TERI TOMPKINS VS. COUNTY OF MERCER (L-0914-18, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5300-18T1
TERI TOMPKINS,
Plaintiff-Appellant,
v.
COUNTY OF MERCER,
and MERCER COUNTY PARK
COMMISSION,
Defendants-Respondents.
__________________________
Argued telephonically May 12, 2020 –
Decided August 12, 2020
Before Judges Hoffman and Currier.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0914-18.
Rachel E. Holt argued the cause for appellant
(Rebenack, Aronow & Mascolo, LLP, attorneys; Craig
M. Aronow, of counsel; Rachel E. Holt, on the briefs).
John K. Maloney, Assistant County Counsel, argued
the cause for respondents (Paul R. Adezio, Mercer
County Counsel, attorney; John K. Maloney, on the
brief).
PER CURIAM
Plaintiff Teri Tompkins appeals from the July 19, 2019 Law Division
order granting the summary judgment dismissal of her complaint against
defendants Mercer County Park Commission and Mercer County. We affirm.
The facts of this case are relatively simple and undisputed. On September
20, 2017, plaintiff brought her dog and grandson to the Mercer County Dog Park
for an "outing." After five minutes of playing fetch with her dog and walking
around in the dog park, plaintiff stepped into a hole, injuring her left foot.
According to her orthopedic surgeon, plaintiff sustained "[l]eft foot comminuted
oblique displaced fractures of the distal shafts of the second and third
metatarsals with superficial peroneal nerve injury," with resulting "loss of
motion and residual stiffness."
On April 30, 2018, plaintiff filed a complaint against defendants alleging
they negligently maintained their premises, causing plaintiff to suffer severe
permanent bodily injuries. On May 16, 2018, defendants filed an answer
asserting fifteen affirmative defenses.
At his deposition, Luis Reyes, the Deputy Director for the Mercer County
Park Commission's Park Rangers admitted he received complaints of holes in
the dog park. He stated Robert Doherty, the Supervisor of Mercer County Parks
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Maintenance, told him the dog park was closed on the day of plaintiff's injury
for maintenance issues. According to Reyes, there was a sign posted at the
entrance of the park stating the dog park was closed. He acknowledged the hole
at issue was a dangerous condition.
Doherty was also deposed and acknowledged the hole on the date of the
incident was a hazard to individuals visiting the dog park. He confirmed it was
the responsibility of his department to fill any holes that may appear upon
receiving notice of them. He explained his department entered the dog park
every morning, checked the area, removed trash, and provided any general
cleanup. He acknowledged he received about three to four complaints a year
concerning holes in the dog park; however, he did not recall if a person was ever
injured in the dog park because of a hole. He believed a sign indicating the dog
park was closed would have been posted a week before the day of the closure,
but acknowledged the dog park was not physically closed.
David Buxton, the director of the park rangers for the Mercer County Park
Commission, was also deposed. He explained park rangers were required to log
their daily patrols; however, the park rangers working on the day of the incident
did not indicate in their logs they patrolled the dog park.
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At the conclusion of discovery, defendants filed a motion for summary
judgment. Following oral argument, the judge granted defendants' motion and
dismissed plaintiff's complaint with prejudice. In pertinent part, the judge ruled
defendants were immune under the Landowners Liability Act 1 (LLA) because
the Mercer County Dog Park constituted a recreation facility. The judge
explained, "Assuming the facts proposed by plaintiff are true, the dog park is a
recreation facility as defined in N.J.S.A. 2A:42A-2. Therefore, defendant[s are]
immune and the case is dismissed."
This appeal followed, with plaintiff arguing "the trial court erred as a
matter of law in granting [d]efendants' motion for summary judgment as there
exists a genuine issue of material fact as to whether [d]efendants are immune
from liability under the [LLA]."
I
When reviewing an order granting summary judgment, we "employ the
same dismissal standards governing the trial court." Lee v. Brown, 232 N.J.
