Article by Betsy G. Ramos

The plaintiff, Carol Leonard, on behalf of the Estate of her deceased son, Devine Nichols, sued the City of New Brunswick due to the accidental drowning death of her son in the Raritan River. Devine and his friend had been seen walking in the Raritan River in Boyd Park. The next day, the bodies of Devine and his friend were found in the river. In Leonard v. City of New Brunswick, 2017 N.J. Super. Unpub. LEXIS 2837 (App. Div. Nov. 14, 2017), plaintiff sought to hold the City liable based upon its ownership and operation of Boyd Park.

Eleven year old Devine was last seen at Boyd Park, walking in the middle of the Raritan River, during low tide. However, according to a witness who saw Devine and his friend, about 5 minutes later, it started to rain heavily.

The plaintiff, Carol Leonard (“Leonard”), sued the City, along with the County of Middlesex and the State, on the basis that the park created a dangerous condition in not restricting access to the river. Also, the plaintiff’s expert faulted the City for “failing to post warning signs concerning the dangers created by ‘tidal changes and resulting strong currents.’”

However, the City contended that it should be immune from liability under the Tort Claims Act pursuant to N.J.S.A. 59:4-8, which provides immunity to public entities from injuries caused by conditions on their unimproved public properties. While the plaintiff claimed that this defense would not apply because Boyd Park was an improved property, the City countered by arguing that it is immune from liability because Devine drowned in the Raritan River, which is unimproved.

Additionally, N.J.S.A. 59:4-9 provides immunity for injuries caused by the condition of unimproved portions of “submerged lands” and the “beds of navigable rivers.” The City argued that this defense was another basis upon which it should be immune.

The Appellate Division agreed with the City that the relevant property was not the park but, rather, was the river. The Court held that the Raritan River caused Devine’s death, which made it the relevant property for the Tort Claims Act analysis as to applicable defenses.

The plaintiff failed to show that the Raritan River was an improved property. The fact that Boyd Park has improved lands in part did not make the river an improved part of the property. Thus, the Appellate Division found it to be within the scope of the defense in N.J.S.A. 59:4-8. Additionally, the Court also held that the City was insulated from liability for a dangerous condition within “submerged lands,” as set forth in N.J.S.A. 59:4-9.

Hence, the Appellate Division upheld the trial court’s dismissal of this matter, finding that these Tort Claims Act defenses immunized the City of New Brunswick from tort liability for this accident.