A3432

An Act concerning public beaches and boardwalks and amending and supplementing Title 59 of the New Jersey Statutes.

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: N.J.S.59:2-3)

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

59:4-2. Liability generally.

[A] Except as provided in subsection c. 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.

c. 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: N.J.S.59:4-2)

3. (New section) a. Neither a public entity nor a public employee is liable for an injury arising out of any act of commission or omission by persons providing public safety services in the course of providing such services to any public beach.

b. Public beaches are unimproved public property notwithstanding the provision or absence of public safety services, and regardless of whether a jetty, pier or other similar structure has been constructed.

As used in this section, “public safety services” include but are not limited to lifeguard services, police or sheriff patrols, medical services, fire protection services, beach cleanup services, or signs.

4. This act shall take effect immediately.

STATEMENT

This bill provides immunity to public entities for injuries occurring on public beaches. Currently, under the provisions of the "New Jersey Tort Claims Act," N.J.S.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, municipalities have still been forced into costly litigation relating to claims by swimmers injured in the ocean.

The bill strengthens the language of the “New Jersey Tort Claims Act” to provide public entities with immunity for these accidents regardless of the circumstances under which they occur. The bill codifies and broadens the protections given to municipalities in William Fleuhr v. City of Cape May, 159 N.J. 532 (1999) by insuring that public entities have immunity that covers acts of commission or omission by persons providing public safety services.

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 a suit if it can demonstrate that it was operating under an ongoing maintenance plan calling for periodically reviewing and repairing the boardwalk.