114, 126 (2018) (citing Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344,
349-50 (2016)). Rule 4:46-2(c) states that summary judgment should be granted
where the motion record "show[s] that there is no genuine issue as to any
1
N.J.S.A. 2A:42A-1 to -10.
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material fact challenged and that the moving party is entitled to a judgment or
order as a matter of law."
The rule also states that "[a]n issue of fact is genuine only if, considering
the burden of persuasion at trial, the evidence submitted by the parties on the
motion, together with all legitimate inferences therefrom favoring the non-
moving party, would require submission of the issue to the trier of fact." Ibid.
Furthermore, "[i]f there exists a single, unavoidable resolution of the alleged
disputed issue of fact, that issue should be considered insufficient to consti tute
a 'genuine' issue of material fact for purposes of Rule 4:46-2." Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986)).
The LLA 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). In pertinent
part, the LLA provides:
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.
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[N.J.S.A. 2A:42A-3(a) (emphasis added).]
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-3(b).]
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.]
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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.]
In Harrison, the Court considered whether the defendant water company
was immune under the LLA from liability for the death of an individual who
drowned while attempting to rescue two children, who had fallen through the
ice in a lake on the company's property. 80 N.J. at 394. At the time, the LLA
provided that an owner, lessee or occupant of premises, whether or not posted
pursuant to N.J.S.A. 23:7-7, owed no duty to keep the premises safe or to warn
of a dangerous condition when entered or used by others for sport or recreational
purposes. Id. at 396 (citing N.J.S.A. 2A:42A-3).
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The Court stated the history of the law, and its reference to the posting
statute, indicated that "the kind of premises which the Legislature contemplated
when it enacted the [LLA] was primarily undeveloped, open and expansive rural
and semi-rural properties . . ." Id. at 400. The Court held that the LLA did not
apply in that case because the drowning occurred
on an improved tract situated in a highly populated
suburban community. It is surrounded by both private
homes as well as public recreational facilities. It is
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. In contrast, the
reservoir area here lies in a populous setting where such
factors are less substantial.
[Id. at 401-02.]
In Toogood v. St. Andrews Condominium Ass'n, we considered whether
the LLA applied in a case where the plaintiff was injured while rollerblading on
a road in a residential condominium development. 313 N.J. Super. 418, 420
(App. Div. 1998). We noted the Court in Harrison determined the Legislature
intended to provide immunity to owners of "primarily undeveloped, open and
expansive rural and semi-rural tracts of land." Id. at 423.
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We additionally noted that, after the Harrison decision, the Legislature
amended N.J.S.A. 2A:42A-3 and provided that the immunity applied with regard
to activities on land, whether in a natural or improved state or whether the land
is the site of a commercial enterprise. Id. at 424. We observed that the 1991
amendments were enacted in response to our decision in Whitney v. Jersey
Central Power & Light Co., 240 N.J. Super. 420 (App. Div. 1990), where we
held that the LLA did not apply to a former railroad right of way in a State
wildlife preserve, which had been converted to a roadway and used to gain
access to power lines. Ibid.
We said the purpose of the 1991 amendments "was not to expand the scope
of the premises subject to the Act but to enhance and remove impediments to
the immunity already afforded to rural and semi-rural tracts of land." Id. at 425.
We additionally noted, "The 1991 amendments to the act are 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." Id. at 425-26.
II
As a threshold matter, it is well-settled that public entities such as Mercer
County Park Commission and Mercer County can be covered by the LLA.
Trimblett v. State, 156 N.J. Super. 291, 294-95 (App. Div. 1977) (State covered
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by LLA in wrongful death claim arising out of boating accident at State-owned
Round Valley Reservoir). 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. 59:2-1(b). Consequently, the State enjoys the same protections under
the LLA that are available to private property owners. Trimblett, 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).
Plaintiff argues defendants cannot benefit from LLA immunity because
the activity plaintiff was engaged in at the time of her injury was "not the type
of 'sports and recreational activity' contemplated by the LLA." Plaintiff
contends immunity is only provided to activities, which "require the injured
individual to have some . . . level of physical interaction with or on the
premises."
