to go swimming at Spray Beach in Long Beach Township, New Jersey, an area protected at the time by municipal lifeguards. After swimming and "bodysurfing" in the water for twenty minutes, he decided to return to the beach. "Bodysurfing" to shore, he was caught between two waves and driven into the sand. *fn2 Although a lifeguard quickly reached Kowalsky and summoned an ambulance, he had already suffered a broken neck, resulting in permanent paralysis below the waist.

Although Kowalsky said that when he arrived at the beach the surf looked normal and no different from other visits, he contends the water conditions were hazardous, resulting from Hurricane Gustav, 1000-1200 miles offshore. He maintains that because of the hurricane, an unusually high number of rescues occurred over that Labor Day weekend. Both the lifeguard on duty and the beach supervisor testified the weather was sunny and dry, the surf normal for that time of year and there was no reason to close the beach or prohibit bodysurfing.

Kowalsky's amended complaint alleged that defendants, various municipal entities and certain municipal employees: (1) negligently supervised the beach; (2) failed to warn of a dangerous condition; and (3) failed to properly train beach patrol personnel. Defendants denied negligence and asserted immunity under the New Jersey Tort Claims Act. N.J. Stat. Ann. Section(s) 59:1-1 et seq. (West 1992 & 1995 Supp.). The district court granted summary judgment to all defendants. *fn3

B.

On a sunny afternoon on September 1, 1990, Gary Petrillo was swimming and "bodysurfing" in the ocean at the 12-14th Street Beach in Surf City, New Jersey. After forty minutes he became cold and decided to head ashore. While hip-deep in the water he was struck from behind by a wave that knocked him face first into the sand. Realizing he could not move, he remained lying on his back in the water. The attending lifeguard called for assistance and Petrillo was taken by ambulance and helicopter to a hospital. As a result of his injury Petrillo remains paralyzed from the neck down and has lost the power of speech.Petrillo contends that Hurricane Gustav, 1000-1200 miles offshore, had created turbulent water along the New Jersey coast, resulting in hazardous conditions. He maintains that despite knowing the danger, the beach patrol failed to warn the swimmers or close the beaches. Petrillo's complaint alleged that his accident was caused "jointly, severally or in the alternative by the negligence, recklessness and carelessness" of defendants, various municipal entities and employees of these entities. His mother, Lois Petrillo, and his sister, Jill Petrillo, alleged emotional distress stemming from the accident. Defendants denied negligence and asserted immunity under the New Jersey Tort Claims Act. The district court granted summary judgment to all defendants.

II.

The central issue presented by these appeals is the nature and scope of immunity conferred upon defendant municipal entities and municipal employees by New Jersey's Tort Claims Act, which governs damage claims against public entities and public employees. In particular dispute is N.J.S.A. 59:4-8, which confers immunity from liability for injuries caused by a condition of unimproved public property. Defendants assert they are entitled to immunity under this provision. Kowalsky and Petrillo maintain the public property at issue is "improved," making N.J.S.A. 59:4-8 ...


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