Andris Arias v. County of Bergen ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2574-22
ANDRIS ARIAS,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
July 17, 2024
v.
APPELLATE DIVISION
COUNTY OF BERGEN,
Defendant-Respondent.
_________________________
Argued on April 30, 2024 – Decided June 14, 2024
Before Judges Mayer, Paganelli and Augostini.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-6633-22.
Alex S. Capozzi argued the cause for appellant (Brach
Eichler, LLC, attorneys; Alex S. Capozzi, on the
briefs).
David Mateen, Assistant County Counsel, argued the
cause for respondent (Thomas J. Duch, Bergen County
Counsel, attorney; David Mateen, on the brief).
Tyrone Frederick Sergio argued the cause for amicus
curiae New Jersey Association for Justice (Britcher,
Leone & Sergio, LLC, attorneys; E. Drew Britcher, on
the brief).
The opinion of the court was delivered by
MAYER, P.J.A.D.
Plaintiff Andris Arias appeals from a March 20, 2023 order dismissing her
complaint against defendant County of Bergen (Bergen) without prejudice. We
affirm.
We recite the facts from the motion record. On April 24, 2021, plaintiff
fell in a hole while rollerblading on a paved pedestrian pathway in Van Saun
County Park (Park). The Park, established in 1960, 1 consists of 130 acres of
land in Paramus. It provides recreational amenities free of charge to the public,
including athletic fields, catch-and-release fishing, bicycling and walking paths,
and picnic facilities.
On December 13, 2022, plaintiff filed a complaint against the County,
alleging negligence and seeking damages for injuries she suffered from her fall. 2
About a month later, in lieu of filing an answer, the County filed a motion to
dismiss the complaint for failure to state a claim under Rule 4:6-2(e). The
County asserted immunity under the Landowners Liability Act (LLA), N.J.S.A.
2A:42A-2 to -10. The County argued the LLA "bar[red] plaintiff's claim for
negligence" because: (1) the County was presumptively entitled to immunity;
1
We take judicial notice of the Park's establishment in 1960. See N.J.R.E.
201(b)(2).
2
After the County filed its motion to dismiss, plaintiff amended her complaint
and included a photograph depicting the hole where she fell.
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and (2) "there [were] no facts alleged in [plaintiff's] complaint that [her] injury
was caused by [the County's] willful or malicious conduct."
In opposing the County's motion, plaintiff argued the LLA was intended
"to apply to rural and semi-rural tracts of land" and "was never intended to apply
to residential and suburban neighborhoods." Because the Park contained
"buildings, structures, [and] amenities" within a "densely populated suburban
neighborhood . . . surrounded by residential housing," plaintiff asserted the
County was not entitled to immunity under the LLA.
The judge entered a March 20, 2023 order granting the County's motion
and dismissing plaintiff's complaint without prejudice for failure to state a claim.
In his decision, placed on the record on that same date, the judge explained:
Plaintiff's contention that the [LLA] does not apply
because Paramus is densely populated and because the
[P]ark is surrounded by residential areas . . . is not
persuasive. Plaintiff was . . . not injured in a residential
area. She was injured in a . . . large 130-acre County
park. There's no reason why the [LLA] would not apply
to this County park.
Plaintiff's contention that the [LLA] does not apply
because there are buildings in the [P]ark is inconsistent
with the statute. The [LLA] expressly provides that it
applies even if the premises [are] improved.
The judge concluded, "[t]o the extent courts have read into [the LLA] certain
limitations relating to urban or residential areas, those limitations have no
application here."
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The judge further found plaintiff's complaint "d[id] not allege that the
County may be held liable for willful or malicious failure to guard or warn
against the dangerous condition and certainly d[id] not allege any facts that
could support such a [conclusion]." The judge observed the photograph annexed
to plaintiff's amended complaint "appear[ed] to [depict] an area where the
asphalt was worn away over time . . . and, arguably, in need of repair." However,
the judge found "no basis to conclude that the County created [that] condition."
Regarding dismissal of plaintiff's complaint without prejudice, the judge
stated:
Based on the allegations of [her] complaint, [] plaintiff
has no basis to allege willful or malicious conduct that
would create an exception to immunity under the
[LLA].
....
