PENNY MONK v. STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5089-09T1

PENNY MONK,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY, DEPARTMENT

OF ENVIRONMENTAL PROTECTION,

DIVISION OF PARKS & FORESTRY and

DIVISION OF FISH & WILDLIFE,

Defendants-Respondents.

_________________________________

May 6, 2011

Argued April 4, 2011 Decided

Before Judges Sabatino and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-593-07.

John V. McDermott, Jr., argued the cause for appellant.

Karen L. Jordan, Deputy Attorney General, argued the cause for respondents (Paula T. Dow, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel, Suzanne J. Shaw, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Penny Monk appeals from a May 13, 2010 order dismissing on summary judgment her complaint against the State of New Jersey for injuries that she suffered after a fall in Wawayanda State Park. We affirm.

I.

The material facts are uncomplicated and substantially undisputed. On September 2, 2005, plaintiff took a walk with her large dog near the Appalachian Trail in Wawayanda State Park, Sussex County. She stopped about a "good thousand feet" into the park, while her dog swam unleashed in a creek near a narrow footbridge. The footbridge rested on a much wider, horizontal concrete abutment that once supported a vehicular bridge.

As the dog swam, plaintiff walked atop the exposed portion of the concrete abutment above the water's edge. A worn path diverged from the trail to the bridge, and led down to the concrete abutment. As she paced back and forth, plaintiff caught her foot under a weathered metal bracket that was bolted to the concrete but obscured by leaves. Shaped like a flattened and elongated letter omega, the bracket was likely a remnant of the old vehicular bridge. Plaintiff fell and suffered serious injuries.

Although she initially brought suit against Vernon Township and the New York-New Jersey Trail Conference as well as the State of New Jersey,1 only the State remained a defendant when it moved for summary judgment. The court granted the State's motion in part based on its view that the State was protected by the Landowner's Liability Act (LLA), N.J.S.A. 2A:42A-1 to -10, which is made applicable to the State by N.J.S.A. 59:2-1, a provision of the New Jersey Tort Claims Act.

II.

We review the trial court's grant of summary judgment de novo applying the standard set forth in Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995). Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005). Having reviewed the record in light of that standard, we agree that summary judgment was appropriate.

The Landowner's Liability Act was intended to shield from liability private owners of rural or semi-rural lands used by the public for sport and recreational activities. Harrison v. Middlesex Water Co., 80 N.J. 391, 399-401 (1979).

An owner . . . of premises . . . whether or not improved or maintained in a natural condition, or used as part of a commercial enterprise, owes no duty to keep the premises safe for entry or use by others for sport and recreational activities, or to give warning of any hazardous condition of the land or in connection with the use of any structure or by reason of any activity on such premises to persons entering for such purposes.

[N.J.S.A. 2A:42A-3a.]

The immunity applies, even if the owner expressly permits entry by the public:

An owner . . . of premises who gives permission to another to enter upon such premises for a sport or recreational activity or purpose does not thereby (1) extend any assurance that the premises are safe for such purpose, or (2) constitute the person to whom permission is granted an invitee to whom a duty of care is owed, or (3) assume responsibility for or incur liability for any injury to person or property caused by any act of persons to whom the permission is granted.

[N.J.S.A. 2A:42A-3b.]

The statute defines "sport and recreational activities" by a non-exclusive list of pursuits and activities ranging from relatively passive picnicking, to active hunting, riding, and skiing.

As used in this act "sport and recreational activities" means and includes: hunting, fishing, trapping, horseback riding, training of dogs, hiking, camping, picnicking, swimming, skating, skiing, sledding, tobogganing, operating or riding snowmobiles, all-terrain vehicles or dirt bikes, and any other outdoor sport, game and recreational activity including practice and instruction in any thereof.

[N.J.S.A. 2A:42A-2.]

The LLA does not shield landowners from liability for their willful or malicious acts, or when the landowner received consideration from the injured party for the right to use the land.

This act shall not limit the liability which would otherwise exist:

a. For willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity; or

b. For injury suffered in any case where permission to engage in sport or recreational activity on the premises was granted for a consideration other than the consideration, if any, paid to said landowner by the State . . . .

[N.J.S.A. 2A:42A-4.]

Plaintiff argues that the LLA does not immunize the State from liability in this case because: (1) the LLA does not cover the State as a property owner; (2) plaintiff's walk in the park was not a sport or recreational activity covered by the LLA; and (3) the State willfully and maliciously failed to warn plaintiff about, or guard against, the dangerous condition posed by the metal bracket on the concrete abutment. The trial court rejected those contentions and so do we.

First, it is well-settled that public entities are covered by the LLA. Trimblett v. State, 156 N.J. Super. 291, 294-95 (App. Div.) (State covered by LLA in wrongful death claim arising out of boating accident at State-owned Round Valley Reservoir), certif. denied, 75 N.J. 589 (1977). The Tort Claims Act provides that a public entity may avail itself of any defenses that would be available to a private person. N.J.S.A. 59:2-1b. Consequently, the State enjoys the same protections under the LLA that are available to private property owners. Trimblett, supra, 156 N.J. Super. at 295. That is so, even though the LLA's immunity may be broader than the protections under the Tort Claims Act itself. Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 409 (1988).

Second, we are unpersuaded that plaintiff's activity falls outside the scope of "sport and recreational activities." It is undisputed that on the day of her injury, plaintiff walked into the park with her dog for recreational purposes. She often walked in the park with her dog, and enjoyed bird-watching when she did.

