Michael C. Kain v. Gloucester City , 436 N.J. Super. 466 ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4854-12T2
MICHAEL C. KAIN,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
July 21, 2014
v.
APPELLATE DIVISION
GLOUCESTER CITY, GLOUCESTER
CITY SAIL, INC., ROBERT BEVAN,
and CHARLES REED, jointly,
severally, individually and
in the alternative,
Defendants-Respondents.
________________________________________________________________
Argued March 18, 2014 – Decided July 21, 2014
Before Judges Fisher, Espinosa and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-
5091-10.
Kenneth G. Andres, Jr., argued the cause for
appellant (Andres & Berger, P.C., attorneys;
Mr. Andres and Tommie Ann Gibney, of
counsel; Abraham Tran, on the briefs).
Francis X. Donnelly argued the cause for
respondents Gloucester City and Robert Bevan
(Mayfield, Turner, O'Mara & Donnelly, P.C.,
attorneys; Mr. Donnelly, of counsel; Robert
J. Gillispie, Jr., on the brief).
James W. Carbin argued the cause for
respondents Gloucester City Sail, Inc. and
Charles Reed (Duane Morris LLP, attorneys;
Mr. Carbin, of counsel and on the brief).
The opinion of the court was delivered by
ESPINOSA, J.A.D.
The plan or design immunity provision of the Tort Claims
Act (TCA), N.J.S.A. 59:1-1 to :12-3, applies to injuries caused
by "the plan or design of public property" approved "by the
Legislature or the governing body of a public entity or some
other body or a public employee exercising discretionary
authority to give such approval . . . ." N.J.S.A. 59:4-6(a)
(emphasis added). This case requires us to decide whether this
provision exempts municipal defendants from liability for an
allegedly dangerous condition in a pier designed by the Coast
Guard and, specifically, whether the Coast Guard falls within
the scope of the term, "some other body," under the statute. We
decide that it does.
Plaintiff Michael Kain was a parent/chaperone for his sons'
Boy Scout troop when they participated in a free educational
sail provided by defendant Gloucester City Sail, Inc.
(Gloucester City Sail) at the Gloucester City Pier a/k/a Freeman
Pier (the pier). Plaintiff was injured when he stepped into an
opening between the edge of the pier and its wooden bumpers as
he was helping the last boy onto the "Northwind" schooner. He
appeals from orders that granted the summary judgment motions of
defendants on the grounds that his claims were barred by the TCA
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and the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11. We
affirm.
The Coast Guard purchased the pier in the 1940s and
renovated it by installing a bulkhead, consisting of 5/8" thick
interlocking steel sheathing, around the outside perimeter of
the pier. Wood timbers were installed as fenders to protect the
sides of ships from banging against the steel sheathing. The
resulting design left openings between the edges of the pier and
the wooden bumpers every few feet along the perimeter of the
pier. The Coast Guard operated the pier as a military base
until 1991, when it deeded the pier to Gloucester City (the
City).
In 2008, the City purchased the "Northwind" schooner, which
was to be operated by Gloucester City Sail, a nonprofit
corporation created for the purpose of providing maritime
education to children. Defendant Charles Reed was the director
of operations at Gloucester City Sail and captain of the
Northwind. Defendant Robert Bevan, an aide to the mayor of the
City, is a member of the board of directors of Gloucester City
Sail.
The Northwind is docked at one of two locations depending
upon tidal conditions. During high tide, it is docked at a
floating dock installed by the City to facilitate the safe
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boarding of boat passengers. However, at the time of the Boy
Scout sail, it was low tide and so the Northwind was docked at
the northeast corner of the pier. At this location, passengers
board the schooner by a ladder from the side of the pier.
Both plaintiff and his wife were parents/chaperones for the
free educational sail and two of their sons participated.
Before they boarded, Reed gave a safety talk and advised the Boy
Scout party that he would escort them individually across the
pier and assist them in boarding via the ladder. Reed did not
warn about the openings over the edge because he "felt no need
to verbally say that" as they were obvious to observe. He
guided the Boy Scout group, including plaintiff, past the pier's
barricades and a safety fence with a "Keep Out Dangerous Pier
Conditions" sign. Then, Reed stood on the pier at the top of
the ladder while two crew members were positioned on the vessel
at the bottom of the ladder to assist each of the passengers
onto the schooner.