[][P]laintiff may seek leave to file an amended
complaint within [forty-five] days if there's a good faith
basis to do so. But under the circumstances and based
on what I've seen so far, I'm not giving [] plaintiff leave
to—to file an amended complaint. [] [P]laintiff . . . can
move for leave to file an amended complaint. I want
the County to be able to take a look at that and
potentially oppose the motion if . . . appropriate.
On appeal, plaintiff contends the judge erred in finding the County entitled
to immunity under the LLA. She asserts the Park is located in a densely
populated residential area and therefore ineligible for immunity under Harrison
A-2574-22
4
v. Middlesex Water Co., 80 N.J. 391 (1979). 3 Further, plaintiff contends the
judge erred in dismissing her complaint because discovery was incomplete.
Plaintiff argues the judge considered evidence beyond the pleadings and
converted the County's motion to dismiss to a motion for summary judgment.
We reject these arguments.
We recite the well-settled case law governing our review of motions to
dismiss. "Rule 4:6-2(e) motions to dismiss for failure to state a claim upon
which relief can be granted are reviewed de novo." Baskin v. P.C. Richard &
Son, LLC, 246 N.J. 157, 171 (2021) (citing Dimitrakopoulos v. Borrus, Goldin,
Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019)). In considering
a motion under Rule 4:6-2(e), "[a] reviewing court must examine 'the legal
sufficiency of the facts alleged on the face of the complaint,' giving the plaintiff
the benefit of 'every reasonable inference of fact.'" Id. at 171 (quoting
Dimitrakopoulos, 237 N.J. at 107). The test for determining the adequacy of a
pleading is "whether a cause of action is 'suggested' by the facts." Printing Mart-
Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (quoting Velantzas
v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). However, if a trial court
3
In a September 28, 2023 order, we allowed the New Jersey Association for
Justice (NJAJ) to appear as amicus curiae and participate in oral argument.
NJAJ joins in plaintiff's argument that the County is not entitled to immunity
under the LLA. In addition, NJAJ claims application of the LLA in this case,
and similar cases, "sets a dangerous precedent."
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"considers evidence beyond the pleadings in a Rule 4:6-2(e) motion, that motion
becomes a motion for summary judgment, and the court applies the standard of
Rule 4:46." Dimitrakopoulos, 237 N.J. at 107.
We review a trial court's grant or denial of a motion for summary judgment
de novo, "applying the same standard used by the trial court." Samolyk v.
Berthe, 251 N.J. 73, 78 (2022). We consider "whether the competent evidential
materials presented, when viewed in the light most favorable to the non-moving
party, are sufficient to permit a rational factfinder to resolve the alleged disputed
issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995).
Additionally, we apply de novo review of a trial court's interpretation of
a statute or court rule. Kocanowski v. Twp. of Bridgewater, 237 N.J. 3, 9 (2019);
State v. Dickerson, 232 N.J. 2, 17 (2018).
We first address plaintiff's claim that the judge erred in determining the
County was entitled to immunity under the LLA.
The LLA provides certain owners, lessees, and occupants of property owe
no duty to persons injured while using such property for recreational activities
and are immune from suit. N.J.S.A. 2A:42A-3. Specifically, the LLA states:
Except as provided in [N.J.S.A. 2A:42A-4]:
a. An owner, lessee or occupant of premises, whether
or not posted as provided in section 23:7-7 of the
A-2574-22
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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 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-3(a).]
It is well established that this immunity is available to public entities.
Trimblett v. State, 156 N.J. Super. 291, 295 (App. Div. 1977). However,
immunity is unavailable to persons or entities under the following
circumstances:
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; or
c. For injury caused, by acts of persons to whom
permission to engage in sport or recreational activity
was granted, to other persons as to whom the person
granting permission, or the owner, lessee or
occupant of the premises, owes a duty to keep the
premises safe or to warn of danger.
[N.J.S.A. 2A:42A-4.]
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The LLA defines "[s]port and recreational activities" to include "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 of
these activities." N.J.S.A. 2A:42A-2. The Legislature provided the LLA "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." N.J.S.A. 2A:42A-5.1. However, the LLA does not define the term
"premises."
