Filed: Dec. 26, 1995
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit 12-26-1995 Kowalsky v. Long Beach Twp., et al. Precedential or Non-Precedential: Docket 95-5067 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "Kowalsky v. Long Beach Twp., et al." (1995). 1995 Decisions. Paper 319. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/319 This decision is brought to you for free and open access by the Opini
Summary: Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit 12-26-1995 Kowalsky v. Long Beach Twp., et al. Precedential or Non-Precedential: Docket 95-5067 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "Kowalsky v. Long Beach Twp., et al." (1995). 1995 Decisions. Paper 319. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/319 This decision is brought to you for free and open access by the Opinio..
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Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
12-26-1995
Kowalsky v. Long Beach Twp., et al.
Precedential or Non-Precedential:
Docket 95-5067
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995
Recommended Citation
"Kowalsky v. Long Beach Twp., et al." (1995). 1995 Decisions. Paper 319.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/319
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 95-5067
___________
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
___________
No. 95-5078
___________
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,
1
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)
___________________
Argued September 12, 1995
Before: MANSMANN, SCIRICA and NYGAARD, Circuit Judges
(Filed December 26, l995)
JOHN A. MILLER, ESQUIRE (ARGUED)
RICHARD J. SEXTON, ESQUIRE
Kenney & Kearney
220 Lake Drive East
Woodland Fall Corporate Park, Suite 210
Cherry Hill, New Jersey 08034-0421
Attorneys for Appellant,
Roman Kowalsky
JOHN J. BARRY, ESQUIRE (ARGUED)
MADELINE E. COX, ESQUIRE
Barry & McMoran
One Newark Center, 18th Floor
Newark, New Jersey 07102
Attorneys for Appellants,
Gary S. Petrillo, Individually,
Lois Petrillo, Conservator of the Estate
and person of Gary S. Petrillo, and individually,
Jill S. Petrillo
MICHAEL J. McKENNA, ESQUIRE (ARGUED)
RONALD E. HOFFMAN, ESQUIRE
Hiering, Hoffman & Gannon
29 Hadley Avenue
P.O. Box 5258
Toms River, New Jersey 08754
2
Attorneys for Appellees
3
__________________
OPINION OF THE COURT
__________________
SCIRICA, Circuit Judge.
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.0 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.0 Although a lifeguard quickly reached
Kowalsky and summoned an ambulance, he had already suffered a
broken neck, resulting in permanent paralysis below the waist.
0
1. These cases were brought separately but decided by the same
district court, and were consolidated on appeal.
0
Kowalsky explained: "[a]s I rode the wave in, as I got towards
the beach another wave was receding. Between that wave and the
wave on top of me, it bent me over and pile d[r]ived my head into
the beach." Brief for Appellant at 7.
4
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.
§59:1-1 et seq. (West 1992 & 1995 Supp.). The district court
granted summary judgment to all defendants.0
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
0
3. Under Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment may be granted when the pleadings, answers and
supporting material show there is no genuine issue as to any
material fact, and the moving party is entitled to judgment as a
matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Our review of a district court's grant of summary
judgment is plenary. See Lundy v. Adamar of New Jersey, Inc.,
34
F.3d 1173, 1177 (3d Cir. 1994).
5
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
6
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 immunity inapplicable. In the
alternative, they contend that N.J.S.A. 59:4-8 does not bar their
claims for negligent supervision and failure to warn.
In adjudicating a case under state law, we must predict
how the highest court of that state would decide the relevant
legal issues. See Packard v. Provident Nat'l Bank, 994 F.2d
1039, 1049 (3d Cir.), cert. denied,
114 S. Ct. 440 (1993). Our
review of the district court's determination of state law is de
novo. Salve Regina College v. Russell,
499 U.S. 225, 231 (1991);
see also Acierno v. Cloutier,
40 F.3d 597, 609-10 (3d Cir. 1994)
(in banc). Consequently, we turn to the Tort Claims Act as well
as New Jersey case law to evaluate the claims raised in this
appeal.
III.
