                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-26-1995

Kowalsky v. Long Beach Twp., et al.
Precedential or Non-Precedential:

Docket 95-5067




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           UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                     ___________

                     No. 95-5067
                     ___________


                   ROMAN KOWALSKY,
                               Appellant

                         v.

                  LONG BEACH TOWNSHIP;
  DEPARTMENT OF PUBLIC WORKS OF LONG BEACH TOWNSHIP;
 DEPARTMENT OF PUBLIC SAFETY OF LONG BEACH TOWNSHIP;
           LONG BEACH TOWNSHIP BEACH PATROL;
        LONG BEACH TOWNSHIP SPRAY BEACH PATROL;
            JOHN DOES, 1 THROUGH 5, JOINTLY,
           SEVERALLY AND IN THE ALTERNATIVE;
         DONALD MEYERS; JON CAMP; SEAN ADAMS;
     PATTY O'HARA; MICHAEL GAETANO; DON WILLIAMS

                     ___________

                     No. 95-5078
                     ___________


           GARY S. PETRILLO, Individually,
      LOIS PETRILLO, Conservator of the Estate
  and person of Gary S. Petrillo, and individually,
                  JILL S. PETRILLO,
                                Appellants
                          v.

                  BOROUGH OF SURF CITY,
       A Municipality of the State of New Jersey,
                LEONARD T. CONNOR, Mayor,
          JOHN DOES "A,B,C," JANE DOES "D,E,F,"
         Elected and Appointed Officials of the
 Borough of Surf City, these being fictitious names,
    their actual names not known to the plaintiffs,
  MARK OCCHIPINTI, PATRICIA D'AMBROSIO, FIN LEALIN,
  JOHN DOES "G,H,I," Lifeguards, JANE DOES "J,K,L,"
   Lifeguards employed by the Borough of Surf City,
    and correct name of Lealin and the actual names
of the fictitious John Does G,H,I and Jane Does J,K,L,
    not being known to the plaintiffs at this time,


                          1
             DEPARTMENT OF RECREATION OF SURF CITY,
                     SURF CITY BEACH PATROL,
            DEPARTMENT OF PUBLIC WORKS OF SURF CITY,
         DEPARTMENT OF LAW & PUBLIC SAFETY OF SURF CITY
         _______________________________________________

         On Appeal from the United States District Court
                 for the District of New Jersey
       (D.C. Civil Action Nos. 92-cv-03194 & 92-cv-03602)
                       ___________________


                    Argued September 12, 1995

     Before:   MANSMANN, SCIRICA and NYGAARD, Circuit Judges

                   (Filed   December 26, l995)


JOHN A. MILLER, ESQUIRE (ARGUED)
RICHARD J. SEXTON, ESQUIRE
Kenney & Kearney
220 Lake Drive East
Woodland Fall Corporate Park, Suite 210
Cherry Hill, New Jersey 08034-0421

Attorneys for Appellant,
  Roman Kowalsky


JOHN J. BARRY, ESQUIRE (ARGUED)
MADELINE E. COX, ESQUIRE
Barry & McMoran
One Newark Center, 18th Floor
Newark, New Jersey 07102

Attorneys for Appellants,
  Gary S. Petrillo, Individually,
  Lois Petrillo, Conservator of the Estate
  and person of Gary S. Petrillo, and individually,
  Jill S. Petrillo


MICHAEL J. McKENNA, ESQUIRE (ARGUED)
RONALD E. HOFFMAN, ESQUIRE
Hiering, Hoffman & Gannon
29 Hadley Avenue
P.O. Box 5258
Toms River, New Jersey 08754



                                  2
Attorneys for Appellees




                          3
                          __________________

                         OPINION OF THE COURT
                          __________________


SCIRICA, Circuit Judge.


          In these diversity suits, plaintiffs Roman Kowalsky and

Gary Petrillo appeal the district court's grants of summary

judgment on their claims for damages arising from tragic injuries

suffered while they were swimming at New Jersey beaches.0 Because

we agree with the district court that under the New Jersey Tort

Claims Act, defendants, municipal entities and municipal

employees, are entitled to immunity from liability as a matter of

law, we will affirm.

                                  I.

                                  A.

          During mid-afternoon on September 2, 1990, Roman

Kowalsky entered the ocean to go swimming at Spray Beach in Long

Beach Township, New Jersey, an area protected at the time by

municipal lifeguards.     After swimming and "bodysurfing" in the

water for twenty minutes, he decided to return to the beach.