Plaintiff argues the County is not entitled to immunity under the LLA
because the Park, located in a residential, suburban neighborhood and generally
accessible to the public, does not qualify as "premises" under the four-factor test
in Harrison. She contends the judge "applied an overbroad and incorrect
interpretation of the term 'premises' . . . that was inconsistent with the intent of
the [L]egislature."
The County counters the LLA affords "broad protections . . . to owners,
lessees and occupants of property" and asserts the "focus of the inquiry is on the
dominant character of the land." The County contends the Park, a property
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containing "recreational lands," is "exactly the type of premises the LLA was
created to protect."
We review the history leading to the enactment of the current version of
the LLA. In 1962, our Legislature enacted the LLA's predecessor statute (1962
statute), entitled "An Act limiting the liability of landowners of agricultural
lands or woodlands for personal injuries to or the death of any person while
hunting or fishing upon the landowner's property." L. 1962, c. 107 (codified at
N.J.S.A. 2A:42A-1 and repealed by L. 1968, c. 73, § 4). The 1962 statute
provided:
1. No landowner of agricultural lands or woodlands
shall be liable for the payment of damages suffered
resulting from any personal injury to, or the death
of, any person, while such person was hunting or
fishing upon the landowner's property, except that
such injury or deaths resulted from a deliberate or
willful act on the part of such landowner.
[Ibid.]
The 1962 statute "was intended specifically to apply to owners of rural or
semi-rural lands, pointedly, agricultural and wooded tracts." Harrison, 80 N.J.
at 398-99. Because the owners of these lands were unable "to control
trespassers, or even to accord reasonable safeguards to invitees, who hunted and
fished on their property," the 1962 statute was designed to "protect such property
owners otherwise unable to protect themselves." Id. at 399.
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In 1968, the Legislature enacted the LLA, repealing and replacing the
1962 statute (1968 LLA). L. 1968, c. 73 (codified at N.J.S.A. 2A:42A-2 to -5).
The 1968 LLA provided:
2. Except as provided in section 3 of this act:
a. An owner, lessee or occupant of premises, whether
or not posted as provided in section 23:7-7 of the
Revised Statutes, 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[.]
....
3. 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 . . . .
[L. 1968, c. 73 § 2-3 (codified at N.J.S.A. 2A:42A-3 to
-4).]
Our New Jersey Supreme Court first reviewed the LLA in Boileau v. De
Cecco, 65 N.J. 234 (1974). In that case, the plaintiff, who was invited to swim
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in the defendant's backyard pool, "dove into the shallow end of the pool,
fractured his neck and eventually died of the injuries sustained." Boileau v. De
Cecco, 125 N.J. Super. 263, 265 (App. Div. 1973). The defendant claimed
immunity under the 1968 LLA. Ibid.In our decision, we concluded "the legislative change of the term
'agricultural lands or woodlands' to 'premises' was not intended to enlarge the
protected class of landowners to homeowners in suburbia." Boileau, 125 N.J.
Super. at 267. Rather, we explained the change in the statute "was intended to
better define, and perhaps somewhat broaden, the protected class originally
specified." Ibid. Under the facts presented in Boileau, because the defendant
owned an individual suburban home rather than a large tract of open land
available for use by the public, we determined "the statute [did] not confer
immunity upon [the] defendant from [the] plaintiff's claim." Id. at 268. The
Court affirmed our decision without opinion. Boileau, 65 N.J. at 234.
In 1979, the Court revisited the 1968 LLA in Harrison. In that case, the
plaintiff's decedent drowned in a reservoir owned by the defendant "while
attempting to rescue two . . . boys who had fallen through the ice while skating."
Harrison, 80 N.J. at 394-95. The defendant's 136-acre property, which consisted
of a ninety-four-acre reservoir and forty-two acres of surrounding land, was
"situated in an area zoned for residential use" which had "become heavily
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populated," with the property itself "bounded by a regional high school, several
athletic fields, a tennis court, two social clubs and a number of private homes
whose rear lots extend[ed] almost to the edge of the lake." Id. at 394. "The
greater part of [the] property [was] unfenced, with the result that the lands ha[d]
been openly accessible to and used freely and frequently by the public ." Ibid.The defendant claimed immunity under the 1968 LLA, and the Court granted
certification to determine whether immunity applied to "the owners or occupiers
of land situate[d] . . . in residential and populated neighborhoods." Id. at 397.
