SEA ISLE CITY — Seaside communities and their lifeguards aren’t liable when their lifesaving equipment breaks the legs of vacationing grandmothers.
Margaret Kelly learned that lesson on Dec. 15 when a state appeals court upheld a lower court decision to dismiss her lawsuit against Sea Isle City and its beach patrol.
According to court documents, on July 25, 2005 Kelly was enjoying a day at the beach with her husband and grandchildren.
After finding a spot near a lifeguard stand, Kelly waded into the surf with her four-year-old granddaughter. While standing in shallow water with her back to the beach, Kelly was struck in the back of her leg her legs by an unmanned rescue kayak, causing a fracture of her left tibia and fibula.
Two lifeguards testified that they were trained to keep their kayaks slightly behind and either to the left or right of their stands, which are to be kept at water’s edge. One of the lifeguards called the surf “very rough” at the time of the incident. He said a large wave had carried the kayak away and he was in the process of retrieving it when Kelly was hit.
Thomas Griffiths, a water safety expert who testified for Kelly, suggested that the kayak was misplaced on the beach.
“Good risk management principles would have dictated that the ocean kayaks either be removed from service on the beach or tethered to the lifeguard stations in some fashion,” he opined.
The trial judge, however, observed that moving the kayak further away from the surf or tethering it to the stand was contrary to its primary purpose of giving lifeguards “the instantaneous ability to attempt to save a life.”
Under New Jersey tort law, the city is a public entity and cannot be held liable “for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”
Kelly argued that the city should have been held accountable for using kayaks instead of surfboards or whaleboats for rescues. She also argued that the city should be held responsible for its employees’ actions in placing the kayak too close to the water’s edge.
Unfortunately for Kelly, tort law states that a “public entity (and its employees) 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.”
Court opinion held that “palpably unreasonable” behavior is “patently unacceptable under any circumstance” and if judged so a public entity should be considered “manifest and obvious that no prudent person would approve of its course of action or inaction.”
“Even when accepted as true, plaintiff’s (Kelly’s) version falls far short of demonstrating that the conduct of defendant or its employees was palpably unreasonable,” the appellate decision stated.
“We agree with the trial judge that defendant’s (Sea Isle City’s) employees acted appropriately in choosing not to keep the kayak further away from water’s edge or by not tethering it to the lifeguard stand,” the decision continued.
“And, even if we assume the lifeguards were negligent in allowing the kayak to remain too close to the action of the waves, such an ordinary act of negligence falls far short of the palpably unreasonable standard imposed by the Tort Claims Act.”
What should beachgoers take away from this court decision?
Swim at your own risk.
Lower Township – Who are these people that are obvious experts on trash cans and leaf pick-up? Maybe they don't have any trash to put out or leaves in their yard!!
