FRANCIS ALFANO, JR. v. MIDDLESEX WATER COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1679-08T21679-08T2

FRANCIS ALFANO, JR., an infant

by his guardian ad litem,

DONNA ALFANO and DONNA ALFANO,

individually,

Plaintiffs-Appellants,

v.

MIDDLESEX WATER COMPANY,

Defendant-Respondent,

and

THOMAS HUNTERTON, DIANE

HUNTERTON and SCOTT HUNTERTON,

Defendants.

_______________________________

 

Argued on August 5, 2009 - Decided

Before Judges Rodr guez and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7296-06.

Lane M. Ferdinand argued the cause for appellants (Law Offices of Lane M. Ferdinand; Mr. Ferdinand, on the brief).

Adam James Boyle argued the cause for respondent (Wellinghorst & Fronzuto, attorneys; Mr. Boyle, on the brief).

PER CURIAM

Plaintiffs, Francis Alfano, Jr. (Francis), a minor, and his guardian ad litem, Donna Alfano, appeal from the August 15, 2008 order of the Law Division granting summary judgment to defendant, Middlesex Water Company (MWC), dismissing their complaint with prejudice. For the reasons that follow, we affirm.

The pertinent factual background, derived from the pleadings and motion papers submitted to the trial court, may be summarized as follows. On or about May 27, 2004, then-sixteen-year-old Francis was a passenger on an all-terrain vehicle (ATV) operated by Scott Hunterton (Scott), on property owned by MWC. Scott was driving the ATV on a gravel path when the front tire became caught in "overgrowth abutting the path during an attempted turn, causing the ATV to flip." Francis suffered severe injuries as a result.

On September 11, 2006, plaintiffs sued MWC, Scott and his parents and other parties. Plaintiffs asserted that MWC

owne[d] or had control of the property which consisted of a wooded area in . . . South Plainfield[,] . . . [and] negligently maintained and controlled said premises so as to create an attractive nuisance and permit access thereon without adequate security gates or means to deny access to children who commonly ro[de] ATVs and other motorized vehicles on said property and had done so for a continuous and long period of time with [the] knowledge and the implied consent of [MWC].

On or about June 12, 2008, MWC filed a motion for summary judgment, arguing that: (1) it was entitled to immunity under the Landowner's Liability Act, N.J.S.A. 2A:42A-1 to -10 (LLA); and (2) Francis was a trespasser and, therefore, MWC owed him no duty. MWC described the property in question as an eighty-eight-acre tract, known as "Riley Woods," that is largely undeveloped "private property owned by [MWC]" on which "water pumping stations are located." In September 2001, MWC "began posting 'Private Property' and 'No Trespassing' signs on trees and prominent locations throughout the property." MWC argued that N.J.S.A. 2A:42A-3(a) "clearly states that [it] had no duty to keep the premises safe for [the] use [of] sport or recreational activities."

Plaintiffs claimed in opposition that MWC had "made improvements to the property . . . including one right near the accident and construct[ed] gravel roads[,]" and that MWC "neither posted signs to keep persons away from the property, nor erected barriers to entry, nor took any other measures to keep people off the property." Plaintiffs further claimed that MWC "knew or should have known that children used the property to ride ATVs; prior to the accident herein[,] there were at least 41 incidents where the police were summoned to the property or its surroundings due to noise complaints."

The trial court heard oral argument on August 15, 2008, and rendered a decision from the bench granting MWC's motion, primarily relying upon N.J.S.A. 2A:42A-3(a), which exempts a landowner from liability to those who use the property for "sport or recreational activities . . . ." The court concluded that, under the facts of the case, MWC was entitled to "immunity from liability for the claims of the plaintiff." As the court noted, "plaintiff was on the property for the express[] purpose of engaging [in] the sport of riding the [ATV] up and down the [property], an activity that was plainly recreational; . . . therefore, the plaintiff's actions were sport and recreational; and, thus, the [LLA] applied . . . ."

On appeal, plaintiffs argue that the trial court erred in applying the LLA to grant "immunity" to the MWC respecting property "located in the densely populated city of South Plainfield . . . ." Plaintiffs contend that the property is "manifestly not the [kind] of 'rural and semi-rural tract of land' to which the [LLA] conferring immunity was intended to apply." We disagree.

We note initially that when reviewing an order granting summary judgment, we apply the same standards as the trial court. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Summary judgment may be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co of Am., 142 N.J. 520, 540 (1995). Applying that standard, we are satisfied that the trial judge properly granted summary judgment to MWC under the circumstances presented here.

The LLA provides in pertinent part that

[a]n owner, . . . whether or not posted as provided in section 23:7-7 of the Revised Statutes, and 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 or 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-3(a).]

N.J.S.A. 2A:42A-2 includes "operating or riding . . . all-terrain vehicles or dirt bikes" within the definition of "sport and recreational activities."

Plaintiffs rely upon Harrison v. Middlesex Water Co., 80 N.J. 391, 400 (1979) for the proposition that the LLA affords immunity from liability for landowners arising out of recreational activities conducted on "primarily undeveloped, open and expansive rural and semi-rural properties where hunting, fishing and trapping might be expected to take place." Because the property on which this accident occurred is "located in the densely populated City of South Plainfield, . . . surrounded by many houses, a church, and a school[,]" plaintiffs contend the LLA "was not intended to apply to this property . . . ."

As MWC points out, however, subsequent to the Harrison decision, the Legislature amended the LLA to define more broadly the type of "premises" entitled to immunity under the statute "to include 'premises' 'whether or not improved or maintained in a natural condition, or used as a part of a commercial enterprise.'" Weber v. U.S., 991 F. Supp. 694, 700 (D.N.J. 1998) (quoting N.J.S.A. 2A:42A-3(a)). Simultaneously, the Legislature added a provision mandating that the LLA "'be liberally construed . . . .'" Ibid. (quoting N.J.S.A. 2A:42A-5.1).

In Toogood v. St. Andrews at Valley Brook Condo. Ass'n, 313 N.J. Super 418 (App. Div. 1998), cited by plaintiffs, we declined to expand the scope of immunity under the LLA to a private residential condominium development when the plaintiff was injured while rollerblading on a road within that development. In reversing summary judgment granted to the defendant condominium association, we "conclude[d] [that] the [LLA], as amended, does not immunize the owners and occupiers of suburban residential property . . . ." Id. at 426.

By contrast here, the premises in question is largely undeveloped; the majority of the eighty-eight acres is maintained in a natural woodland condition and the area is not used for any residential purposes. We concur with MWC that this is "the type of property specifically contemplated by the [L]egislature when enacting the LLA."

Moreover, Francis' activity of riding as a passenger on Scott's ATV was, as noted, expressly included within the definition of sport or recreational activity set forth in N.J.S.A. 2A:42A-2. Under N.J.S.A. 2A:42A-3, MWC is exempt from liability for injuries resulting from such activities. Whether the property itself is "rural" or "semi-rural" is immaterial to this analysis, as is the fact that this property is "located in the densely populated City of South Plainfield[,]" as plaintiffs contend.

Plaintiffs' remaining assertions regarding the presence of disputed material facts sufficient to prevent entry of summary judgment are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

(continued)

(continued)

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A-1679-08T2

 

August 21, 2009