The Court held the 1968 LLA did not "depart from the purpose and policy"
of the 1962 statute. Id. at 399. The Court determined the "premises which the
Legislature contemplated when it enacted the [LLA were] primarily
undeveloped, open and expansive rural and semi-rural properties where hunting,
fishing and trapping might be expected to take place." Id. at 400.
The Court supported its conclusion by referring to the 1968 LLA's
"specific inclusion of horseback riding, skiing and tobogganing, in addition to
other 'outdoor sport, game and recreational activity,'" which "can be
accommodated, under normal conditions, only upon large sized tracts of rural or
semi-rural lands, or other lands having similar characteristics." Ibid. (emphasis
added) (quoting N.J.S.A. 2A:42A-2 (1968)). As the Court explained:
Owners of such properties would have difficulty in
defending their lands from trespassers or, indeed, even
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in taking precautions to render them safe for invited
persons, engaging in these kinds of energetic outdoor
activities. The public policy to afford these property
owners a modicum of protection from tort liability may
be thought of as one which would encourage such
owners to keep their lands in a natural, open and
environmentally wholesome state. This is an important
policy in view of the substantial and seemingly
relentless shrinkage and disappearance of such land
areas from the face of our State. It is a concern well
known to the Legislature and the preservation of such
lands is very much an integral part of our governmental
and public policy. This purpose was assuredly intended
to be served by the Legislature in structuring the current
[LLA].
[Id. at 400 (citations omitted).]
The Court stated the 1968 LLA "would clearly go beyond these goals were it
construed to grant a blanket immunity to all property owners, particularly to
those owning lands in densely populated urban or suburban areas, without regard
to the characteristics of their properties." Id. at 400-01 (emphasis added).
The Harrison Court declined to "immuniz[e] . . . all landholders from
liability for injuries incurred during the course of outdoor recreational activity
on their property, particularly with respect to improved lands freely used by the
general public located in populated neighborhoods in urban or suburban areas."
Id. at 401. When considering immunity under the 1968 LLA, the Court stated a
reviewing court must consider "the use for which the land is zoned, the nature
of the community in which it is located, its relative isolation from densely
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populated neighborhoods, [and] its general accessibility to the public at large."
Ibid.Specifically, the Court determined the defendant's property, "an improved
tract situated in a highly populated suburban community . . . [and] surrounded
by both private homes as well as public recreational facilities," was "unlike lands
located in rural or woodland reaches where the activities of people thereon
cannot be supervised or controlled and where the burden of guarding against
intermittent trespassers may far outweigh any risk to such persons and the
presence of such persons may be difficult to foresee and contain." Id. at 401-
02. Under those circumstances, the Court held the defendant was not entitled to
immunity under the 1968 LLA. Id. at 402.
Plaintiff relies heavily on Harrison in support of her argument that the
County is not entitled to immunity. However, her argument overlooks some of
the Court's pronouncements concerning the application of immunity under the
1968 LLA. For instance, the Harrison Court noted the 1968 LLA's immunity
could be applied to recreational activities conducted not just "upon large sized
tracts of rural or semi-rural lands," but also upon "other lands having similar
characteristics." Id. at 400. The Harrison Court also explained the reason the
LLA afforded protection from tort liability for certain premises was to
"encourage such owners to keep their lands in a natural, open and
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environmentally wholesome state" and represented "an important policy in view
of the substantial and seemingly relentless shrinkage and disappearance of such
land areas from the face of our State." Ibid. As the Harrison Court noted, the
protection of open space was "a concern well known to the Legislature and the
preservation of such lands [was] very much an integral part of our governmental
and public policy. Th[at] purpose was assuredly intended to be served by the
Legislature in structuring the [1968 LLA]." Ibid. (citations omitted).
Eleven years after Harrison, we considered the 1968 LLA in Whitney v.
Jersey Central Power & Light Co., 240 N.J. Super. 420 (App. Div. 1990). In
that case, the plaintiff's decedent was killed while driving an all-terrain vehicle
along a former railroad right of way in a wildlife preserve. Id. at 422. The
defendant converted the right of way into a "smooth, flat, straight" roadway
"partially covered by cinders" and "frequently used by [the defendant's]
employees to maintain its electric transmission lines." Id. at 424.
