A New Jersey state appeals court has affirmed a trial court’s finding that a municipality should not be held liable for a freak accident that occurred when a rescue kayak was swept away from its station by a rogue wave and struck and injured a beachgoer.
Margaret Kelly was standing in shallow water with her back to a beach that was designated for surfboard use when she was struck by a rescue kayak, which broke her leg. The kayak had been swept off the beach by a rogue wave. At the time, a lifeguard was wading into the surf to retrieve it.
Kelly sued Sea Isle City and Sea Isle City Beach Patrol. A trial court granted summary judgment to the defendants, spawning the appeal.
Upon review, the panel noted that the New Jersey State Board of Health, United States Lifeguarding Association and the South Jersey Lifeguard Chief’s Association all require the presence of lifesaving equipment, such as a kayak, on the beach.
The panel zeroed in on whether an untethered rescue kayak constituted an unreasonable risk for the circumstances. One of the weaknesses in the plaintiff’s claim was the principle that lifeguards should have “the instantaneous ability to attempt to save a life.”
That principle, which was a lynchpin in the lower court’s decision, also had the support of the panel, which found that the defendant’s employees “acted appropriately in choosing not to keep the kayak further away from water’s edge or by not tethering it to the lifeguard stand.
“And, even if we assume the lifeguards were negligent in allowing the kayak to remain too close to the action of the waves, such an ordinary act of negligence falls far short of the palpably unreasonable standard imposed by the Tort Claims Act.”
Kelly v. Sea Isle City and Sea Isle City Beach Patrol; App. Div. of the Superior Court of New Jersey; 36-2-6182; 12/14/09
