NEW BRUNSWICK – Swim at your own risk. And if something goes wrong, you can’t blame the city.

A grieving mother who lost her 11-year-old son to a drowning in 2012 suffered another legal loss on Tuesday when an appellate panel upheld the dismissal of her lawsuit against the city and the state.

Carol Leonard’s son, Devine Nichols, and his 10-year-old friend, Francisco Perera, drowned after they got caught in the dangerous Raritan River during a summer squall on Aug. 2, 2012. Their bodies were found the next day.

Leonard sued, claiming the city was negligent for not blocking access to the river with fences or barricades, or putting up signs that warned of the river’s dangerous currents.

Her lawsuit was dismissed last year by a Superior Court judge, but she appealed. At issue was whether a public entity is responsible for a tragedy that occurs in a body of water connected to public land.

Under state law, a public entity can be held responsible for an injury or death if the property was in a dangerous condition; the injury was caused by that dangerous condition; the risk was reasonably foreseeable; and the entity either had time to correct the condition or the condition was caused by a public employee.

The law, however, doesn’t allow victims to sue if the injury occurred on unimproved property — that is, property that hasn’t been developed. This would include lakes, streams, bays, rivers or beaches, or any property that is underwater.

The state Supreme Court in 1989 noted that this immunity from lawsuits serves “the legislature’s avowed purpose of encouraging the public to use unimproved recreational property at its own risk.”

In another decision, the 3rd U.S Circuit Court of Appeals in 1995 noted that New Jersey lawmakers have decided that “the public should be permitted to use unimproved public property in its natural condition, but under the cloak of immunity.”

Other recent drownings in New Jersey have prompted lawsuits that also were unsuccessful. This summer, a trial judge blocked efforts by a Pennsylvania family to close a dangerous beach in North Wildwood where their relative died in July 2012. Two other victims had died on the same beach three years earlier.

While the Raritan River is enjoyed by boaters and fishermen, it is not sought after by swimmers and there are never any lifeguards.

A witness told police that she had seen the two boys standing in the middle of the river during low tide. She recalled that it began raining about five minutes after she had last seen them.

The two boys apparently went to the river alone after Nichols’ sister left the boy at a different park, thinking he would stay there a bit longer and return home.

Leonard’s lawsuit tried to argue that Boyd Park, an access point to the Raritan on Route 18, counts as an improvement.

The courts, however, said the death occurred in the river, not the park.

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Sergio Bichao is deputy digital editor at New Jersey 101.5. Send him news tips: Call 609-359-5348 or email

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