We held the property in Whitney was "significantly different . . . from
large expanses of farmland or forest," such that "it would have been quite
feasible . . . to determine the existence of [a] dangerous condition and . . .
take . . . appropriate action to prevent the occurrence of accidents." Ibid. We
noted "the policy . . . to encourage the owners of undeveloped land 'to keep their
lands in a natural, open and environmentally wholesome state' would not be
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advanced by extending immunity to a maintained roadway used in the conduct
of a commercial enterprise." Id. at 425 (citation omitted) (quoting Harrison, 80
N.J. at 400). Thus, we declined to grant immunity to the defendant, concluding
the property was "not the kind of premises to which the [1968 LLA] was
intended to apply." Ibid.In 1991, the Legislature amended the 1968 LLA (1991 LLA amendment).
L. 1991, c. 496. The 1991 LLA amendment read:
An owner, lessee or occupant of premises, 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 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[.]
[Id. at § 2.]
In addition, the 1991 LLA amendment expanded the definition of "sport
and recreational activities" to include the operation and use of snowmobiles, all-
terrain vehicles, and dirt bikes. Id. at § 1. Further, the 1991 LLA amendment
added a new provision, N.J.S.A. 2A:42A-5.1, which read: "The provisions of
[the LLA] 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
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fear of liability, to permit persons to come onto their property for sport and
recreational activities." Id. at § 3.
The Assembly Judiciary, Law and Public Safety Committee Statement to
the 1991 LLA amendment stated:
The bill provides that the duty to keep the property safe
as provided for in N.J.S.A. 2A:42A-3 applies whether
the property is in a natural or improved state or whether
there is a commercial enterprise on the property. . . .
The bill indicates that the provisions shall be liberally
construed to serve as an inducement to permit persons
to use the property for recreational activities.
[Assemb. L. & Pub. Safety Comm. Statement to A.
4678 (Dec. 5, 1991).]
Following the 1991 LLA amendment, we revisited the LLA in Benjamin
v. Corcoran, 268 N.J. Super. 517 (App. Div. 1993). In that case, the plaintiff
suffered an injury while sleigh riding on the grounds of a nursing home located
"in a populated suburban area." Id. at 519, 531. Citing Harrison's finding that
"the [LLA] should be given narrow range," we declined to apply immunity
because the LLA "ha[d] no application to improved lands which [were] located
in a populated suburban area." Id. at 529, 531.
We next considered LLA immunity in Toogood v. St. Andrews at Valley
Brook Condominium Association, 313 N.J. Super. 418 (App. Div. 1998). In that
case, the plaintiff sued the defendants as a result of a fall while rollerblading in
a residential condominium development. Id. at 420. The defendants sought
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immunity under the LLA, arguing the 1991 LLA amendment "effectuated a
broad extension of landowner immunity to owners and occupiers of suburban
property." Id. at 421-22. In considering this argument, we noted:
Since 1962, some form of immunity for landowners has
been recognized by statute. At no time has the
Legislature defined the term "premises." The
Legislature is deemed knowledgeable of judicial
interpretations of its enactments. Its failure to disagree
with the long-standing judicial interpretation of the
term and its consequent limitation of the scope of the
immunity afforded by the [LLA] are powerful evidence
that the Legislature agrees with the interpretation of
"premises" offered by the [Harrison] Court.
[Id. at 423.]
We concluded the 1991 LLA amendment to N.J.S.A. 2A:42A-3 was enacted "in
direct response" to Whitney, explaining "[a]n examination of the language added
. . . reveals that it tracks the reasons utilized by this court to deny immunity" in
that case. Id. at 424.
We also rejected the defendants' argument that N.J.S.A. 2A:42A-5.1
extended immunity to suburban homeowners. Id. at 425-26. As we explained:
[N.J.S.A. 2A:42A-5.1] is part of the general
amendments to the [LLA] in reaction to Whitney and
must be read in that context. Whitney was a case which
unnecessarily restricted the immunity afforded to
landowners of rural and semi-rural or open tracts of
land by focusing on the activity and the presence or
absence of improvements on the rural or semi-rural land
. . . . Nothing in the language of the [LLA] or its
legislative history suggests these amendments were
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intended to radically alter the law of premises liability
by extending immunity to suburban or urban
landowners.
[Ibid.]
