CARLA VAXTER v. LIBERTY STATE PARK STATE OF NEW JERSEY

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1044-09T2

CARLA VAXTER,

Plaintiff-Appellant,

v.

LIBERTY STATE PARK, STATE OF

NEW JERSEY, DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

DIVISION OF PARKS & FORESTRY,

and STATE PARK SERVICE,

Defendants-Respondents.

________________________________

October 28, 2010

 

Submitted September 28, 2010 - Decided

Before Judges Parrillo and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5623-08.

Freeman & Bass, P.A., attorneys for appellant (Randall Bass, on the brief).

 

Paula Dow, Attorney General, attorney for respondents (Melissa H. Raksa, Assistant Attorney General, of counsel; Gregory A. Spellmeyer, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Carla Vaxter appeals from the summary judgment dismissal of her personal injury negligence complaint, finding defendant State entities1 immune from liability under the Landowners' Liability Act (LLA or Act), N.J.S.A. 2A:42A-2 to

-10, specifically N.J.S.A. 2A:42A-3. We affirm.

The material facts are not in dispute. On the morning of July 20, 2007, plaintiff and her friend visited Liberty State Park in Jersey City to exercise on the park's walking paths. No fee of any kind was charged for access to or use of the park's grounds, which are operated and maintained by the State, and are open and free to the public. Following their speedwalking workout, plaintiff and her friend returned to a parking lot on the premises to retrieve water bottles from her friend's car. After consuming the water, plaintiff attempted to discard the empty water bottles in a trash receptacle. On her way to the receptacle, plaintiff crossed over a white barrier and stepped into a hole in a grassy area located in front of the parking lot, causing her to trip and fall and injure her ankle.

Plaintiff sued defendant alleging the State is liable for negligently maintaining the property and creating a dangerous condition. Following discovery, defendant moved for summary judgment, which the motion judge granted, finding Liberty State Park qualified as "premises" subject to the protective immunity afforded by the LLA. The judge reasoned in part:

[P]laintiff was jogging and speedwalking while on the park premises. In the eyes of this Court, this is recreational activity. While plaintiff may have finished her exercise and was on her way to the parking area when the injury occurred, she had not left the park yet. And since she had been at the park for recreational purposes, the [LLA] applies.

 

. . . .

 

It would be an unreasonable construction of the respective statutes to construe them as providing that the state or other public entity would have a greater tort liability than a private landowner. The Trimblett [v. State, 156 N.J. Super. 291, 295 (App. Div.), certif. denied, 75 N.J. 589 (1977)] court, therefore, concluded that the Landowner Liability Act precludes liability on the part of the [S]tate. Therefore, in this case the State of New Jersey may avail itself of the protection and immunity offered by [the LLA] . . . .

 

On appeal, plaintiff argues that the LLA does not apply because she had finished exercising and was conferring a benefit upon the State at the time of the accident and because the State generated the risk of injury. We disagree and affirm substantially for the reasons stated by the motion judge in her oral opinion of August 27, 2009. We add only the following comments.

The LLA provides in pertinent part that:

[a]n owner . . . of [the] 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[. Moreover, a]n owner . . . of [the] 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-3.]

 

The Act does not create any duty of care or ground of liability for damages for injury. N.J.S.A. 2A:42A-5. The Act protects landowners from liability for injuries suffered by people who use the property, free of charge, for recreational purposes. N.J.S.A. 2A:42A-3, and -4. "Sport and recreational activities" include hiking, picnicking, "and any other outdoor . . . recreational activity . . . ." N.J.S.A. 2A:42A-2.2

Originally, the LLA had specific reference to "large tracts or areas of natural and undeveloped lands located in thinly populated rural or semi-rural areas or on property having all or most of the characteristics of such rural and semi-rural lands, particularly as to size, naturalness and remoteness or insulation from populated areas." Harrison v. Middlesex Water Co., 80 N.J. 391, 399 (1979). In 1991, however, the Legislature amended the LLA to clarify that the scope of the Act's immunity included "premises," "whether or not improved or maintained in a natural condition, or used as part of a commercial enterprise." N.J.S.A. 2A:42A-3(a); see also Weber v. United States, 991 F. Supp. 694, 700 (D.N.J. 1998) (quoting N.J.S.A. 2A:42A-3(a)). The Legislature also added N.J.S.A. 2A:42A-5.1, which states that "[t]he provisions of [the Act] shall be liberally construed to serve as an inducement to the owners, lessees and occupants of property, that might otherwise be reluctant to do so for fear of liability, to permit persons to come onto their property for sport and recreational activities."

The LLA, which provides immunity to private landowners, is made applicable to the State under the Tort Claims Act, N.J.S.A. 59:1-1 to -12-3. Trimblett, supra, 156 N.J. Super. at 295. Specifically, the Tort Claims Act provides that "[a]ny liability of a public entity . . . is subject to any defenses that would be available to the public entity if it were a private person." N.J.S.A. 59:2-1b. Accordingly, as the trial court found, the State may avail itself of the immunity defense afforded to private landowners under the LLA. See Trimblett, supra, 156 N.J. at 295; see also Magro v. City of Vineland, 148 N.J. Super. 34, 39 (App. Div. 1977).