"Bodysurfing" to shore, he was caught between two waves and

driven into the sand.0    Although a lifeguard quickly reached

Kowalsky and summoned an ambulance, he had already suffered a

broken neck, resulting in permanent paralysis below the waist.
0
  1. These cases were brought separately but decided by    the same
district court, and were consolidated on appeal.
0
  Kowalsky explained: "[a]s I rode the wave in, as I got   towards
the beach another wave was receding. Between that wave     and the
wave on top of me, it bent me over and pile d[r]ived my    head into
the beach." Brief for Appellant at 7.


                                  4
          Although Kowalsky said that when he arrived at the

beach the surf looked normal and no different from other visits,

he contends the water conditions were hazardous, resulting from

Hurricane Gustav, 1000-1200 miles offshore.    He maintains that

because of the hurricane, an unusually high number of rescues

occurred over that Labor Day weekend.   Both the lifeguard on duty

and the beach supervisor testified the weather was sunny and dry,

the surf normal for that time of year and there was no reason to

close the beach or prohibit bodysurfing.

          Kowalsky's amended complaint alleged that defendants,

various municipal entities and certain municipal employees: (1)

negligently supervised the beach; (2) failed to warn of a

dangerous condition; and (3) failed to properly train beach

patrol personnel.   Defendants denied negligence and asserted

immunity under the New Jersey Tort Claims Act.   N.J. Stat. Ann.

§59:1-1 et seq. (West 1992 & 1995 Supp.).   The district court

granted summary judgment to all defendants.0

                                B.

          On a sunny afternoon on September 1, 1990, Gary

Petrillo was swimming and "bodysurfing" in the ocean at the 12-

14th Street Beach in Surf City, New Jersey.    After forty minutes


0
 3. Under Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment may be granted when the pleadings, answers and
supporting material show there is no genuine issue as to any
material fact, and the moving party is entitled to judgment as a
matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Our review of a district court's grant of summary
judgment is plenary. See Lundy v. Adamar of New Jersey, Inc., 34
F.3d 1173, 1177 (3d Cir. 1994).



                                5
he became cold and decided to head ashore.      While hip-deep in the

water he was struck from behind by a wave that knocked him face

first into the sand.    Realizing he could not move, he remained

lying on his back in the water.       The attending lifeguard called

for assistance and Petrillo was taken by ambulance and helicopter

to a hospital.    As a result of his injury Petrillo remains

paralyzed from the neck down and has lost the power of speech.

           Petrillo contends that Hurricane Gustav, 1000-1200

miles offshore, had created turbulent water along the New Jersey

coast, resulting in hazardous conditions.      He maintains that

despite knowing the danger, the beach patrol failed to warn the

swimmers or close the beaches.    Petrillo's complaint alleged that

his accident was caused "jointly, severally or in the alternative

by the negligence, recklessness and carelessness" of defendants,

various municipal entities and employees of these entities.        His

mother, Lois Petrillo, and his sister, Jill Petrillo, alleged

emotional distress stemming from the accident.      Defendants denied

negligence and asserted immunity under the New Jersey Tort Claims

Act.   The district court granted summary judgment to all

defendants.

                                 II.

             The central issue presented by these appeals is the

nature and scope of immunity conferred upon defendant municipal

entities and municipal employees by New Jersey's Tort Claims Act,

which governs damage claims against public entities and public

employees.    In particular dispute is N.J.S.A. 59:4-8, which

confers immunity from liability for injuries caused by a


                                  6
condition of unimproved public property.    Defendants assert they

are entitled to immunity under this provision.     Kowalsky and

Petrillo maintain the public property at issue is "improved,"

making N.J.S.A. 59:4-8 immunity inapplicable.    In the

alternative, they contend that N.J.S.A. 59:4-8 does not bar their

claims for negligent supervision and failure to warn.

           In adjudicating a case under state law, we must predict

how the highest court of that state would decide the relevant

legal issues.    See Packard v. Provident Nat'l Bank, 994 F.2d

1039, 1049 (3d Cir.), cert. denied, 114 S. Ct. 440 (1993).       Our

review of the district court's determination of state law is de

novo.   Salve Regina College v. Russell, 499 U.S. 225, 231 (1991);

see also Acierno v. Cloutier, 40 F.3d 597, 609-10 (3d Cir. 1994)

(in banc).    Consequently, we turn to the Tort Claims Act as well

as New Jersey case law to evaluate the claims raised in this

appeal.

