STEVEN OWENS v. WILLIAM GELHAUS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1301-10T4

STEVEN OWENS,

Plaintiff-Appellant,

v.

WILLIAM GELHAUS,

Defendant,

and

JERSEY SHORE BEACH AND

BOARDWALK t/a KEANSBURG

AMUSEMENTS,1

Defendant-Respondent.

_______________________________

December 28, 2011

Submitted July 19, 2011 - Decided

Before Judges Sapp-Peterson and Ashrafi.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3548-09.

Malcolm V. Carton, attorney for appellant.

Tompkins, McGuire, Wachenfeld & Barry, L.L.P., attorneys for respondent (Joseph K. Cobuzio, of counsel and on the brief; Sarah A. Ryan, on the brief).

PER CURIAM

Plaintiff appeals from the trial court order granting summary judgment dismissing his claims against defendants William Gelhaus2 and Jersey Shore Beach and Boardwalk t/a Keansburg Amusements ("Keansburg"), (collectively referred to as "defendants"), arising out of his complaint seeking damages for personal injuries he sustained following a bicycle accident on defendants' property. We affirm.

The facts, when viewed in a light most favorable to plaintiff, Brill v. Guardian Life Insurance Company of America, 142 N.J. 520, 540 (1995), disclose that plaintiff was riding his bicycle on Beachway Avenue. He intended, as he had done on approximately six other occasions during the preceding week, to cut through Keansburg Amusement Park in order to have access to a paved walkway while riding his bicycle. The walkway on which plaintiff intended to travel was accessible without cutting through the amusement park, which is privately owned and operated by Keansburg. While traversing the driveway portion of the entrance into the amusement park, plaintiff fell from his bicycle after riding into a wire cable.

Signs posted at every entrance into the amusement park indicate that bicycles are prohibited. When the amusement park is closed, defendants set up a barrier at the entrance to the parking lot every night. The barrier is created by a wire that "stretches from one post to another post. In the center of the entrance there is an empty oil drum, and it would sit on top of that oil drum as support." There are also orange cones placed at both the entrance and exit lanes.

During his deposition, plaintiff testified that the incident occurred at dusk and that although he requires glasses for distance, he was not wearing his glasses at the time he fell from his bicycle. Instead, he was wearing non-prescription sunglasses.

In seeking summary judgment, defendants urged that plaintiff was a trespasser to whom a minimal duty of care was owed, and that they had not breached their limited duty to plaintiff. The motion judge agreed and granted the motion. The judge reasoned:

[T]he plaintiff was a trespasser and not an invitee. The park was closed. And although the purpose of the park is to invite people to come and partake of the various amusements, it was closed at this time. And we're talking about an entrance to a parking lot that was guarded by cones, a cable and this large red barrel that held up the cones - - or held up the cable, excuse me.

The [c]ourt is satisfied that only a minimal duty is owed to the plaintiff in this case and all Keansburg had to do was warn of the presence of the cable and did not - - and I don't think they breached any duty there because the fact that the cable was up with the red barrel and the orange cones is indicative that the area is closed to vehicular traffic. The fact that the plaintiff is not wearing his distance glasses only adds to the problem. And it's dusk. So, it's a - - while it could be considered a dangerous condition, the [c]ourt is satisfied that it's not such that it would cause, certainly cause death. It [could] cause bodily injury, and obviously in this case it did. But it's not the type of condition that needs any further warning than what was given. And I'm satisfied that the defendant[s] did not create a condition that intentionally caused harm.

Clearly, the plaintiff, by going another [ten] yards, could have gone right past the entrance to get to the sidewalk he was trying to ultimately go to. And there was no basis for him to cut through as he did. And as such, I'm satisfied he was a trespasser and that the duty owed to him was not breached.

On appeal, plaintiff contends the motion judge engaged in improper fact-finding as to disputes that should have been resolved by a jury. In addition, plaintiff urges that his status as a trespasser or an invitee is a question of fact reserved to the jury. We reject both contentions and affirm substantially for the reasons expressed by Judge Dennis R. O'Brien in his October 1, 2010 oral opinion. We add the following comments.