Reed helped six of the seven Boy Scouts down the ladder to
the Northwind. When the last Boy Scout was being assisted onto
the ladder by Reed, plaintiff was still on the pier. Reed had
both of his hands on the child's hands. The other two crew
members were holding the ladder on the deck of the boat waiting
for the child to climb down. Then, without any instruction or
4 A-4854-12T2
invitation, plaintiff approached Reed from behind to help.
Plaintiff's left leg went off the edge of the pier and down into
an 11" x 23" opening between the edge of the pier and the wooden
fenders attached to the pier. Plaintiff sustained injuries,
which included a severe fracture of his right ankle that
required multiple surgeries.
Plaintiff filed a complaint based on premises liability
against all defendants. Summary judgment was granted to
defendants Gloucester City and Bevan on the ground that the
claim was barred by the "design or plan" immunity provided by
the TCA. Plaintiff's claims against defendants Gloucester City
Sail and Reed were dismissed as barred by the Charitable
Immunity Act.
In this appeal, plaintiff argues that summary judgment was
erroneously granted to all defendants. He argues that the
design and plan immunity afforded by the TCA did not apply to
the City and Bevan (collectively, the municipal defendants)
because: the pier was designed by the Coast Guard, which is not
a "public entity" under the TCA; the Coast Guard's design did
not consider the use of the pier by civilian pedestrians for
recreational purposes; defendants instituted a new plan or
design but failed to abide by their own plans; and defendants
knew the pier was in a dangerous condition but failed to provide
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appropriate warnings. He argues further that it was error to
grant summary judgment based on design immunity because the City
and Bevan failed to properly supervise the actions of Gloucester
City Sail and Reed in the boarding of the Northwind. Plaintiff
argues that the trial court erred in ruling that Gloucester City
Sail and Reed were entitled to immunity under the Charitable
Immunity Act because he was not a "beneficiary" of their
charitable works and because Reed's actions were grossly
negligent. Finally, plaintiff contends that summary judgment
was improper because there were genuine issues of material fact
as to defendants' liability.
In reviewing a summary judgment decision, we apply the same
standard as the trial court. Murray v. Plainfield Rescue Squad,
210 N.J. 581, 584 (2012). Viewing the evidence "in a light most
favorable to the non-moving party," we determine "if there is a
genuine issue as to any material fact or whether the moving
party is entitled to judgment as a matter of law." Rowe v.
Mazel Thirty, LLC, 209 N.J. 35, 38, 41 (2012) (citing Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)). We
review questions of law de novo, State v. Gandhi, 201 N.J. 161,
176 (2010), and need not accept the trial court's conclusions of
law. Davis v. Devereux Found., 209 N.J. 269, 286 (2012).
6 A-4854-12T2
I
The TCA provides general immunity for all governmental
bodies except in circumstances where the Legislature has
specifically provided for liability. See N.J.S.A. 59:1-2 and
:2-1; Bell v. Bell, 83 N.J. 417, 423 (1980). "Under the Act,
immunity is the norm, unless liability is provided for by the
Act." Davenport v. Borough of Closter, 294 N.J. Super. 635, 637
(App. Div. 1996). The public entity bears the burden of proof
for establishing immunity. Bligen v. Jersey City Hous. Auth.,
131 N.J. 124, 128 (1993). In determining if a public entity is
immune, courts first "identify the culpable cause of the
accident and . . . ask if that 'identified cause or condition is
one that the Legislature intended to immunize.'" Levin v. Cnty.
of Salem, 133 N.J. 35, 43 (1993) (quoting Weiss v. N.J. Transit,
128 N.J. 376, 380 (1992)).
Plaintiff alleges that the holes between the edge of the
pier and the wooden fenders attached to the pier constituted a
dangerous condition known to defendants and unremediated by
adequate warnings. Under the TCA, a "dangerous condition" is
that which "creates a substantial risk of injury when such
property is used with due care in a manner in which it is
reasonably foreseeable that it will be used." N.J.S.A. 59:4-
7 A-4854-12T2
1(a). Liability is permitted for an injury caused by a
dangerous condition of a public entity's 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.
[N.J.S.A. 59:4-2.]
