Defs.' Facts at ¶ 25. Rather, Plaintiff claims that she was injured by a person riding a boogie board. See Kleinke v. City of Ocean City, 163 N.J. Super. 424, 431 (Ch. Div. 1978), overruled on other grounds by Sharra v. City of Atl. City, 199 N.J. Super. 535 (App. Div. 1985). (N.J.S.A. 59:4-8 "clearly applies to the physical condition of the premises itself, [n]ot to the superimposition of an artificially created hazard thereon."). Moreover, Plaintiff's claim does not implicate the policy concerns underlying the New Jersey Legislature's determination to provide immunity under the NJTCA for unimproved properties.

For example, in Stempkowski v. Borough of Manasquan, 208 N.J. Super. 328, 506 A.2d 5 (App.Div. 1986), plaintiff alleged that the failure to provide lifeguards at an ocean beach created a dangerous condition of public property. We upheld the dismissal of plaintiff's complaint, citing Sharra v. City of Atlantic City, 199 N.J. Super. 535, 540, 489 A.2d 1252 (App.Div. 1985), and explaining that a dangerous condition refers to the physical condition of the property itself and not to the activities conducted on the property. Stempkowski, supra, 208 N.J. Super. at 331-32, 506 A.2d 5.

Heretofore, courts have understood a "dangerous condition" as defined in N.J.S.A. 59:4-1.a to refer to the "physical condition of the property itself and not to activities on the property." Sharra v. City ofAtlantic City, 199 N.J. Super. 535, 540, 489 A.2d 1252 (App.Div. 1985) (citing Rodriguez v. N.J. Sports ExpositionAuth., 193 N.J. Super. 39, 472 A.2d 146 (App.Div. 1983), certif. denied, 96 N.J. 291, 475 A.2d 586 (1984)); accordCogsville v. City of Trenton, 159 N.J. Super. 71, 386 A.2d 1362 (App.Div. 1978) (holding that exposure to dog bites from allegedly vicious dog owned by tenant in city dwelling did not constitute dangerous condition of property); Setrin v. GlassboroState College, 136 N.J. Super. 329, 346 A.2d 102 (App.Div. 197 5) (holding that criminal conduct of one student in attacking another student during on-campus racial incident did not constitute dangerous condition of property). In King by King v. Brown, 221 N.J. Super. 270, 534 A.2d 413 (App.Div. 1987), the court considered the activity on the property, in addition to its physical condition, in deciding whether a dangerous condition existed.

Despite its disarming simplicity, this definition of "dangerous condition" has spawned substantial litigation. See, e.g., Burroughs v. City of Atlantic City, 234 N.J. Super. 208, 214, 560 A.2d 725 (App.Div. 1989); Ross v. Moore, 221 N.J. Super. 1, 5, 533 A.2d 398 (App.Div. 1987); King by King v. Brown, 221 N.J. Super. 270, 275, 534 A.2d 413 (App.Div. 198 7); Sharra v. City of Atlantic City, 199 N.J. Super. 535, 540-541, 489 A.2d 1252 (App.Div. 1985); Speaks v. Jersey City Housing Auth., 193 N.J. Super. 405, 411, 474 A.2d 1081 (App.Div. 1984), certif. den. 97 N.J. 655, 483 A.2d 177 (1984); Speziale v. Newark Hous. Auth, 193 N.J. Super. 413, 419, 474 A.2d 1085 (App.Div. 1984); Cogsville v. Trenton, 159 N.J. Super. 71, 74, 386 A.2d 1362 (App.Div. 1978); Setrin v. Glassboro State College, 136 N.J. Super. 329, 332-333, 346 A.2d 102 (App.Div. 1975).

Id. at 411. In Sharra v. City of Atlantic City, 199 N.J. Super. 535 (App.Div. 1985), plaintiff was injured while riding his bicycle on the boardwalk when he was struck by an unknown bicyclist proceeding in the opposite direction. The operation of a bicycle on the boardwalk at that time of day was a permitted use, and there was no evidence that plaintiff was operating his bicycle without due care.

Historically, our Supreme Court held the term "dangerous condition" only refers "to the 'physical condition of the property itself and not to activities on the property.'" Levin v. Cty. of Salem, 133 N.J. 35, 44 (1993) (quoting Sharra v. City of Atlantic City, 199 N.J. Super. 535, 540 (App. Div. 1985); see also Wymbs v. Twp. of Wayne, 163 N.J. 523, 523 (2000). A dangerous condition is found when there is some physical defect in the property.

The term "dangerous condition" refers only to "the physical condition of the property itself and not to activities on the property." Levin v. Cnty. of Salem, 133 N.J. 35 (1993) (quoting Sharra v. Atlantic City, 199 N.J. Super. 535, 540 (App. Div. 1985). The physical condition of the property itself "must be defective for there to be recovery against a public entity."

The trial judge did not base his decision on these weaknesses in plaintiffs' liability theory. Relying on Sharra v. City of Atlantic City, 199 N.J. Super. 535 (App.Div. 1985) (bicyclist using boardwalk knocked down by other bicyclist); Rodriguez v. N.J. Sports and Exposition Authority, 193 N.J. Super. 39 (App.Div. 1983), certif. den. 96 N.J. 291 (1984) (criminal attack in parking lot of sports complex) and Setrin v. Glassboro State College, 136 N.J. Super. 329 (App.Div. 1975) (student assaulted during a racial incident), the trial judge ruled that for a dangerous condition to exist there must be a defect in the property such as a hole in the roadway or a protruding manhole cover.

Id. at 431. Moreover, detrimental to plaintiff's position is the express overruling of Kleinke in Sharra v. City of Atlantic City, 199 N.J. Super. 535 (App.Div. 1985), by the following language, "[w]e overrule Kleinke insofar as it holds that a body surfer in three to six foot waves constitutes a `dangerous condition'." Id. at 541.

The Levin court was concerned that the Burroughs approach to determining whether there was a dangerous condition was too broad and noted that other courts have understood a "dangerous condition" to refer only to the "physical condition of the property itself." Levin, 626 A.2d at 1095 (citingSharra v. City of Atlantic City, 489 A.2d 1252, 1255 (N.J.Super.Ct. App. Div. 1985)). The court was also concerned that the Burroughs doctrine would effectively eliminate the plan-or-design immunity conferred by N.J. Stat. Ann. §§ 59:4-6, because the plaintiff alleged that the bridge was a dangerous condition since its lacked signs or means of interdiction such as a chain-link fence.