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We are now in the throes of another sultry summer. The time is ripe for recreational excursions to the local swimming pool, lake or ocean beach. Swimming is one of life’s greatest pleasures; its therapeutic and cardiovascular benefits are unparalleled. However, the sport of swimming is equally wrought with danger, uncertainty and serious risks which expose owners and operators to substantial liability. The most effective mechanism to mitigate that risk exposure is employment of certified lifeguards. An experienced lifeguard will be at a victim’s side before the victim utters his first cry for help. Anticipation and prevention, backed up by knowledge and experience, are the key ingredients for success in water safety. Fortunately, swimming accidents occurring while lifeguards are on duty are extremely rare. It is better to stay out of the water and stay alive, than assume the inordinate risk of swimming without a lifeguard present. This admonition must be underscored where ocean swimming is involved. The New Jersey courts have treated swimming pool and ocean beach premises liability in a disparate fashion. Homeowner liability for private pool drownings has engendered considerable litigation dating back to the 1930s. The courts have carved out different rules for private homeowners and public recreational facilities. The Court of Errors & Appeals first grappled with the question of pool owner liability in Lipton v. Dreamland Park Co., 121 N.J.L. 554 (E.&A. 1939). Lipton involved an 8-year-old boy who drowned in a paid amusement park pool while the lifeguards on duty were relaxing on a raft and talking to girls instead of watching bathers from their observation tower. The court reversed the lower court’s dismissal and found the commercial property owner defendant was under a duty to employ reasonable care for safeguarding its patrons in their use of the pool. The case was remanded for a jury trial. In another pool drowning case, Raponotti v. Burnt-Mill Arms, Inc., 113 N.J. Super. 173 (App. Div. 1971), the decedent was a guest of a tenant who lived in defendant’s apartment complex, which provided a swimming pool for the use of tenants and their guests. Plaintiff was a guest during a party given by a tenant, and an autopsy revealed a .15 percent blood alcohol content. Defendant was charged with negligence in operation of the pool in failing to provide a lifeguard or equipment for lifesaving and resuscitation. Id. at 176-78. The jury found that defendant was not negligent for failing to provide a lifeguard and the Appellate Division reversed for a new trial. The court held that the jury should have been charged that defendant’s operation of a swimming pool fell within the purview of N.J.S.A. 26:4A-1, which required persons operating swimming “pool[s] or place[s], directly or indirectly, for profit” must provide “adequate trained personnel and proper appliances for life-saving and resuscitation at all times when the pool or place is open to the public.” The court reasoned that since the defendant charged rent to its tenants that included use of the pool, the “Swimming Pool Code” statute was to be interpreted broadly, even though no separate fee was charged for patrons. The court ruled that the statute only exempted swimming pools or places maintained for use by a family and its guests. Id. at 179-80. See also, Hall Harbor Association v. Cape May County Dept. of Health, 196 N.J. Super. 533 (Law Div. 1984) (condominium association’s pool used by its members subject to pool statute absent separate charge “for profit” made for use of pool). The New Jersey Supreme Court revisited the duty of social hosts to warn guests of dangerous conditions within the context of a swimming pool accident in Tighe v. Peterson, 175 N.J. 240 (2002). Tighe involved a social guest’s personal injury claim against defendant homeowner arising out of a diving accident in the shallow part of the pool. The court observed that trial courts must employ a fact-sensitive analysis to determine whether a host has satisfied his or her duty to warn a particular guest. The court found that defendants did not have to warn their brother-in-law plaintiff about the configuration of the pool’s depth. Evidence showed that plaintiff was well aware of the deep ends in the pool due to swimming there on prior occasions. The Supreme Court affirmed granting summary judgment to defendant homeowners, and ruled no duty to warn existed. Id. at 242. The excursion from chlorine to salt water poses a more stringent standard for plaintiffs’ recovery. Unfortunately, accidental drownings, surf injuries and even suicide attempts present daily challenges in an ocean beach scenario. Many drowning victims suddenly embrace the daunting challenge of ignoring lifeguards’ directions while attempting to swim to Ireland, typically fueled by alcohol or illegal drug consumption. Dangerous rip currents, unpredictable sand bars, and crashing waves, known as “beach break,” all contribute to an inherently risk-laden situation for the uninitiated bather. The Atlantic City Beach Patrol was sued by plaintiff patron in Burroughs v. City of Atlantic City, 234 N.J. Super. 