                                 III.

             The New Jersey Tort Claims Act sets forth the

parameters of immunity for government officials and government

acts.   The introductory section of the Act declares:


           [We] ... recognize[] the inherently unfair
           and inequitable results which occur in the
           strict application of the traditional
           doctrine of sovereign immunity. On the other
           hand [we] ... recognize[] that while a
           private entrepreneur may readily be held
           liable for negligence within the chosen ambit
           of his activity, the area within which
           government has the power to act for the
           public good is almost without limit and
           therefore government should not have the duty


                                  7
          to do everything that might be done.
          Consequently, it is hereby declared to be the
          public policy of this State that public
          entities shall only be liable for their
          negligence within the limitations of this act
          and in accordance with the fair and uniform
          principles established herein. All of the
          provisions of this act should be construed
          with a view to carry out the above
          legislative declaration.

N.J.S.A. 59:1-2.

          As part of the Tort Claims Act, the New Jersey

Legislature promulgated N.J.S.A. 59:4-8, which provides:
          [n]either a public entity nor a public
          employee is liable 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.

Both the comment to N.J.S.A. 59:4-8 and the New Jersey Supreme

Court make clear that "the term unimproved public property should

be liberally construed."   Troth v. State, 566 A.2d 515, 518 (N.J.

1989); see also Comment to N.J.S.A. 59:4-8&9 ("it is intended ...

that the term unimproved public property should be liberally

construed").   Underlying these determinations is the New Jersey

Legislature's policy judgment that the public should be permitted

to use unimproved public property in its natural condition, but

under the cloak of immunity.   Otherwise, the burdens and expenses

of putting such property in safe condition as well as the expense

of defending claims for injuries might cause public entities to

close these areas to public use altogether.   See Troth, 566 A.2d
at 519-20; Report of the Attorney General's Task Force on

Sovereign Immunity (May 1972).




                                 8
          In its clearest statement of the standard guiding a

determination of whether property remains "unimproved" under

N.J.S.A. 59:4-8, the New Jersey Supreme Court explained "[p]ublic

property is no longer 'unimproved' when there has been

substantial physical modification of the property from its

natural state, and when the physical change creates hazards that

did not previously exist and that require management by the

public entity."   Troth, 566 A.2d at 521.

                                 A.

          Our starting point for determining whether the

properties at issue here remain "unimproved" is to identify the

relevant properties.   In Troth, the plaintiff's injury occurred

after falling over a spillway in a boat on Union Lake, which lies

at the southern tip of a wildlife-management area belonging to

New Jersey.    The lake was created by a dam built in the

nineteenth century, which allows excess water to flow over a

spillway into an adjacent river.      The plaintiff in Troth alleged

the conditions created by the dam and the spillway resulted in

water flow rates dangerous to boats, and that these conditions

caused the accident.   The state contended the lake was unimproved

public property and therefore the state was immune from

liability.    After concluding that public property can be partly

improved and partly unimproved, the Troth court found the dam and
spillway were "improved."   Troth, 566 A.2d at 522.    Because the

accident occurred in the spillway, which was improved property,

N.J.S.A. 59:4-8 immunity did not apply.      Significantly for our

purposes, the New Jersey Supreme Court stated its finding would


                                 9
not foreclose application of 59:4-8 immunity to the lake itself,

which remained unimproved property.   Id. at 523.

          The parties here do not identify the relevant

properties for purposes of assessing N.J.S.A. 59:4-8 immunity.

Nevertheless, it is our view that the beach, or more

particularly, the water (and beach below) in which each plaintiff

was swimming while injured is the relevant property.   As Troth

illustrates, we should not look at the entire general area where

the injury occurred.   Just as a dam and spillway may be

distinguished from an adjoining lake in some circumstances, in

these instances, the surf and sand below it where the accidents

took place should be distinguished from the entire coastline, the

beaches themselves, or structures on the beaches.

                                B.

          To rebut defendants' assertion of immunity, Kowalsky

set out to prove that the property was improved.0   He submitted a

report prepared by an expert on beaches, which chronicled "beach

nourishment/modification" projects and the placement of

"permanent shore protection structures," such as stone jetties,

along the beaches of the region where the accident occurred.      The

thrust of the report was that the beaches of the area "[did] not

constitute a natural system" and that the beach configuration on


0
 In considering the application of N.J.S.A. 59:4-8 immunity,
under New Jersey case law, at trial "the burden is on ... [a]
public entity both to plead and prove its immunity under" the
Tort Claims Act. Kolitch v. Lindedahl, 497 A.2d 183, 189 (N.J.
1985); see also Bligen v. Jersey City Hous. Auth., 619 A.2d 575
(N.J. 1993).