The New Jersey Tort Claims Act sets forth the
parameters of immunity for government officials and government
acts. The introductory section of the Act declares:
[We] ... recognize[] the inherently unfair
and inequitable results which occur in the
strict application of the traditional
doctrine of sovereign immunity. On the other
hand [we] ... recognize[] that while a
private entrepreneur may readily be held
liable for negligence within the chosen ambit
of his activity, the area within which
government has the power to act for the
public good is almost without limit and
therefore government should not have the duty
7
to do everything that might be done.
Consequently, it is hereby declared to be the
public policy of this State that public
entities shall only be liable for their
negligence within the limitations of this act
and in accordance with the fair and uniform
principles established herein. All of the
provisions of this act should be construed
with a view to carry out the above
legislative declaration.
N.J.S.A. 59:1-2.
As part of the Tort Claims Act, the New Jersey
Legislature promulgated N.J.S.A. 59:4-8, which provides:
[n]either a public entity nor a public
employee is liable for an injury caused by a
condition of any unimproved public property,
including but not limited to any natural
condition of any lake, stream, bay, river or
beach.
Both the comment to N.J.S.A. 59:4-8 and the New Jersey Supreme
Court make clear that "the term unimproved public property should
be liberally construed." Troth v. State, 566 A.2d 515, 518 (N.J.
1989); see also Comment to N.J.S.A. 59:4-8&9 ("it is intended ...
that the term unimproved public property should be liberally
construed"). Underlying these determinations is the New Jersey
Legislature's policy judgment that the public should be permitted
to use unimproved public property in its natural condition, but
under the cloak of immunity. Otherwise, the burdens and expenses
of putting such property in safe condition as well as the expense
of defending claims for injuries might cause public entities to
close these areas to public use altogether. See Troth, 566 A.2d
at 519-20; Report of the Attorney General's Task Force on
Sovereign Immunity (May 1972).
8
In its clearest statement of the standard guiding a
determination of whether property remains "unimproved" under
N.J.S.A. 59:4-8, the New Jersey Supreme Court explained "[p]ublic
property is no longer 'unimproved' when there has been
substantial physical modification of the property from its
natural state, and when the physical change creates hazards that
did not previously exist and that require management by the
public entity." Troth, 566 A.2d at 521.
A.
Our starting point for determining whether the
properties at issue here remain "unimproved" is to identify the
relevant properties. In Troth, the plaintiff's injury occurred
after falling over a spillway in a boat on Union Lake, which lies
at the southern tip of a wildlife-management area belonging to
New Jersey. The lake was created by a dam built in the
nineteenth century, which allows excess water to flow over a
spillway into an adjacent river. The plaintiff in Troth alleged
the conditions created by the dam and the spillway resulted in
water flow rates dangerous to boats, and that these conditions
caused the accident. The state contended the lake was unimproved
public property and therefore the state was immune from
liability. After concluding that public property can be partly
improved and partly unimproved, the Troth court found the dam and
spillway were "improved." Troth, 566 A.2d at 522. Because the
accident occurred in the spillway, which was improved property,
N.J.S.A. 59:4-8 immunity did not apply. Significantly for our
purposes, the New Jersey Supreme Court stated its finding would
9
not foreclose application of 59:4-8 immunity to the lake itself,
which remained unimproved property. Id. at 523.
The parties here do not identify the relevant
properties for purposes of assessing N.J.S.A. 59:4-8 immunity.
Nevertheless, it is our view that the beach, or more
particularly, the water (and beach below) in which each plaintiff
was swimming while injured is the relevant property. As Troth
illustrates, we should not look at the entire general area where
the injury occurred. Just as a dam and spillway may be
distinguished from an adjoining lake in some circumstances, in
these instances, the surf and sand below it where the accidents
took place should be distinguished from the entire coastline, the
beaches themselves, or structures on the beaches.
B.
To rebut defendants' assertion of immunity, Kowalsky
set out to prove that the property was improved.0 He submitted a
report prepared by an expert on beaches, which chronicled "beach
nourishment/modification" projects and the placement of
"permanent shore protection structures," such as stone jetties,
along the beaches of the region where the accident occurred. The
thrust of the report was that the beaches of the area "[did] not
constitute a natural system" and that the beach configuration on
0
In considering the application of N.J.S.A. 59:4-8 immunity,
under New Jersey case law, at trial "the burden is on ... [a]
public entity both to plead and prove its immunity under" the
Tort Claims Act. Kolitch v. Lindedahl, 497 A.2d 183, 189 (N.J.