As we held in Toogood, the 1991 LLA amendment was "clearly designed
to focus the inquiry on the dominant character of the land and to account for the
evolving types of activities considered recreational pursuits." Ibid. (emphasis
added). We explained the LLA, "as amended, does not immunize the owners
and occupiers of suburban residential property." Id. at 426. It follows that the
proper inquiry for determining whether a property is entitled to immunity under
the 1991 LLA amendment requires an analysis of the prevailing character of the
land where the plaintiff suffered injury. See id. at 425-26.
One year after Toogood, we again examined the LLA in Mancuso ex rel.
Mancuso v. Klose, 322 N.J. Super. 289 (App. Div. 1999). In that case, the
plaintiff suffered an injury running across the defendant neighbor's yard. Id. at
293-94. The defendant asserted immunity under the LLA because the property,
"situated on one acre" with "a wishing well and a pond," was located "in a semi-
rural area." Id. at 295, 297. We rejected the defendant's argument and affirmed
the trial court's decision "that immunity . . . [does] not extend to landowners . .
. whose property is located in residential and populated neighborhoods even if
those neighborhoods [are] part of a larger undeveloped, open, and expansive
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rural and semi-rural area[]." Id. at 295. Although we declined to extend
immunity in Mancuso, we did not conduct a "dominant character" of the land
analysis under Toogood.
Since our decision in Mancuso, there have been several unpublished
Appellate Division decisions analyzing the application of the 1991 LLA
amendment. However, there is no published case clarifying the test for
determining whether a "premises" is immune from suit under the LLA. We take
the opportunity to elucidate the test for applying LLA immunity to property used
by others for sport and recreational activities.
In enacting the LLA, the Legislature made clear that outdoor sport and
recreational activities are typically accommodated upon large tracts of rural or
semi-rural lands, "or other lands having similar characteristics." Harrison, 80
N.J. at 400. Since the Court's decision in Harrison, more than forty years ago,
it is axiomatic that New Jersey's open spaces are diminishing rapidly.
Given that undeveloped land in this State is dwindling, by enacting the
1991 LLA amendment, the Legislature recognized a need to maintain open land
for the public's enjoyment. New Jersey residents, particularly those living in
cities and other densely populated communities, have limited access to nearby
land for recreational and sport activities. Considering the density of
development in this State, it is unlikely residents can find premises available for
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sport and recreational uses not surrounded by existing residential or commercial
development.
Plaintiff contends that if a large, park-like, open space tract of land existed
before a development boom in a particular municipality, such property would
be entitled to immunity under the LLA. However, if the municipality
subsequently approved construction of housing or other development adjacent
to that existing park-like premises, plaintiff argues the original open space tract
of land would lose its immunity. If we adopted plaintiff's argument, immunity
under the LLA would be limited to the few remaining premises in New Jersey
without any nearby housing or other development. Such an interpretation would
conflict with the Legislature's stated intent of promoting sport or recreational
activities on "lands having similar characteristics" to rural and semi-rural
property.
Moreover, plaintiff's argument focuses on the surrounding land uses rather
than the dominant character of the property where a plaintiff suffered injury.
Here, the Park is used by the public to enjoy the outdoors free of charge and thus
satisfies the Legislature's intent in enacting the 1991 LLA amendment. Given
the diminishing open tracts of land in New Jersey, we are persuaded that the
four-factor test in Harrison, a case decided twelve years prior to the 1991 LLA
amendment, is incongruous with the "dominant character" of the land analysis
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under Toogood in determining whether a specific "premises" is entitled to
immunity under the LLA.
When interpreting the language of a statute, a reviewing court "aims to
effectuate the Legislature's intent." Conforti v. Cnty. of Ocean, 255 N.J. 142,
163 (2023) (quoting W.S. v. Hildreth, 252 N.J. 506, 518 (2023)). Because
"[t]here is no more persuasive evidence of legislative intent than the words by
which the Legislature undertook to express its purpose," courts "first look to the
plain language of the statute." Ibid. (alteration in original) (quoting Perez v.
Zagami, LLC, 218 N.J. 202, 209-10 (2014)). A court must "ascribe[] to the
statutory words their ordinary meaning and significance and read[] them in
context with related provisions so as to give sense to the legislation as a whole."