                                10
the day of Kowalsky's injury "would not have been possible

without substantial man-made modifications to the natural

system."     Appellant's Appendix at 117.

             Yet Kowalsky's expert presented no evidence about Spray

Beach specifically, let alone the site of the injury or the

immediate surrounding area.     Furthermore, human modifications do

not necessarily result in "improved" property under N.J.S.A.

59:4-8.     In Troth the New Jersey Supreme Court rejected the Law

Division's view that the Tort Claims Act only confers immunity

when an injury is caused by a natural condition of any unimproved

property.    Troth, 566 A.2d at 520-21.     In so doing, the court

made clear that finding something is artificial--not natural--

does not necessarily make the property improved.

             Whether property is improved turns on whether there has

been a substantial physical modification from its natural state,

and whether the physical changes create a hazard that did not

previously exist and which requires management by the public

entity.     Troth, 566 A.2d at 521.    In addition, there must be a

causal link between the physical change to the property and the

injury.     Id. ("Obviously, in order for liability to be imposed on
the public entity there must be a causal connection between the

'improvement' and the alleged injury.").

            Under the Troth standard, the property relevant to

Kowalsky's claim remained unimproved.       First, there was no

evidence that the situs or immediate area of the accident was

modified, substantially or otherwise.       Second, there was no

evidence that the modifications closest to the site of the


                                  11
accident, such as the stone jetties built offshore at places

around Long Beach Island, constituted substantial physical

changes and created hazards that did not previously exist and

which warranted maintenance by municipal authorities.    Finally,

there was no evidence of a causal relationship between any

purported changes to the surrounding area and the injury Kowalsky

suffered.

            In sum, looking at all the evidence Kowalsky presented,

a reasonable jury could not find that his accident occurred on

property which is "improved" under N.J.S.A. 59:4-8.     There is no

genuine issue of material fact in dispute.    In different

circumstances other New Jersey courts have applied 59:4-8

immunity on summary judgment.   See, e.g., Troth, 566 A.2d 515;

Bany v. Borough of Haworth, 632 A.2d 535 (N.J. Super. Ct. App.

Div. 1993), certification denied, 639 A.2d 301 (N.J. 1994)

(reversing trial court grant of immunity under N.J.S.A. 59:4-8,

finding tree causing injury upon falling from public tract of

land was a "condition of improved property"); Freitag v. Morris

County, 426 A.2d 75 (N.J. Super. Ct. App. Div. 1981) (clearing a

sledding hill once did not render it improved property).     We

agree with the district court that the property here was

"unimproved," and that the immunity provision in N.J.S.A. 59:4-8

applies.

                                 C.

            In a similar effort to show the property where his

accident occurred was improved, Petrillo presented an expert's

view that "the beach at Surf City has been maintained by ongoing


                                 12
coastal engineering efforts that have included beach nourishment

projects and the construction of groin structures."    Appendix

Vol. II at 401.   The expert also claimed that "coastal structures

induce water motions and beach characteristics that differ

substantially from those found on natural or undisturbed

beaches."   Id.

            But the expert did not offer any evidence of "water

motions" or "beach characteristics" at the site of the injury or

the immediate surrounding area.    Furthermore, as we explained,

human modifications do not necessarily result in "improved"

property under N.J.S.A. 59:4-8.    Like the district court we see

no evidence from which a reasonable jury could find that

Petrillo's accident occurred on property which is "improved."

There was no evidence that the situs or immediate area of the

accident was modified, substantially or otherwise.    There was no

evidence of substantial physical changes, even in the surrounding

area, which created hazards that did not previously exist and

which warranted maintenance by municipal authorities.    Nor was

there evidence of a causal relationship between any purported

changes to the surrounding area and Petrillo's injury.    Because

there is no genuine issue of material fact that the property in

question is unimproved, N.J.S.A. 59:4-8 immunizes defendants from

these claims.0

0
 N.J.S.A. 59:4-8 is identical to an immunity statute previously
adopted by California. See Cal. Gov. Code § 831.2 (West 1995).
Interpreting the identical provision, California courts have
found "[i]t is now generally well settled that human-altered
conditions, especially those that have existed for some years,
which merely duplicate models common to nature are still 'natural


                                  13
                                 D.

                The tragic facts are that the injuries to Roman

 Kowalsky and Gary Petrillo were caused by ocean waves--acts of

  nature, which are a "natural" condition of unimproved public

  property.    As one New Jersey court explained in another case

   involving a swimmer injured in the surf, "[t]here can be no

liability on the part of ... [a] municipality for injuries caused

exclusively by the action of the ocean."    Stempkowski v. Borough

 of Manasquan, 506 A.2d 5, 7-8 (N.J. Super. Ct. App. Div. 1986).