Plaintiff argues that the LLA expressly covers "hiking," but excludes mere "walking," and walking is all she did. We do not quarrel with the argument that "hiking" may generally be understood to imply more effort and strain than "walking." However, the distinction is not dispositive. The statutory list of "sport and recreational activities" is non-exclusive. Although the list includes "hiking," it also includes "any other outdoor sport, game and recreational activity." N.J.S.A. 2A:42A-2.

While a strenuous, ten-mile hike up hills and over rocks may be both "sport" as well as a "recreational activity," the LLA clearly does not contemplate that a covered activity must be both. Otherwise, "picnicking" would not be included. A nature walk, or an easy stroll along flat, well-maintained paths are among the "recreational" uses of open spaces that the LLA was intended to cover.

The LLA mandates that we liberally construe its terms in order to induce landowners to open their property to persons who participate in sport and recreational activities. N.J.S.A. 2A:42A-5.1. The liberal construction provision was added in 1991, along with other amendments, "to focus the inquiry on the dominant character of the land and to account for the evolving types of activities considered recreational pursuits." Toogood v. St. Andrews at Valle Brook Condo. Ass'n, 313 N.J. Super. 418, 425-26 (App. Div. 1998). Accordingly, we find that plaintiff's walk in the woods with her dog, as she bird-watched, was a covered activity.

Third, we find no basis in the record to support plaintiff's argument that even if the LLA applies to her activity in Wawayanda State Park, the State willfully and maliciously failed to warn her about, or guard against the dangerous condition created by the metal bracket on the concrete abutment. Granting plaintiff all favorable inferences appropriate on a motion for summary judgment, Brill v. Guardian Life Ins. Co. of Am., supra, 142 N.J. at 536, we agree that the record could support a finding that the bracket was a dangerous condition.

Even assuming for argument's sake that the State was on notice of the dangerous bracket, the record is devoid of proof that the State maliciously or willfully failed to warn her, or guard against the danger. The LLA does not define "malicious" or "willful." However, we may be guided by judicial interpretations of a comparable provision of the Tort Claims Act, which denies immunity to public employees who act with "actual malice" or engage in "willful misconduct." See N.J.S.A. 59:3-14.

The limitation on immunity in the Tort Claims Act is designed to cover "outrageous conduct." Velez v. City of Jersey City, 180 N.J. 284, 291 (2004). Malice in the Tort Claims Act requires proof of an "improper motive." Van Engelen v. O'Leary, 323 N.J. Super. 141, 151 (App. Div.) (reversing and remanding for entry of summary judgment), certif. denied, 162 N.J. 486 (1999). On the other hand, "willful misconduct" has been construed to encompass deliberate acts or omissions made with knowledge that harm will very likely result, or with reckless indifference to the consequences. Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 584 (2009). Essential to a finding of "willful misconduct" is proof that the actor had some knowledge that his or her acts or omissions were wrongful. See Fielder v. Stonack, 141 N.J. 101, 124 (1995) ("Although willful misconduct need not involve the actual intent to cause harm . . . there must be some knowledge that the act is wrongful.") Willful misconduct is "much more" than mere negligence. Ibid. "Carelessness, unreasonable conduct or even noncompliance with substantive law" does not result in a loss of immunity. Van Engelen v. O'Leary, supra, 323 N.J. Super. at 154.

We also find persuasive the court's application of the "willful or malicious failure" formulation under the LLA in Krevics v. Ayars, 141 N.J. Super. 511 (Law Div. 1976). While not attempting to define the terms, the court denied defendant's motion for summary judgment in the face of evidence that defendant "caused or consented to the placement of a cable across the motorbike trail" that had been used for several years on his 11-acre, undeveloped woodland tract in Salem County. Id. at 514. There were no warning signs, and at dusk, the cable was difficult to see. Ibid. Plaintiff came in contact with the cable and suffered substantial injuries. Ibid. The court found that the LLA did not protect defendant. "The hazardous condition was created by defendant. The erection of the cable was certainly a willful act. In view of defendant's knowledge of the use of the motorbike trail, and considering the type of hazard erected, defendant's action may even be construed as malicious." Id. at 516.

Applying the definitions expressed in the Tort Claims Act cases, and those suggested by the court in Krevics, we discern no basis in the record to support a finding that the State acted maliciously or willfully in failing to warn about the metal bracket, or to guard against the danger that it posed. At most, plaintiff presents circumstantial evidence that the State, in the course of purchasing the land for the park and in ongoing maintenance, was on notice that the bracket existed. Yet, that falls far short of the necessary showing of willfulness or malice. In a large wooded State park, there are numerous dangerous conditions, natural and manmade, known and unknown, that the State's park employees realistically cannot, or may choose not to address because of competing demands on State resources. A park ranger could decide that he or she lacked the time, skill or tools to remove the bracket, or that the bracket should remain as an interesting artifact of the former vehicle bridge, which posed no more significant tripping hazard than an obscured rock, root or vine.

Given our conclusion that summary judgment was warranted under the LLA, we need not address whether the State would have been entitled to dismissal based on the Tort Claims Act alone.

Affirmed.

1 Plaintiff named as defendants the State of New Jersey, the New Jersey Department of Environmental Protection (DEP), and the Divisions of Parks & Forestry and Fish & Wildlife, both within DEP. We refer to all those as the State.