Bilyeu v. Ocean City, 2006 U.S. App LEXIS 24881 (3rd Cir. Oct. 2, 2006).

Madeline Bush, 2L, Vermont Law School

On September 11, 1999, Jeffrey Bilyeu drowned off the coast of Ocean City, New Jersey’s 30th Street Beach. Danette Bilyeu, Jeffrey’s wife, brought claims against the city for the wrongful death of her husband. The Third Circuit Court of Appeals affirmed the district court’s grant of summary judgment in favor of the city, finding that it was immune from suit under the New Jersey Tort Claims Act (NJTCA).

Background
On the day of the accident, Jeffrey had been swimming in shallow waters with the Bilyeus’ son, Matthew, when a powerful rip current washed the child from shore. Jeffrey made an effort to save his son; however, Jeffrey became trapped in the strong current. Danette was able to pull Matthew from the dangerous waters, but was unable to reach her husband. No lifeguards were on duty, so by the time lifeguards from a nearby beach reached Jeffrey, he could not be resuscitated. Danette filed suit, alleging that Ocean City’s “negligent supervision” and “failure to warn” were the cause of her husband’s death.

Immunity from Suit
Prior to the Bilyeu family’s misfortune, Ocean City had implemented a beach nourishment program that dredged millions of cubic yards of sediment from the ocean and repositioned it closer to shore. The NJTCA gives immunity to public entities for “an injury caused by a condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.”1 Immunity from such suits is an essential protective measure not only for the public entity, but also for the general public. Besides the costs associated with defending claims arising from injury on unimproved property, establishing safe unimproved property would be far too demanding for a public entity to manage. Without the immunity claim, the public may not have access to unimproved public property like Ocean City’s 30th Street Beach.

In light of these policy considerations, the New Jersey Supreme Court liberally interprets the term “unimproved.” The court determined that a property is improved if it undergoes a “substantial physical modification from its natural state,” and if the physical modification creates a hazard that “did not previously exist and which requires management by the public entity.”2 The court concluded that if all of the facts supported that the beach is unimproved property, then the district court’s grant of summary judgment in favor of Ocean City should be upheld. If the facts alleged demonstrated that there is a “genuine issue of material fact,” then the district court erred in granting the summary judgment.3

An oceanography expert testified that “Ocean City’s beach nourishment program substantially modified the natural state of the beach,” producing sandbars that are more favorable to rip current formation.4 The expert also reported that the “dangerous condition” of the rip current on the 30th Street Beach was a result of the nourishment program.5 However, he also testified that the sandbars resulting from the nourishment program were “likely” present at the 30th Street Beach before it eroded.6

The court concluded that the beach qualified as unimproved property. First, the court noted that a natural condition physically modified to “duplicate models common to nature” is generally still found to be in its “natural condition” under NJTCA. The oceanography expert stated that sandbars are natural features of the beach that would be present before the nourishment program became effective. The court reasoned that the nourishment program is only duplicating a natural process and thus could not be a physical modification from its natural state. Further, even if a physical modification existed, the court found no evidence that the nourishment program created a hazard that was not already in existence at the 30th Street Beach. Hence, the risk was previously present. The expert testimony only offered the mere possibility the risk was not present, not a probability.

Conclusion
After examining the application of NJTCA to the wrongful death claim and holding that the property was “unimproved,” the court of appeals affirmed the district court’s decision to grant a summary judgment in favor of Ocean City.

Endnotes
1.Bilyeu v. Ocean City, 2006 U.S. App LEXIS 24881 at *5 (3rd Cir. Oct. 2, 2006).
2. Id. at *6-7 (citations omitted).
3. Id. at *3.
4. Id. at *8.
5. Id. at *9.
6. Id.