The municipal defendants state they are entitled to the
plan or design immunity provided by the TCA for a claim based
upon this alleged defect. N.J.S.A. 59:4-6(a) states in
pertinent part:
a. Neither the public entity nor a public
employee is liable under this chapter for an
injury caused by the plan or design of
public property, either in its original
construction or any improvement thereto,
where such plan or design has been approved
in advance of the construction or
improvement by the Legislature or the
governing body of a public entity or some
other body or a public employee exercising
discretionary authority to give such
approval or where such plan or design is
8 A-4854-12T2
prepared in conformity with standards
previously so approved.
In order for the municipal defendants to avail themselves
of this immunity, they must demonstrate that the condition that
allegedly caused the injury was "an approved feature of the plan
or design." Thompson v. Newark Hous. Auth., 108 N.J. 525, 533-
34 (1987) (quoting Birchwood Lakes Colony Club, Inc. v. Borough
of Medford Lakes, 90 N.J. 582, 599 (1982)). However, the public
entity need not show that a particular feature of the plan had
been considered and rejected. Thompson, supra, 108 N.J. at 537;
see Manna v. State, 129 N.J. 341, 358 (1992) ("[I]mmunity for an
original design does not fail because alternative options
regarding the feature of concern . . . were not considered in
the original plans."). Instead, the evidence must show merely
that the entity had considered "the general condition about
which a plaintiff complains in formulating the original plan or
design." Luczak v. Twp. of Evesham, 311 N.J. Super. 103, 109
(App. Div.), certif. denied, 156 N.J. 407 (1998).
It is undisputed that the Coast Guard considered the need
for the pier to be a "stable" working dock when it reconstructed
the pier and designed the steel sheet pile bulkhead accordingly.
This design was a "routine" Coast Guard design, and when the
design was approved, the safety of workers who would walk along
the sidewalks was considered. Although it was not designed
9 A-4854-12T2
explicitly for use by civilian pedestrians, the pier was
designed to be safe for persons boarding and disembarking from
boats.
A
Plaintiff does not dispute that the alleged defect was part
of a design approved by the Coast Guard. He argues, however,
that immunity does not attach because the Coast Guard is not a
"public entity" as defined in the TCA.
Importantly, although the immunity provided by the TCA is
limited to a "public entity" or "public employee," the statute
does not limit the approving authority that triggers the
immunity to a "public entity" or "public employee." The TCA
provides for design immunity based upon prior approval by other
authorities as well, i.e., "the Legislature . . . or some other
body or a public employee exercising discretionary authority to
give such approval." N.J.S.A. 59:4-6(a) (emphasis added). As
"some other body" is undefined in the statute, we must interpret
that term to determine whether it applies to the Coast Guard
here.
Our "primary task" in interpreting this language is "to
effectuate the legislative intent in light of the language used
and the objects sought to be achieved." Bosland v. Warnock
Dodge, Inc., 197 N.J. 543, 554 (2009). To do so, "we look first
10 A-4854-12T2
to the plain language of the statute, seeking further guidance
only to the extent that the Legislature's intent cannot be
derived from the words that it has chosen." Pizzullo v. N.J.
Mfrs. Ins. Co., 196 N.J. 251, 264 (2008). The statute's
language is given its ordinary meaning and, if it is clear, "our
task is to apply that language to the situation that confronts
us." McGovern v. Rutgers, 211 N.J. 94, 108 (2012) (citing State
v. Shelley, 205 N.J. 320, 323 (2011)). If the language of the
statute fails to give such clear direction, "we look to
extrinsic sources, including the legislative history, to
determine the intent of the Legislature." Ibid. We are further
required to construe the TCA "with a view to carry out" the
Legislature's declaration "that public entities shall only be
liable for their negligence within the limitations of [the TCA]
and in accordance with the fair and uniform principles
established" in the Act. N.J.S.A. 59:1-2.
In the statute, "some other body" is an alternative
approving authority among the identified authorities that
include a "public entity," which is defined as "the State, and
any county, municipality, district, public authority, public
agency, and any other political subdivision or public body in
the State." N.J.S.A. 59:1-3. The term itself is broad and
almost unlimited in scope, clearly designed to apply to entities
11 A-4854-12T2
that do not fall within the definition of "public entity" yet
perform the type of governmental function covered by the design
immunity. The particular function targeted by this immunity
provision, the approval of plans or designs for public projects,
"is peculiarly a function of the executive or legislative branch
of government and is an example of the type of highly
discretionary governmental activity which the courts have
recognized should not be subject to the threat of tort
liability." See Report of the Attorney General's Task Force on
Sovereign Immunity, Comment to N.J.S.A. 59:4-6, at 222 (May,
1972) (Task Force Comment to N.J.S.A. 59:4-6). The
Legislature's use of the term "some other body" does not reflect
an intent to exclude a "body" that exercises authority over the
planning of public projects in the way the Coast Guard did here.