[E]ven though the rules of landowners' liability predicated on the common law classifications of trespasser, licensee and invitee described in the second Restatement of Torts may provide guidance in determining whether a duty of reasonable care should be imposed in particular circumstances, cf. Vega v. Piedilato, 294 N.J. Super. 486, 501 (App. Div. 1996) [, aff'd, 154 N.J. 496 (1998)]; Boyd v. Conrail, [ 291 N.J. Super. 608 (App. Div. 1996)], this determination should ultimately turn on the factors identified in Hopkins [v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)] and applied in Brett [v. Great Am. Recreation, Inc., 144 N.J. 479 (1996)], that is, the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.

[Ocasio v. Amtrak, 299 N.J. Super. 139, 149-50 (App. Div. 1997)].

The court agreed, as defendants urged, that plaintiff was a trespasser on the amusement park premises at the time he fell from his bicycle after colliding into the cable barrier. A trespasser is defined as "a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise." Restatement (Second) of Torts 329 (1965). It is undisputed that the amusement park was closed at the time plaintiff entered onto the premises. Plaintiff presented no evidence before the motion judge that his presence on the premises was at the invitation of defendants. The question of plaintiff's legal status at the time he entered onto the property was a question of law, properly resolved by the court as that of a trespasser, because it is undisputed that his presence on the property was without right or permission from the owner. See Benedict v. Podwats, 109 N.J. Super. 402, 408 (App. Div.), aff'd, 57 N.J. 219 (1970) (holding that when the facts surrounding a person's presence on the landowner's property is not disputed, the determination of the person's legal status is a question of law for the court).

A landowner's duty owed to a trespasser is relatively slight and is simply to warn trespassers "only of artificial conditions on the property that pose a risk of death or serious bodily harm." Hopkins, supra, 132 N.J. at 434. Further, it is only where the presence of the trespasser is foreseeable that a landowner may owe a higher duty of care to the trespasser. Bret, supra, 144 N.J. at 508-09. Additionally, even when a trespasser's presence satisfies the foreseeability test, "considerations of fairness and policy govern whether the imposition of a duty is warranted." Olivio v. Owens-Illinois, Inc., 186 N.J. 394, 403 (2006). Whether a duty is to be imposed upon a party is a question of law for the court. Clohesy v. Food Circus Supermarkets, 149 N.J. 496, 502 (1997). It is only the breach of that duty that is submitted to the jury for resolution. Ibid.

Here, not only are bicycles prohibited on the premises at any time, defendants erected a conspicuous barrier to entry onto the premises at closing time: the orange cones, cable, and oil drum. That plaintiff contends he never saw the signs prohibiting bicycles onto the property is of no moment because there was no evidence before the motion judge that the posted signs were other than conspicuous to the reasonable observer. There is no requirement that a landowner take action guaranteed to provide notice to those who enter upon the land without right or permission to do so. See Boyd by Boyd v. Conrail, 291 N.J. Super. 608, 614 (App. Div. 1996) (stating that a landowner only owes a duty to a trespasser to refrain from acts willfully injurious). The limited duty owed to a trespasser requires reasonable conduct designed only to provide notice of artificial conditions. Ibid. Here, defendants provided that notice by placing orange cones, wire cable that stretched from one post to another post positioned on the driveway, and the empty oil drum in the center of the driveway, which supported the cable.

Nor are we persuaded that plaintiff's testimony that on approximately six occasions in the one week preceding his fall, he traveled the same route, is sufficient evidence warranting submission to the jury as to whether defendants acquiesced to his presence onto the property. In order to submit a landowner's acquiescence to a trespasser's entry onto the property, a plaintiff is required to make a threshold showing that persons "constantly and persistently" trespassed onto the property. Imre v. Riegel Paper Corp., 24 N.J. 438, 448-49 (1957). Apart from the six occasions not raising a factual issue of constant and persistent trespassing, there is no evidence that defendants were aware of plaintiff traversing its property with his bicycle on any of those six occasions, and plaintiff failed to present any other evidence indicative of constant and persistent use.

1 Improperly pled as Jersey Shore Beach and Boardwalk, Inc.

2 Also spelled Gilhaus and Gehlhaus in the record. Although the October 1, 2010 order being appealed from grants summary judgment to both defendants, and although the defense appellate brief lists William Gelhaus as a respondent, he was dismissed from the case with prejudice via a stipulation signed by both counsel in August 2010.