A beach town is using blunt legal arguments to resist a demand that it permanently close a section of beach where a man plunged into an inlet and drowned when the sand gave way beneath his feet.
North Wildwood acknowledges that the 2012 death of Brad Smith, of Horsham, Pennsylvania, was a tragedy. But the town also asserts that Smith's family will never go back there, that closing the beach would ruin things for other people who still want to go there and that the unstable sand condition that claimed his life is part of nature and isn't something it's obligated to fix.
And then there's this: "Plaintiffs are well aware that no one has drowned in that area since Brad Smith," North Wildwood wrote in court papers.
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Two other people drowned there from a similar accident a few years earlier, in 2009.
Smith's family is suing North Wildwood for damages and is seeking closure of the beach where he died.
A judge in Atlantic City will hear arguments next month on whether part of the beach near Hereford Inlet in North Wildwood should be placed permanently off limits to the public because of an inherently dangerous condition caused by tidal flows.
Smith family lawyer Paul D'Amato says the town knows that section of beach is dangerous but failed to keep people away from it with signs or other warnings. A lawsuit filed against the town asserts it knew at least six years before Smith's death that the area was dangerous, citing a pre-trial deposition given by the town's chief lifeguard.
Attorney A. Michael Barker, representing North Wildwood, wrote in court papers that there is no dispute that the conditions at the inlet beach are naturally occurring and that the town is under no obligation to fix them. North Wildwood, he said, is immune from lawsuits arising from a "public nuisance" on unimproved public land under state law.
"It is undeniable that plaintiffs have suffered a tragedy in the loss of Brad Smith," he wrote. "As a result, plaintiffs seek to permanently close Inlet Beach to the public. While plaintiffs' actions may be well-intended, they are not in a position to represent and speak for the many people that live, work and vacation in North Wildwood. From their residences in Pennsylvania, they are pursuing a court order to deprive the many people that do benefit, directly and indirectly, from Inlet Beach."
And, Barker wrote, if the Smiths ever do return they now know enough about the dangers of the site "to avoid any alleged hazards" there.