208 (App. Div. 1989), resulting from plaintiff’s decision to dive off the boardwalk into the Atlantic Ocean. Plaintiff argued that defendant and its lifeguards were aware of prior incidents where people would dive from the boardwalk into the water, despite posting of signs prohibiting such conduct. Plaintiff denied seeing any signs and admitted diving from the boardwalk in the past. Plaintiff hit his head on the ocean bottom, broke his neck, and was rendered a permanent quadriplegic. The testimony of the lifeguards was that people in plaintiff’s group were drinking and smoking marijuana in an unprotected area of beach, and they warned people from swimming in that part of the beach. The court upheld dismissal of the complaint by the motion judge based on the lack of a “dangerous condition” articulated in the Tort Claims Act, N.J.S.A. 59:4-1, because the city had posted proper warnings and instructed lifeguards to stop any unauthorized diving that was observed. The court also held that the failure of defendant to provide ocean lifeguards on a permanent basis would not subject a public entity to liability. Id. at 221-22. The most recent case which garnered considerable media attention was Fluehr v. City of Cape May, 159 N.J. 532 (1999), where a surfer sued Cape May for a broken neck sustained while surfing large waves created by Hurricane Emily. Plaintiff alleged negligent supervision, failure of the lifeguards to warn of the dangerous conditions posed by the ocean, and failure to protect him from those hazards. The trial court dismissed the complaint under Tort Claims Act scrutiny, finding that Cape May was protected by the “unimproved property” immunity in the act. However, the Appellate Division reversed and reinstated the complaint, holding that the unimproved property immunity did not override liability for negligent supervision of a public beach. Amici curiae Surfers’ Environmental Alliance and Surfrider Foundation argued that the Appellate Division’s decision was based on the fiction that a lifeguard could have taken action to prevent plaintiff’s injury, and even the most vigilant lifeguards are not guarantors of the safety of those who venture into the ocean. Id. at 538. Amicus curiae Ocean County Joint Insurance Fund also contended that municipalities would be forced to remove lifeguards from the beach to avoid liability, thereby adversely affecting those people who prefer to bathe while protected by lifeguards. The Supreme Court reversed, and ruled that a reasonable jury could find only that plaintiff’s accident was caused by the waves and that any negligence by the lifeguards was not a proximate cause of plaintiff’s accident. Id. at 544-45. The court’s decision kept the flood gates of litigation closed and insulated beach communities from escalating insurance costs necessary to underwrite this very substantial risk. See also, Stempkowski v. Borough of Manasquan, 208 N.J. Super. 328 (App. Div. 1986) (no liability found under Tort Claims Act where plaintiff was injured while attempting to rescue her children who were swimming at defendant’s beach and knocked down by a wave). The sum and substance of swimming accident liability warrants a fact-sensitive analysis by the court. Plaintiffs have a difficult burden to show that a private pool owner or beach municipality was negligent for drownings or injuries arising out swimming accidents. Summary judgment is the proper defense response to lawsuits targeting owners and operators of swimming facilities. Entities which charge a fee, directly or indirectly, must provide qualified lifeguards to protect its business invitees from the inherent dangers presented by pools, lakes and beaches. Lifeguards know that no man can perform a more honorable deed than saving the life of a fellow human being. The next time you glance up at the young man on the lifeguard stand, try to remember that he is a great deal more than sun-bronzed muscle and bone. Never swim in unprotected areas. The most prudent advice is stay out and stay alive whenever no lifeguards are on duty. Mario C. Colitti has worked as a professional ocean lifeguard in California and New Jersey since 1982. He is a certified civil trial attorney with Sherman & Viscomi of Somerset, N.J., concentrating on insurance defense.

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