                                IV.

            The question remains whether N.J.S.A. 59:4-8 immunity

precludes all causes of action arising from plaintiffs' injuries,

including causes of action for negligent supervision and failure

to warn.0   Kowalsky and Petrillo generally contend defendants

conditions' as a matter of law for the purposes of ... [§ 831.2
immunity]." Tessier v. City of Newport Beach, 268 Cal. Rptr.
233, 235 (Cal. Ct. App. 1990); see also Knight v. City of
Capitola, 6 Cal. Rptr. 2d 874, 879-80 (Cal. Ct. App. 1992).
0
  In their complaints, Kowalsky and Petrillo each alleged
defendants were liable under a "dangerous condition" cause of
action. N.J.S.A. 59:4-2 provides:

              A public entity is liable for injury caused
            by a condition of its property if the
            plaintiff establishes that the property was
            in dangerous condition at the time of the
            injury, that the injury was proximately
            caused by the dangerous condition, that the
            dangerous condition created a reasonably
            foreseeable risk of the kind of injury which
            was incurred, and that either:
              a. a negligent or wrongful act or omission
            of an employee of the public entity within
            the scope of his employment created the
            dangerous condition; or
              b. a public entity had actual or
            constructive notice of the dangerous

                                 14
assumed responsibility for the safety of the beaches and were

aware the weather created dangerous surf conditions, but

nevertheless failed to take action to prevent their accidents.

They also argue that as a matter of law N.J.S.A. 59:3-11

abrogates any grant of immunity which might be conferred by

N.J.S.A. 59:4-8.   We cannot agree.   Section 3-11 provides:


          [a] public employee is not liable for the
          failure to provide supervision of public
          recreational facilities. Nothing in this
          section exonerates a public employee for
          negligence in the supervision of a public
          recreational facility. (emphasis added).

The second sentence of N.J.S.A. 59:3-11 neither creates

liability, nor provides defenses or immunities, for negligent

supervision.   This is left to other statutory provisions like

N.J.S.A. 59:4-8, which provides immunity for both public entities

and public employees from claims arising from "injur[ies] caused

by a condition of any unimproved public property."    It is well-

established that supervision, once undertaken, must be conducted

in a non-negligent manner.   See Dudley v. Victor Lynn Lines,

          condition under section 59:4-3 a sufficient
          time prior to the injury to have taken
          measures to protect against the dangerous
          condition.
            Nothing in this section shall be construed
          to impose liability upon a public entity for
          a dangerous condition of its public property
          if the action the entity took to protect
          against the condition or the failure to take
          such action was not palpably unreasonable.

N.J.S.A. 59:4-2. On appeal Petrillo does not challenge the
district court's finding that his "dangerous condition" claim was
barred by N.J.S.A. 59:4-8. Brief for Appellant at 16. Similarly,
in his brief Kowalsky did not raise this issue on appeal.

