Tort Claims Act Plan or Design Immunity Upheld Based Upon Plan of Other Public Body

By: Betsy G. Ramos, Esq.

Public entities are statutorily immune from bodily injury claims if they can prove that the injury was caused by the plan or design of public property which was approved by the governing body of the public entity. The Tort Claims Act also provides for plan and design immunity to public entities for these types of claims if “some other body” approves the plan or design. In Kain v. Gloucester City, 2014 N.J. Super. LEXIS (App. Div. July 21, 2014), the Appellate Division had to decide whether the Coast Guard falls within the term of  “some other body” under the statute.

Plaintiff Michael Kain was a parent/chaperone for his son’s Boy Scout troop when they participated in a free educational sail by the defendant Gloucester City Sail at the Gloucester City 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 into the schooner.

This pier had been purchased by the Coast Guard in the 1940s and renovated by it at that time. Due to the design of the renovations, there was an opening between the edges of the pier and the wooden bumpers. In 1991, the Coast Guard deeded the pier to Gloucester City.

The plaintiff sued Gloucester City based upon a premises liability claim. Summary judgment was granted to Gloucester City (“the City”) based upon the design or plan immunity of the Tort Claims Act (“the TCA”).

On appeal, the plaintiff argued that summary judgment was erroneously granted because, among other reasons, the TCA did not apply to the City because the pier was designed by the Coast Guard, which was not a public entity under the TCA. The Appellate Division, however, upheld the summary judgment order.

To utilize a design or plan immunity defense, the public entity must demonstrate that the condition that allegedly caused the injury was an approved feature of the plan or design. It was undisputed in this case that the Coast Guard considered the need for the pier to be a stable dock when it reconstructed the pier and the bulkhead. Thus, it was part of a design approved by the Coast Guard.

However, the plaintiff argued that the TCA immunity is limited to a public entity or public employee. The Appellate Division disagreed with this argument and noted that the statute does not so limit the approving authority. The TCA design immunity also extends to “some other body.”

The term “some other body” is not defined within the TCA. The Appellate Division found that this term referred to an alternative approving authority and was designed to apply to entities that do not fall within the definition of “public entity,” yet perform the type of governmental function covered by the design immunity. In this case, the appeals court held that the Coast Guard qualified as “some other body.”

The plaintiff next argued that, even if the immunity did apply to the Coast Guard as an approving authority, the City cannot “inherit” the design immunity from the Coast Guard and it was lost because the pier was designed for military use and the City repurposed it for civilian and recreational use. Again, the Appellate Division disagreed with the plaintiff’s argument.

Once effective, an immunity is perpetual. It cannot be lost if later knowledge shows a design or plan to be dangerous or later circumstances render it dangerous. Here, the court found that once the immunity attached , it remained unaltered by the later change in use.

This case points out the broad scope of the design or plan immunity defense under the TCA. Not only can the design or plan of the defendant public entity be considered, but if the design or plan was approved by another public entity or “some other body,” such design or plan may be used to immunize the defendant public entity from a premises liability claim.