story from Herald Newspapers in Cape May County

Under New Jersey tort law, the city is a public entity and cannot be held liable "for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person."

Unfortunately for Kelly, tort law states that a "public entity (and its employees) is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable."

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

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

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

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

The trial judge, however, observed that moving the kayak further away from the surf or tethering it to the stand was contrary to its primary purpose of giving lifeguards "the instantaneous ability to attempt to save a life."

Court opinion held that "palpably unreasonable" behavior is "patently unacceptable under any circumstance" and if judged so a public entity should be considered "manifest and obvious that no prudent person would approve of its course of action or inaction."

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Seaside communities, lifeguards aren&#039;t liable for beachgoer&#039;s injury

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Seaside communities, lifeguards aren't liable for beachgoer's injury