                                15
Inc., 161 A.2d 479, 488 (N.J. 1960); see also Restatement

(Second) of Torts § 323 (discussing negligent performance after

undertaking to render services).     But the express language of

N.J.S.A. 59:4-8 and the policy judgments underlying it

demonstrate that immunity may still apply in the face of

negligence.   Once it has been determined that N.J.S.A. 59:4-8

immunity applies, the New Jersey Tort Claims Act makes clear that

"[a]ny liability of a public entity established by this act is

subject to any immunity of the public entity."     N.J.S.A. 59:2-

1b.0

          Significantly, our understanding of the relationship

between N.J.S.A. 59:3-11 and N.J.S.A. 59:4-8 is reinforced by the

view of the New Jersey Supreme Court that "[w]hen both liability

and immunity appear to exist, the latter trumps the former." Tice

v. Cramer, 627 A.2d 1090, 1095 (N.J. 1993) (setting out the

general principles of the Act and applying them to find that a

police officer enjoys absolute immunity under N.J.S.A. 59:5-

2b(2), absent willful misconduct, for injuries to bystander

arising from pursuit of fleeing vehicle); see also id. at 1102

("Under no circumstances, however, may ... [liabilities of public

employees], whatever their origin, trump the immunities provided

for in the Act.   Where inconsistent, the liabilities fall, the

immunities stand.").   Any possible liability allowed under

N.J.S.A. 59:3-11 must be subordinate to immunity conferred by

0
 The same principle, that liability is subordinate to immunity,
applies to public employees. N.J.S.A. 59:3-1b provides in part:
"[t]he liability of a public employee established by this act is
subject to any immunity of a public employee provided by law."

                                16
N.J.S.A. 59:4-8.   To "rule otherwise would be to ignore what is

probably the clearest and most important command of the Act,

namely, that the immunities set forth in the Act prevail over any

liabilities, whether found in the Act or in preexisting law,

including statutes."   Id. at 1103.

          In addition, notwithstanding that the Tort Claims Act

is less sweeping in immunizing public employees than public

entities, see generally Chatman v. Hall, 608 A.2d 263 (N.J. 1992)

(discussing the differential treatment of public employees and

entities by the Act), N.J.S.A. 59:4-8 makes clear that public

entities and employees share the same immunity status with regard

to "unimproved" property.

          In the face of these principles, plaintiffs' reliance

on certain New Jersey cases to support the view that N.J.S.A.

59:3-11 abrogates N.J.S.A. 59:4-8 is unwarranted.   While New

Jersey courts have yet to address the specific question whether

negligent supervision claims survive application of N.J.S.A.

59:4-8 immunity, the decisions refraining from answering this

question on the basis of procedural and other grounds do not

constitute a holding that immunity is abrogated.    See, e.g.,

Troth, 566 A.2d at 523 (deeming a negligent supervision claim

inappropriate for summary disposition because it "was not alleged

in the complaint and was only tangentially developed in the

abbreviated record" before the court); Stempkowski, 506 A.2d 5,

7-8 (1986) (holding that natural ocean action was not a

"dangerous condition" and therefore failing to reach the question

of how immunity claims are related to N.J.S.A. 59:3-11).


                                17
          Plaintiffs cite certain language in Troth to support

their view that a negligent supervision claim is not barred by

N.J.S.A. 59:4-8 immunity, and that once a public entity assumes

supervision, it must be exercised with due care.    The New Jersey

Supreme Court stated in Troth:
          [t]he controlling principle is that a public
          entity is not liable for the failure to
          supervise, but only for negligent
          supervision. Consequently, a public employee
          does not lose immunity without some employee
          conduct, no matter how minute, evidencing an
          intent to supervise.


Troth, 566 A.2d at 523.   But plaintiffs misinterpret the

significance of this statement.    In Troth the accident occurred

in the dam's spillway which was "improved" property.   The cited

language refers to a negligent supervision claim arising from an

injury sustained on "improved" property and therefore is

inapposite.   Because the injuries here took place on "unimproved"

property, N.J.S.A. 59:4-8 immunity applies.0

0
 Citing N.J.S.A. 59:2-2a, plaintiffs contend a public entity is
liable for an employee's negligent supervision.

          A public entity is liable for injury
          proximately caused by an act or omission of a
          public employee within the scope of his
          employment in the same manner and to the same
          extent as a private individual under like
          circumstances.

N.J.S.A. 59:2-2a. While a public entity can be liable for an
employee's negligence, N.J.S.A. 59:2-2a cannot abrogate N.J.S.A.
59:4-8 immunity. Section 59:2-2b provides: "[a] public entity is
not liable for an injury resulting from an act or omission of a
public employee where the public employee is not liable." If the
public employee defendants here are not liable, neither are the
municipalities.



                                  18
          We believe that the Tort Claims Act itself, coupled

with the guidance offered in Tice, make evident that a negligent

supervision claim of the character advanced here is also subject

to the statutory immunity conferred by N.J.S.A. 59:4-8.

                               V.

          Finally, defendants maintain that they are immunized

from any liability in this case by N.J.S.A. 59:3-2 and 59:2-3,

which confer immunity to public entities for the exercise of

judgment or discretion under certain circumstances.   Given our

disposition of the immunity claims presented here, we need not

examine this issue.

                              VI.

          For the foregoing reasons we will affirm the district

court's grants of summary judgment in favor of all defendants.




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