1985); see also Bligen v. Jersey City Hous. Auth.,
619 A.2d 575
(N.J. 1993).
10
the day of Kowalsky's injury "would not have been possible
without substantial man-made modifications to the natural
system." Appellant's Appendix at 117.
Yet Kowalsky's expert presented no evidence about Spray
Beach specifically, let alone the site of the injury or the
immediate surrounding area. Furthermore, human modifications do
not necessarily result in "improved" property under N.J.S.A.
59:4-8. In Troth the New Jersey Supreme Court rejected the Law
Division's view that the Tort Claims Act only confers immunity
when an injury is caused by a natural condition of any unimproved
property. Troth, 566 A.2d at 520-21. In so doing, the court
made clear that finding something is artificial--not natural--
does not necessarily make the property improved.
Whether property is improved turns on whether there has
been a substantial physical modification from its natural state,
and whether the physical changes create a hazard that did not
previously exist and which requires management by the public
entity. Troth, 566 A.2d at 521. In addition, there must be a
causal link between the physical change to the property and the
injury.
Id. ("Obviously, in order for liability to be imposed on
the public entity there must be a causal connection between the
'improvement' and the alleged injury.").
Under the Troth standard, the property relevant to
Kowalsky's claim remained unimproved. First, there was no
evidence that the situs or immediate area of the accident was
modified, substantially or otherwise. Second, there was no
evidence that the modifications closest to the site of the
11
accident, such as the stone jetties built offshore at places
around Long Beach Island, constituted substantial physical
changes and created hazards that did not previously exist and
which warranted maintenance by municipal authorities. Finally,
there was no evidence of a causal relationship between any
purported changes to the surrounding area and the injury Kowalsky
suffered.
In sum, looking at all the evidence Kowalsky presented,
a reasonable jury could not find that his accident occurred on
property which is "improved" under N.J.S.A. 59:4-8. There is no
genuine issue of material fact in dispute. In different
circumstances other New Jersey courts have applied 59:4-8
immunity on summary judgment. See, e.g., Troth, 566 A.2d 515;
Bany v. Borough of Haworth,
632 A.2d 535 (N.J. Super. Ct. App.
Div. 1993), certification denied,
639 A.2d 301 (N.J. 1994)
(reversing trial court grant of immunity under N.J.S.A. 59:4-8,
finding tree causing injury upon falling from public tract of
land was a "condition of improved property"); Freitag v. Morris
County,
426 A.2d 75 (N.J. Super. Ct. App. Div. 1981) (clearing a
sledding hill once did not render it improved property). We
agree with the district court that the property here was
"unimproved," and that the immunity provision in N.J.S.A. 59:4-8
applies.
C.
In a similar effort to show the property where his
accident occurred was improved, Petrillo presented an expert's
view that "the beach at Surf City has been maintained by ongoing
12
coastal engineering efforts that have included beach nourishment
projects and the construction of groin structures." Appendix
Vol. II at 401. The expert also claimed that "coastal structures
induce water motions and beach characteristics that differ
substantially from those found on natural or undisturbed
beaches." Id.
But the expert did not offer any evidence of "water
motions" or "beach characteristics" at the site of the injury or
the immediate surrounding area. Furthermore, as we explained,
human modifications do not necessarily result in "improved"
property under N.J.S.A. 59:4-8. Like the district court we see
no evidence from which a reasonable jury could find that
Petrillo's accident occurred on property which is "improved."
There was no evidence that the situs or immediate area of the
accident was modified, substantially or otherwise. There was no
evidence of substantial physical changes, even in the surrounding
area, which created hazards that did not previously exist and
which warranted maintenance by municipal authorities. Nor was
there evidence of a causal relationship between any purported
changes to the surrounding area and Petrillo's injury. Because
there is no genuine issue of material fact that the property in
question is unimproved, N.J.S.A. 59:4-8 immunizes defendants from
these claims.0
0
N.J.S.A. 59:4-8 is identical to an immunity statute previously
adopted by California. See Cal. Gov. Code § 831.2 (West 1995).
Interpreting the identical provision, California courts have
found "[i]t is now generally well settled that human-altered
conditions, especially those that have existed for some years,
which merely duplicate models common to nature are still 'natural
13
D.