Although we refrain from concluding that the term has
unlimited application, such limitations as are appropriate
should be determined on a case-by-case basis. In this case, we
conclude that the application of "some other body" to the Coast
Guard is consistent with the objectives of the TCA and the
principle that this immunity provision should be broadly
applied. See ibid.
12 A-4854-12T2
B
Plaintiff argues further that, even if the Coast Guard is
considered an approving authority within the meaning of the TCA,
the municipal defendants cannot "inherit" design immunity from
the Coast Guard. They contend that design immunity was lost
because (1) the pier was designed for military use and
defendants have repurposed the pier for civilian and
recreational purposes, and (2) defendants added safety measures
to the pier but failed to adhere to the safety measures they
introduced. These arguments lack merit.
Plaintiff's arguments fail "because they improperly attempt
to circumvent the perpetual nature of plan-or-design immunity."
Manna, supra, 129 N.J. at 354. "Once effective, the immunity is
perpetual, and cannot be lost if later knowledge shows a design
or plan to be dangerous, or later circumstances render it
dangerous." Thompson, supra, 108 N.J. at 532 (quoting Margolis
and Novack, Tort Claims Against Public Entities 70 (1986)).
"That is, once the immunity attaches no subsequent event or
change of conditions shall render a public entity liable on the
theory that the existing plan or design of public property
constitutes a dangerous condition." Task Force Comment to
N.J.S.A. 59:4-6, supra, at 223. Immunity is preserved even if
the design presents a dangerous condition in light of a new
13 A-4854-12T2
context. Seals v. Cnty. of Morris, 210 N.J. 157, 180-81 (2012);
Thompson, supra, 108 N.J. at 532-33; see also Kolitch v.
Lindedahl, 100 N.J. 485, 497 (1985) (plan or design immunity
protected the State from claims where a curve in a road built
for a speed limit of thirty miles per hour became dangerous at a
speed limit of fifty miles per hour); Ciambrone v. State, Dep't
of Transp., 233 N.J. Super. 101, 108-09 (App. Div.) (immunity
preserved where timing of duly approved traffic signals became
dangerous over time), certif. denied, 117 N.J. 664 (1989).
Here, immunity attached to the alleged design defect
approved by the Coast Guard. That alleged defect remained
unaltered by the additional measures introduced by the municipal
defendants and unaffected by changes in the class of users from
military to civilian or the fact that the pier was used for
recreational purposes. The immunity was not, therefore, lost.
Moreover, design immunity bars plaintiff's claims that the
municipal defendants are liable based upon other theories that
relate to the alleged design defect. In Rochinsky v. State,
Dep't of Transp., 110 N.J. 399, 407-09 (1988), the Supreme Court
articulated the proper relationship between the liability and
immunity provisions of the TCA:
The first substantive section of the Act
establishes the analytical framework to be
used in resolving questions of governmental
immunity: "Except as otherwise provided by
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this act, a public entity is not liable for
an injury . . . ." N.J.S.A. 59:2-1(a).
Further, "[a]ny liability of a public entity
established by this act is subject to any
immunity of the public entity and is subject
to any defenses that would be available to
the public entity if it were a private
person." N.J.S.A. 59:2-1(b).
"[I]immunity is the dominant theme of the Act. . . . [When]
an immunity applies, liability does not attach." Civalier by
Civalier v. Estate of Trancucci, 138 N.J. 52, 59 (1994) (quoting
Weiss, supra, 128 N.J. at 383). Because N.J.S.A. 59:2-1(b) "is
intended to insure that any immunity provisions provided in the
act or by common law will prevail over the liability
provisions," Report of the Attorney General's Task Force on
Sovereign Immunity, Comment to N.J.S.A. 59:2-1, at 210 (May,
1972) (Task Force Comment to N.J.S.A. 59:2-1), "the approach
should be whether an immunity applies and if not, should
liability attach." Ibid.
