SENATE, No. 488

STATE OF NEW JERSEY

INTRODUCED JANUARY 22, 1996

By Senator CIESLA

An Act concerning public beaches and boardwalks and amending and supplementing various sections of the "New Jersey Tort Claims Act," P.L.1972, c.45.

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

    1. N.J.S.59:2-3 is amended to read as follows:

    59:2-3. Discretionary activities.

    a. A public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity;

    b. A public entity is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;

    c. A public entity is not liable for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;

    d. 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. Nothing in this section shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions.

    e. As used in this act, "the exercise of judgment or discretion" includes any decision to open, or to close to the public, any public beach.

(cf: P.L.1972, c.45, s.59:2-3)

    2. N.J.S.59:4-2 is amended to read as follows:

    59:4-2. Liability generally.

    [A] a. Except as provided in subsection b. of this section, 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 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.

    b. A public entity is not liable for injury caused by a condition of a boardwalk if, at the time the injury was received, the public entity can demonstrate that it was operating under an ongoing maintenance plan calling for periodic review and repair of the boardwalk.

(cf: P.L.1972, c.45, s.59:4-2)

    3. N.J.S.59:4-8 is amended to read as follows:

    N.J.S.59:4-8. Condition of unimproved public property--immunity.

    Neither 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.

    As used in this section, "unimproved public property" includes any public beach, regardless of whether a jetty, pier or other similar structure has been constructed.

(cf: P.L.1972, c.45, s.59:4-8)

    4. (New section) Neither a public entity nor a public employee is liable for an injury arising out of any act of commission or omission by a person serving as a lifeguard in the course of rendering lifeguard services.

    5. This act shall take effect immediately.

STATEMENT

    This bill would provide immunity to public entities for injuries occurring on public beaches. Currently, under the provisions of the Tort Claims Act (N.J.S.A.59:1-1 et seq.), public entities are immune from injury "caused by a condition of any unimproved public property, including but not limited to any natural condition of any . . . beach." However, despite this language, in many cases municipalities still have been forced to pay large amounts of money in damages for claims by swimmers injured in the ocean. The bill would clarify and strengthen the language of the Tort Claims Act in this regard, providing that public entities are immune for these accidents regardless of the circumstances under which they occur.

    Public entities have also incurred large costs in defending lawsuits by persons injured while walking on municipal boardwalks. Under the bill, a public entity would be immune from such suit if it can demonstrate that it complied with an ongoing maintenance plan to periodically review and repair the boardwalk.

Strengthens public entities' immunity for damages against claims of injury occurring on public beaches and boardwalks.