The tragic facts are that the injuries to Roman
Kowalsky and Gary Petrillo were caused by ocean waves--acts of
nature, which are a "natural" condition of unimproved public
property. As one New Jersey court explained in another case
involving a swimmer injured in the surf, "[t]here can be no
liability on the part of ... [a] municipality for injuries caused
exclusively by the action of the ocean." Stempkowski v. Borough
of Manasquan, 506 A.2d 5, 7-8 (N.J. Super. Ct. App. Div. 1986).
IV.
The question remains whether N.J.S.A. 59:4-8 immunity
precludes all causes of action arising from plaintiffs' injuries,
including causes of action for negligent supervision and failure
to warn.0 Kowalsky and Petrillo generally contend defendants
conditions' as a matter of law for the purposes of ... [§ 831.2
immunity]." Tessier v. City of Newport Beach, 268 Cal. Rptr.
233, 235 (Cal. Ct. App. 1990); see also Knight v. City of
Capitola,
6 Cal. Rptr. 2d 874, 879-80 (Cal. Ct. App. 1992).
0
In their complaints, Kowalsky and Petrillo each alleged
defendants were liable under a "dangerous condition" cause of
action. N.J.S.A. 59:4-2 provides:
A public entity is liable for injury caused
by a condition of its property if the
plaintiff establishes that the property was
in dangerous condition at the time of the
injury, that the injury was proximately
caused by the dangerous condition, that the
dangerous condition created a reasonably
foreseeable risk of the kind of injury which
was incurred, and that either:
a. a negligent or wrongful act or omission
of an employee of the public entity within
the scope of his employment created the
dangerous condition; or
b. a public entity had actual or
constructive notice of the dangerous
14
assumed responsibility for the safety of the beaches and were
aware the weather created dangerous surf conditions, but
nevertheless failed to take action to prevent their accidents.
They also argue that as a matter of law N.J.S.A. 59:3-11
abrogates any grant of immunity which might be conferred by
N.J.S.A. 59:4-8. We cannot agree. Section 3-11 provides:
[a] public employee is not liable for the
failure to provide supervision of public
recreational facilities. Nothing in this
section exonerates a public employee for
negligence in the supervision of a public
recreational facility. (emphasis added).
The second sentence of N.J.S.A. 59:3-11 neither creates
liability, nor provides defenses or immunities, for negligent
supervision. This is left to other statutory provisions like
N.J.S.A. 59:4-8, which provides immunity for both public entities
and public employees from claims arising from "injur[ies] caused
by a condition of any unimproved public property." It is well-
established that supervision, once undertaken, must be conducted
in a non-negligent manner. See Dudley v. Victor Lynn Lines,
condition under section 59:4-3 a sufficient
time prior to the injury to have taken
measures to protect against the dangerous
condition.
Nothing in this section shall be construed
to impose liability upon a public entity for
a dangerous condition of its public property
if the action the entity took to protect
against the condition or the failure to take
such action was not palpably unreasonable.
N.J.S.A. 59:4-2. On appeal Petrillo does not challenge the
district court's finding that his "dangerous condition" claim was
barred by N.J.S.A. 59:4-8. Brief for Appellant at 16. Similarly,
in his brief Kowalsky did not raise this issue on appeal.
15
Inc., 161 A.2d 479, 488 (N.J. 1960); see also Restatement
(Second) of Torts § 323 (discussing negligent performance after
undertaking to render services). But the express language of
N.J.S.A. 59:4-8 and the policy judgments underlying it
demonstrate that immunity may still apply in the face of
negligence. Once it has been determined that N.J.S.A. 59:4-8
immunity applies, the New Jersey Tort Claims Act makes clear that
"[a]ny liability of a public entity established by this act is
subject to any immunity of the public entity." N.J.S.A. 59:2-
1b.0
Significantly, our understanding of the relationship
between N.J.S.A. 59:3-11 and N.J.S.A. 59:4-8 is reinforced by the
view of the New Jersey Supreme Court that "[w]hen both liability
and immunity appear to exist, the latter trumps the former." Tice
v. Cramer, 627 A.2d 1090, 1095 (N.J. 1993) (setting out the
general principles of the Act and applying them to find that a
police officer enjoys absolute immunity under N.J.S.A. 59:5-
2b(2), absent willful misconduct, for injuries to bystander
arising from pursuit of fleeing vehicle); see also
id. at 1102
("Under no circumstances, however, may ... [liabilities of public
employees], whatever their origin, trump the immunities provided
for in the Act. Where inconsistent, the liabilities fall, the
immunities stand."). Any possible liability allowed under
N.J.S.A. 59:3-11 must be subordinate to immunity conferred by
0
The same principle, that liability is subordinate to immunity,
applies to public employees. N.J.S.A. 59:3-1b provides in part:
"[t]he liability of a public employee established by this act is
subject to any immunity of a public employee provided by law."