Thus, even if plaintiff satisfies the elements of N.J.S.A.
59:4-2, the explicit grant of immunity for design or plan under
N.J.S.A. 59:4-6 "will prevail over the liability provisions."
Task Force Comment to N.J.S.A. 59:2-1, supra, at 210; Weiss,
supra, 128 N.J. at 382; see also Seals, supra, 210 N.J. at 161-
62 (observing that even if the plaintiff could satisfy all the
elements of N.J.S.A. 59:4-2, he could only pursue this claim if
his action was not barred by the plan or design immunity
15 A-4854-12T2
provision of N.J.S.A. 59:4-6); Gore v. Hepworth, 316 N.J. Super.
234, 245 (App. Div. 1998) (noting the general liability
provision of N.J.S.A. 59:4-2 is "limited by the specific
immunity sections"), certif. denied, 158 N.J. 70 (1999).
II
Plaintiff also argues that the trial court erred in ruling
that Gloucester City Sail and Reed are entitled to immunity
under the Charitable Immunity Act because (1) plaintiff was not
a "beneficiary" under the statute, and (2) Reed was grossly
negligent. N.J.S.A. 2A:53A-7 provides in pertinent part the
following:
a. No nonprofit corporation . . .
organized exclusively for . . . charitable
or educational purposes or its . . .
volunteers shall, except as is hereinafter
set forth, be liable to respond in damages
to any person who shall suffer damage from
the negligence of any agent or servant of
such corporation . . . where such person is
a beneficiary, to whatever degree, of the
works of such nonprofit corporation . . . ;
provided, however, that such immunity from
liability shall not extend to any person who
shall suffer damage from the negligence of
such corporation . . . or of its agents or
servants where such person is one
unconcerned in and unrelated to and outside
of the benefactions of such corporation
. . . .
The Legislature has declared that the Charitable Immunity
Act is remedial and should be "liberally construed so as to
afford immunity . . . in furtherance of the public policy for
16 A-4854-12T2
the protection of nonprofit corporations . . . organized for
religious, charitable, educational or hospital purposes."
N.J.S.A. 2A:53A-10.
Charitable immunity is an affirmative defense. Abdallah v.
Occupational Ctr. of Hudson Cnty., Inc., 351 N.J. Super. 280,
288 (App. Div. 2002). The entity that claims immunity under the
Charitable Immunity Act must demonstrate it "(1) was formed for
nonprofit purposes; (2) is organized exclusively for religious,
charitable or educational purposes; and (3) was promoting such
objectives and purposes at the time of the injury to plaintiff
who was then a beneficiary of the charitable works." Tonelli v.
Bd. of Educ., 185 N.J. 438, 444-45 (2005) (quoting Hamel v.
State, 321 N.J. Super. 67, 72 (App. Div. 1999)).
A
Gloucester City Sail is incorporated as a nonprofit
organization, a tax exempt entity under 26 U.S.C.A. § 501(c)(3),
for the purpose of providing maritime education. Plaintiff does
not dispute that Gloucester City Sail qualifies as a charitable
organization under the Charitable Immunity Act or that its
purposes include educational, cultural, or religious purposes.
Instead, he asserts he was not a "beneficiary" of its works.
The established test for determining whether
a party is a beneficiary of the works of a
charity has two prongs. The first is that
the institution pleading the immunity, at
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the time in question, "was engaged in the
performance of the charitable objectives it
was organized to advance." The second is
that the injured party must have been a
direct recipient of those good works.
[Ryan v. Holy Trinity Evangelical Lutheran
Church, 175 N.J. 333, 350 (2003) (quoting
Anasiewicz v. Sacred Heart Church, 74 N.J.
Super. 532, 536 (App. Div.), certif. denied,
38 N.J. 305 (1962)).]
Our inquiry here focuses on the second of these prongs,
which distinguishes between "persons benefiting from the
charity," and persons who contribute to the charity "by virtue
of their attendance or participation." Roberts v. Timber Birch-
Broadmoore Athletic Ass'n, 371 N.J. Super. 189, 195-96 (App.
Div. 2004). In Ryan, supra, the Court explained that the
statute calls for a broad definition of "beneficiary,"
as evidenced by the use of the words "to
whatever degree" modifying the word
"beneficiary" in the statute. Those who are
not beneficiaries must be "unconcerned in
and unrelated to" the benefactions of such
an organization.