Ibid. (alterations in original) (quoting Hildreth, 252 N.J. at 518).
However, if the court finds an "ambiguity in the statutory language . . .
leads to more than one plausible interpretation," it may "turn to extrinsic
evidence, including legislative history, committee reports, and
contemporaneous construction." Sanjuan v. Sch. Dist. of W. N.Y., Hudson
Cnty., 256 N.J. 369, 379 (2024) (internal quotation marks omitted) (omission in
original) (quoting DiProspero v. Penn, 183 N.J. 477, 492-93 (2005)).
Additionally, the court may consider out-of-state published judicial decisions,
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which, "although persuasive rather than binding, carry great weight." State v.
Pickett, 466 N.J. Super. 270, 316 (App. Div. 2021).
Because there is no detailed legislative history or committee report
regarding the 1991 LLA amendment, we consider published out-of-state judicial
decisions as part of our analysis.
In Pauley v. City of Circleville, the Ohio Supreme Court reviewed Ohio's
recreational use statute, which provided: "No owner, lessee, or occupant of
premises . . . [o]wes any duty to a recreational user to keep the premises safe for
entry or use . . . ." 998 N.E.2d 1083, 1087 (Ohio 2013) (quoting Ohio Rev. Code
Ann. § 1533.181(A)). As expressly defined in the Ohio statute, the Ohio
Supreme Court noted "premises" included "all privately owned lands, ways, and
waters, and any buildings and structures thereon, and all privately owned and
state-owned lands, ways, and waters leased to a private person, firm, or
organization, including any buildings and structures thereon." Ibid. (quoting
Ohio Rev. Code Ann. § 1533.18(A)).
The Ohio Supreme Court noted immunity applied where a property's
"essential character . . . fit within the intent of the statute." Pauley, 998 N.E.2d
at 1088 (quoting Miller v. City of Dayton, 537 N.E.2d 1294, 1296 (Ohio 1989)).
Because "[m]ost of the recreational activities enumerated in [the statute] are
generally conducted in . . . wide open spaces, such as parks or wilderness tracts,"
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the Ohio court explained a property must constitute "the true outdoors" and be
"held open to the public for recreational use, free of charge" to be eligible for
immunity. Id. at 1087-88 (internal quotation marks removed) (quoting Loyer v.
Buchholz, 526 N.E.2d 300, 303 (1988)).
In Boland v. Nevada Rock and Sand Co., 894 P.2d 988 (Nev. 1995), the
Nevada Supreme Court reviewed Nevada's recreational use statute. In that case,
citing the Nevada statute, the court noted:
Except as otherwise provided . . . , an owner, lessee or
occupant of premises owes no duty to keep the premises
safe for entry or use by others for crossing over to
public land, hunting, fishing, trapping, camping,
hiking, sightseeing, hang gliding, para-gliding or for
any other recreational purposes, or to give warning of
any hazardous condition, activity or use of any
structure on the premises to persons entering for those
purposes.
[Id. at 990 (quoting Nev. Rev. Stat. Ann. § 41.510(1993) (amended 1995)).]
In deciding whether to apply immunity, the Nevada Supreme Court
determined "the land where [the plaintiff was] injured must be the type of land
the legislature intended [the statute] to cover." Ibid. As that court explained:
"Although the Nevada statute does not specify what type of property is covered,
the intent of the legislature is that the property be used for recreation. Therefore,
the type of property should be rural, semi-rural, or nonresidential so that it can
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be used for recreation." Id. at 991; see also Brannan v. Nev. Rock & Sand Co.,
823 P.2d 291, 292 (Nev. 1992) (applying the statute to "open" land). 4
We are persuaded that the reasoning articulated by the Ohio Supreme
Court in Pauley and the Nevada Supreme Court in Boland in determining
landowner immunity for premises associated with sport and recreational
activities is consistent with the "dominant character" of the land analysis under
Toogood and the inquiry should not focus on the surrounding land uses.
