story from Herald Newspapers in Cape May County

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Under New Jersey tort law, the city is a public entity andcannot be held liable "for an injury, whether such injury arisesout of an act or omission of the public entity or a public employeeor any other person."

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Unfortunately for Kelly, tort law states that a "public entity(and its employees) is not liable for the exercise of discretionwhen, in the face of competing demands, it determines whether andhow to utilize or apply existing resources, including thoseallocated for equipment, facilities and personnel unless a courtconcludes that the determination of the public entity was palpablyunreasonable."

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According to court documents, Margaret Kelly was enjoying a dayat the beach with her husband and grandchildren on July 25, 2005.After finding a spot ear a lifeguard stand, Kelly waded into thesurf with her granddaughter. While standing in the shallow waterwith her back to the beach, Kelly was struck in the back of herlegs by an unmanned rescue kayak, causing a fracture of her tibiaand fibula.

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Two lifeguards testified that they were trained to keep theirkayaks slightly behind and either to the left or right of theirstands, which are to be kept at water's edge. One of the lifeguardscalled the surf "very rough" at the time of the incident. He said alarge wave had carried the kayak away and he was in the process ofretrieving it when Kelly was hit.

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Thomas Griffiths, a water safety expert who testified for Kelly,suggested that the kayak was misplaced on the beach.

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"Good risk management principles would have dictated that theocean kayaks either be removed from service on the beach ortethered to the lifeguard stations in some fashion," he opined.

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The trial judge, however, observed that moving the kayak furtheraway from the surf or tethering it to the stand was contrary to itsprimary purpose of giving lifeguards "the instantaneous ability toattempt to save a life."

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Court opinion held that "palpably unreasonable" behavior is"patently unacceptable under any circumstance" and if judged so apublic entity should be considered "manifest and obvious that noprudent person would approve of its course of action orinaction."

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