Although, as a general proposition, plaintiff does not dispute the applicability of the LLA to public entities, including the State, she nevertheless contends that the Act does not govern here because she was not engaged in recreational activities at the time that she was injured, but rather was attempting to discard trash. Plaintiff cites no authority for her narrow construction of the Act, which is belied by its plain language. The LLA's protective immunity is neither restricted nor limited to injuries incurring during recreation, but rather extends to persons who have entered qualified premises for a recreational activity or purpose. Thus, N.J.S.A. 2A:42A-3a clearly states that no duty is owed "to persons entering for such [recreational] purposes." Similarly, N.J.S.A. 2A:42A-3b states that the landowner incurs no liability for injury to a person who is given permission "to enter upon such premises for a sport or recreational activity or purpose . . . ." The Act, therefore, applies to plaintiff's claim for injury because she indisputably entered and was on the park premises for a recreational purpose or activity. To conclude otherwise would be contrary to the Act's plain language and inconsistent with its purpose to serve as an inducement to landowners to open their premises for recreational activity. Such conclusion also would be inconsistent with the Act's instruction that it be liberally construed to achieve its purpose. N.J.S.A. 2A:42A-5.1.

It is equally clear that Liberty State Park qualifies as a protected "premises" under the LLA. Although located in a heavily populated urban area, the park itself, as found by the motion judge, "is an expansive piece of land open to the public for recreational purposes free of charge and is not in a residential area." In Weber, supra, the plaintiff was injured on the playground equipment of a park opened to the general public on the premises of a military reservation owned by the federal government. 991 F. Supp. at 695. The court held that the LLA cloaked the government with immunity against tort liability because the park qualified as "premises" under the Act and the "[p]laintiff had entered and was using the Park for recreational activity. Id. at 700. The court reasoned that the 1991 amendments broadened the scope of the term premises to cover parks by specifically including land "whether or not improved or maintained in a natural condition." Ibid. In Toogood v. St. Andrews at Valley Brook Condominium Ass'n, 313 N.J. Super. 418 (App. Div. 1998), we agreed, commenting, "[m]aintenance of an open tract of land and allowance of access by the general public for passive or active recreational purposes are precisely the types of conduct the Legislature seeks to encourage." Id. at 425. Likewise, here, plaintiff entered and used an open tract of land at Liberty State Park for recreational activity when she was injured. As such, the park qualifies as premises afforded immunity under the LLA.

Plaintiff also argues against immunity because the State allegedly created the risk of injury. In support of this contention, plaintiff relies exclusively on Willis v. Department of Conservation & Economic Development, 55 N.J. 534 (1970) superseded by statute, Tort Claims Act, L. 1972, c. 45, 59:9-2, as recognized in Kahrar v. Borough of Wallington, 171 N.J. 3 (2002), which allowed a claim by a girl seriously injured while feeding a caged bear at a State park. Id. at 540. However, Willis' abrogation of the State's sovereign immunity for tort claims was superseded by the enactment of the Tort Claims Act in 1972, which

"re-establish[ed] immunity of public entities in New Jersey, on a basis more current and equitable than that which had obtained prior to Willis." Harry A. Margolis & Robert Novack, Claims Against Public Entities, Introduction, at ix (2001). What emerged is the general rule that public entities are immune from tort liability unless there is a specific statutory provision imposing liability. Collins v. Union County Jail, 150 N.J. 407, 413, 696 A.2d 625 (1997).

 

[Kahrar, supra, 171 N.J. at 9-10.]

 

Thus, the Tort Claims Act "reinstate[d] the rule that protects public entities from civil liability with the few limited exceptions expressly provided for in the provisions of the Act." Alston v. City of Camden, 168 N.J. 170, 181 (2001). Liability, therefore, attaches only where immunity does not apply. Here, there is immunity under the LLA. Moreover, there is no basis for liability even under the Tort Claims Act, as there is no record evidence that the negligence or omission of a State employee created the hole or that the State had actual or constructive notice of the hole a sufficient time prior to the injury to have taken measures to protect against the hole. See N.J.S.A. 59:4-2.

Finally, plaintiff contends there is no immunity under the LLA for injuries incurred while conferring a benefit upon the State. Plaintiff, however, provides no support for this argument. To the contrary, the LLA contains no exemption from the broad immunity granted to qualified landowners for persons injured while conferring a benefit upon the landowner. Equally lacking is any support for plaintiff's assertion that she was conferring a benefit upon the State by attempting to throw out her trash. Instead, she relies solely on DeVries v. Habitat for Humanity, 290 N.J. Super. 479, 481 (App. Div. 1996), aff d, DeVries v. Paterson Habitat for Humanity, 147 N.J. 619 (1997), a wholly inapposite case involving the Charitable Immunity Act, N.J.S.A. 2A:53A-7, and holding that the injured plaintiff volunteer for Habitat for Humanity was not a beneficiary of the charity. Id. at 493.

For all these reasons, the summary judgment dismissal of plaintiff's negligence complaint was proper.

Affirmed.

1 Liberty State Park, State of New Jersey, Department of Environmental Protection, Division of Parks & Forestry, and the State Park Service (collectively referred to as defendant).

2 While the LLA does not provide immunity for the willful or malicious failure to guard or warn against dangerous conditions, N.J.S.A. 2A:42A-4, the record does not contain any evidence that the State willfully or maliciously failed to warn plaintiff of the hole in the ground. See N.J.S.A. 2A:42A-4 and -7.