Applying the dominant character of the land analysis for determining
whether a "premises" is entitled to immunity under the LLA promotes the LLA's
purpose 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. "
N.J.S.A. 2A:42A-5.1. Further, the dominant character of the land analysis
would be in harmony with the LLA's definition of "sport and recreational
4
Following the Nevada Supreme Court's decision in Boland, the Nevada
legislature "expanded the kinds of owners eligible for immunity from 'an owner,
lessee or occupant of premises' to 'an owner of any estate or interest in any
premises, or a lessee or an occupant of any premises.'" Abbott v. City of
Henderson, 542 P.3d 10, 13 (Nev. 2024) (quoting Assembly Bill 313, 68th
Session (Nev. 1995), codified at Nev. Rev. Stat. Ann. § 41.510 (1995)). In
Abbott, the Nevada Supreme Court held these amendments "superseded
Boland's land-type limitations holding," rendering immunity applicable "to any
premises." Ibid.A-2574-22
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activities," listing activities "which can be accommodated, under normal
conditions, only upon large sized tracts of rural or semi-rural lands, or other
lands having similar characteristics." Harrison, 80 N.J. at 400. Additionally,
the dominant character of the land analysis reconciles the 1991 LLA amendment
and the Harrison factors as applied to nonresidential, true outdoor properties,
consisting of large open tracts of land for sport and recreational use.
Here, applying the dominant character of the land analysis, it is undisputed
the Park offers the general public access to picnic areas, playgrounds, pavilions,
athletic fields, wooded areas, bicycling and walking paths, and a dog park—
without charging a fee. The Park's dominant character as an open space for sport
and recreational activities renders the Park the type of property entitled to the
protections under the LLA. On these facts, the Park is a "premises" under
N.J.S.A. 2A:42A-3(a), and the judge properly determined the County was
entitled to LLA immunity.
We next consider whether the judge converted the County's motion to
dismiss to a motion for summary judgment. Plaintiff asserts summary judgment
was premature absent an opportunity for discovery. We disagree.
If a trial court reviewing a motion to dismiss relies on materials beyond
the allegations in the complaint, the "motion [is] treated as one for summary
judgment." Lederman v. Prudential Life Ins. Co. of Am., Inc., 385 N.J. Super.
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324, 337 (App. Div. 2006); see also R. 4:6-2 (stating where "matters outside the
pleading are presented to and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as provided by [Rule]
4:46").
Here, contrary to plaintiff's assertion, the judge did not convert the
County's motion into a motion for summary judgment. Both parties submitted
material outside the pleadings in connection with the County's motion.
However, based on our review of the record, the judge did not consider material
outside the pleadings in rendering his decision.
Plaintiff's amended complaint alleged the County owned the Park, and her
injury occurred on a "pedestrian pathway" in the Park. Her amended complaint
also included a photograph of the pedestrian walkway, which depicted a long,
wide paved path surrounded by a large wooded and grassy area. In granting the
County's motion to dismiss, the judge noted the Park was available to the public
and the County maintained the Park for sports and recreational activities. He
also stated the hole depicted in plaintiff's photograph "appear[ed] to be the result
of wear and erosion." Thus, the judge's decision did not rest on matters outside
of the pleadings and he did not convert the dismissal motion into a motion for
summary judgment.
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Additionally, the judge granted the County's motion to dismiss without
prejudice in the event plaintiff sought to include additional claims against the
County or other parties alleging gross negligence, recklessness, and willful
conduct to overcome immunity under the LLA. The judge stated plaintiff would
be able to file a motion for leave to amend her complaint and assert claims that
could preclude LLA immunity.
We also reject the NJAJ's assertion that affirming the judge's decision
would "set[] a dangerous precedent." NJAJ contends application of the LLA to
the Park and similar parks will preclude deserving litigants from recovering for
injuries suffered while engaging in park activities.
Contrary to NJAJ's argument, persons suffering an injury on premises
otherwise entitled to immunity under the LLA are not without any remedy. Both
the 1968 LLA and the 1991 LLA amendment state immunity is unavailable for
"willful or malicious failure to guard, or to warn against, a dangerous condition,
use, structure[,] or activity" or where the injured person paid "to engage in sport
or recreational activity on the premises." A plaintiff who proves a "willful or
malicious failure to guard, or to warn against, a dangerous condition, use,
structure or activity" will satisfy the Legislature's express exceptions to
immunity otherwise accorded under the LLA. If NJAJ believes the exceptions
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to immunity under the current LLA should be expanded or modified, the NJAJ
may seek to address the issue legislatively.
Affirmed.
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