16
N.J.S.A. 59:4-8. To "rule otherwise would be to ignore what is
probably the clearest and most important command of the Act,
namely, that the immunities set forth in the Act prevail over any
liabilities, whether found in the Act or in preexisting law,
including statutes." Id. at 1103.
In addition, notwithstanding that the Tort Claims Act
is less sweeping in immunizing public employees than public
entities, see generally Chatman v. Hall, 608 A.2d 263 (N.J. 1992)
(discussing the differential treatment of public employees and
entities by the Act), N.J.S.A. 59:4-8 makes clear that public
entities and employees share the same immunity status with regard
to "unimproved" property.
In the face of these principles, plaintiffs' reliance
on certain New Jersey cases to support the view that N.J.S.A.
59:3-11 abrogates N.J.S.A. 59:4-8 is unwarranted. While New
Jersey courts have yet to address the specific question whether
negligent supervision claims survive application of N.J.S.A.
59:4-8 immunity, the decisions refraining from answering this
question on the basis of procedural and other grounds do not
constitute a holding that immunity is abrogated. See, e.g.,
Troth, 566 A.2d at 523 (deeming a negligent supervision claim
inappropriate for summary disposition because it "was not alleged
in the complaint and was only tangentially developed in the
abbreviated record" before the court); Stempkowski,
506 A.2d 5,
7-8 (1986) (holding that natural ocean action was not a
"dangerous condition" and therefore failing to reach the question
of how immunity claims are related to N.J.S.A. 59:3-11).
17
Plaintiffs cite certain language in Troth to support
their view that a negligent supervision claim is not barred by
N.J.S.A. 59:4-8 immunity, and that once a public entity assumes
supervision, it must be exercised with due care. The New Jersey
Supreme Court stated in Troth:
[t]he controlling principle is that a public
entity is not liable for the failure to
supervise, but only for negligent
supervision. Consequently, a public employee
does not lose immunity without some employee
conduct, no matter how minute, evidencing an
intent to supervise.
Troth, 566 A.2d at 523. But plaintiffs misinterpret the
significance of this statement. In Troth the accident occurred
in the dam's spillway which was "improved" property. The cited
language refers to a negligent supervision claim arising from an
injury sustained on "improved" property and therefore is
inapposite. Because the injuries here took place on "unimproved"
property, N.J.S.A. 59:4-8 immunity applies.0
0
Citing N.J.S.A. 59:2-2a, plaintiffs contend a public entity is
liable for an employee's negligent supervision.
A public entity is liable for injury
proximately caused by an act or omission of a
public employee within the scope of his
employment in the same manner and to the same
extent as a private individual under like
circumstances.
N.J.S.A. 59:2-2a. While a public entity can be liable for an
employee's negligence, N.J.S.A. 59:2-2a cannot abrogate N.J.S.A.
59:4-8 immunity. Section 59:2-2b provides: "[a] public entity is
not liable for an injury resulting from an act or omission of a
public employee where the public employee is not liable." If the
public employee defendants here are not liable, neither are the
municipalities.
18
We believe that the Tort Claims Act itself, coupled
with the guidance offered in Tice, make evident that a negligent
supervision claim of the character advanced here is also subject
to the statutory immunity conferred by N.J.S.A. 59:4-8.
V.
Finally, defendants maintain that they are immunized
from any liability in this case by N.J.S.A. 59:3-2 and 59:2-3,
which confer immunity to public entities for the exercise of
judgment or discretion under certain circumstances. Given our
disposition of the immunity claims presented here, we need not
examine this issue.
VI.
For the foregoing reasons we will affirm the district
court's grants of summary judgment in favor of all defendants.
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