[175 N.J. at 353 (quoting Gray v. St.
Cecilia's Sch., 217 N.J. Super. 492, 495
(App. Div. 1987)).]
See also Orzech v. Fairleigh Dickinson Univ., 411 N.J. Super.
198, 205 (App. Div. 2009), certif. denied, 201 N.J. 443 (2010).
When the injured party is a direct recipient of the
charity's good works "or accompanies a beneficiary to the
event," the charitable immunity defense is available. Roberts,
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supra, 371 N.J. Super. at 196. The Supreme Court found that a
child, who was injured in a charitable organization's gymnasium,
"was plainly a recipient" of the charity's "'benefactions,' even
if only as a companion of his father and a spectator at his
father's basketball game." Bieker v. Cmty. House of Moorestown,
169 N.J. 167, 180 (2001). We have also found that beneficiary
status applies to a spectator at a Little League game, see
Pomeroy v. Little League Baseball, 142 N.J. Super. 471, 475
(App. Div. 1976), and a wedding guest at a church, Anasiewicz,
supra, 74 N.J. Super. at 537-38. No immunity exists, however,
when the person who attends the charity's endeavor actually
confers a benefit to the charity rather than receives one.
DeVries v. Habitat for Humanity, 290 N.J. Super. 479, 492 (App.
Div. 1996), aff'd o.b., 147 N.J. 619 (1997).
In this case, although plaintiff was a volunteer, he was
present at the outing as a parent/chaperone for the Boy Scouts.
The benefit he conferred as a volunteer was to the Boy Scouts,
and not to the charity seeking immunity. In his capacity as
both a parent and a chaperone for the group receiving the
benefit of the educational sail, he cannot qualify as one
"'unconcerned in and unrelated to' the benefactions of"
Gloucester City Sail. Ryan, supra, 175 N.J. at 353 (quoting
Gray supra, 217 N.J. Super. at 495). Therefore, charitable
19 A-4854-12T2
immunity applied to both Gloucester City Sail and its volunteer,
Reed. N.J.S.A. 2A:53A-7(a) (charitable immunity applies to the
charity's "trustees, directors, officers, employees, agents,
servants or volunteers").
B
Plaintiff also argues that charitable immunity should not
apply here because Reed's actions were grossly negligent. This
argument also lacks merit.
N.J.S.A. 2A:53A-7(c)(1) provides that charitable immunity
does not apply to "any trustee, director, officer, employee,
agent, servant or volunteer causing damage by a willful, wanton
or grossly negligent act of commission or omission . . . ."
Although the statute does not define gross negligence, the term
is commonly associated with egregious conduct, see Stelluti v.
Casapenn Enters., LLC, 408 N.J. Super. 435, 457 n.6 (App. Div.
2009), aff’d, 203 N.J. 286 (2010), and is used to describe "the
upper reaches of negligent conduct." Parks v. Pep Boys, 282
N.J. Super. 1, 17 n.6 (App. Div. 1995).
Here, plaintiff argues that defendants' actions constitute
reckless and grossly negligent behavior because they required
civilian passengers to cross the pier with 11" x 23" openings
and use an aluminum household ladder to board the Northwind in
lieu of using the floating dock. In support, plaintiff refers
20 A-4854-12T2
to the opinion of Wayne F. Nolte, Ph.D., P.E., his safety
engineer expert, who opined that the "accident site was in a
dangerous and hazardous condition" and "was totally unsafe and
inappropriate for its intended use." Without identifying any
misconduct by Reed, Nolte opined that "[t]he failure of the City
of Gloucester City to comply with its own minimum standard
requiring the elimination of holes in walking surfaces was
palpably unreasonable and the cause of this accident."
As the trial court found, the alleged dangerous and
hazardous condition of the openings relate to the original
design of the pier, rather than a lack of care by Reed. We
further agree with the trial court that Reed "actively engaged
in the process of attempting to make this loading scenario
safe." The proof is, therefore, insufficient to establish a
level of wrongful conduct that would deprive Gloucester Sail and
Reed of the immunity.
To the extent we have not discussed any arguments raised by
plaintiff, we deem such arguments to lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
21 A-4854-12T2