NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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

2 A-4854-12T2 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

3 A-4854-12T2 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

5 A-4854-12T2 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,

(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,

(2012) (citing Brill v.

Guardian Life Ins. Co. of Am.,

(1995)). We

review questions of law de novo, State v. Gandhi,

(2010), and need not accept the trial court's conclusions of

law. Davis v. Devereux Found.,

(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,

(1980). "Under the Act,

immunity is the norm, unless liability is provided for by the

Act." Davenport v. Borough of Closter,

(App. Div. 1996). The public entity bears the burden of proof

for establishing immunity. Bligen v. Jersey City Hous. Auth.,

(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,

(1993) (quoting Weiss v. N.J. Transit,

(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.,

, 533-

34 (1987) (quoting Birchwood Lakes Colony Club, Inc. v. Borough

of Medford Lakes,

(1982)). However, the public

entity need not show that a particular feature of the plan had

been considered and rejected.

;

see Manna v. State,

(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,

(App. Div.), certif. denied,

(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.,

(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.,

(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,

(2012) (citing State

v. Shelley,

(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."

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

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."

. "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."

(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,

(2012);

; see also Kolitch v.

Lindedahl,

(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.,

(App. Div.) (immunity

preserved where timing of duly approved traffic signals became

dangerous over time), certif. denied,

(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.,

(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

14 A-4854-12T2 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,

(1994) (quoting

). 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."

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;

; see also

-

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,

(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,

(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.,

(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.,

(2005) (quoting Hamel v.

State,

(App. Div. 1999)).

A

Gloucester City Sail is incorporated as a nonprofit

organization, a tax exempt entity under

(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

17 A-4854-12T2 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,

(2003) (quoting Anasiewicz v. Sacred Heart Church,

(App. Div.), certif. denied,

(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,

(App.

Div. 2004). In

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.

[

(quoting Gray v. St. Cecilia's Sch.,

(App. Div. 1987)).]

See also Orzech v. Fairleigh Dickinson Univ.,

(App. Div. 2009), certif. denied,

(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,

18 A-4854-12T2 supra,

. 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,

(2001). We have also found that beneficiary

status applies to a spectator at a Little League game, see

Pomeroy v. Little League Baseball,

(App. Div. 1976), and a wedding guest at a church,

. 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,

(App.

Div. 1996), aff'd o.b.,

(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,

(quoting

). 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,

, 457 n.6 (App. Div.

2009), aff’d,

(2010), and is used to describe "the

upper reaches of negligent conduct." Parks v. Pep Boys,

, 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