Plaintiff relies on Villanova v. American Fed'n of Musicians, Local 16,
123 N.J. Super. 57 (App. Div. 1973), where we addressed whether a county park
commission was immune from liability to a musician who was injured while
working at a free public concert at the park. We explained:
Generally speaking, the activities specifically
enumerated by the Legislature are more physical than
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not; are of a nature for the most part typically requiring
the outdoors; and are not on the whole "spectator
sports," but rather activities in which the individual
using the land is himself involved. The statute thus
viewed, it appears to us that in the particular
circumstances of the case before us . . . the Legislature
did not intend the immunity provided by this statute to
apply.
[Id. at 59.]
In Villanova, the plaintiff was employed to perform music and therefore
was not using the land in a recreational manner, but rather intended to use the
land for employment purposes. In contrast, here plaintiff was not working;
instead, she was using the dog park by walking her dog on the premises, playing
catch with her dog, and enjoying the dog park with her grandson. All her actions
were voluntary and she was not compensated. We are satisfied that our
Villanova decision does not support plaintiff's position.
In the same vein, while the statute enumerated a number of activities it
deemed recreational, the breath of the LLA is broad, permitting numerous
unenumerated activates that also encompass recreational activities. For
example, the liberal construction provision added in 1991, along with other
amendments, "focus the inquiry on the dominant character of the land and . . .
account for the evolving types of activities considered recreational pursuits."
Toogood, 313 N.J. Super. at 425-26. Therefore, it is clear that bringing a dog
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and grandchild to a dog park for an outing constitutes recreational activity.
Also, the Legislature specifically listed "dog training" as a recreational activity,
which falls right in line with plaintiff playing fetch with her dog.
Plaintiff contends the judge erred because she was in a dog park, which is
not the type of land where LLA immunity applies. She claims the dog park is
in a residential area. Additionally, plaintiff argues the intent of the LLA applies
only to properties that "could not possibly be adequately maintained and
render[ed] safe"; here, the Supervisor of Mercer County Parks Maintenance
confirmed that it was the responsibility of his department to fill the holes as soon
as he received notice of them.
Notably, the text of the LLA does not define the "premises" to which it
applies. Toogood, 313 N.J. Super. at 422. However, courts interpreting the Act
have held that it does not apply to land located "in residential and populated
neighborhoods," Harrison, 80 N.J. at 397 (1979), but was intended to provide
immunity for "undeveloped, open and expansive rural and semi-rural
properties." Id. at 400.
The statute was amended in 1991 to clarify that the Act applies to such
rural or semi-rural land "whether or not improved or maintained in a natural
condition." Toogood, 313 N.J. Super. at 423. The amendment specifically
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states, "It 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." Toogood, 313 N.J. Super. at 425 (quoting N.J.S.A.
2A:42A-2).
In Weber v. United States, the federal district court held that the LLA
applied to a thirty-five-acre park in Fort Dix containing "swing sets, picnic
tables, barbeques, park benches, basketball courts, a large pond and a pavilion."
991 F. Supp. 694, 695 (D.N.J. 1998). The park was a large open-area on the
military reservation, which the general public was permitted to use for
recreational purposes. The plaintiff fell from a swing set in the park and suffered
injuries. Ibid.
Plaintiff also cites Benjamin v. Corcoran, where a dog bit a child while
sledding at the New Jersey's Fireman Home (the Fireman's Home), an "improved
tract of land in a populated suburban area." 268 N.J. Super. 517, 531 (App. Div.
1993). An employee of the Fireman's Home who lived in a house on the property
owned the dog. In reasoning that the Fireman's Home was not a covered
premise, the Benjamin court described its grounds and surroundings:
The grounds of the [Fireman's Home] are surrounded
by residential lots. On the grounds there were several
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buildings, including the [Fireman's Home's]
administrative building and main building, two houses,
and a barn. The location where [the child] was sleigh
riding when he was attacked was near the structures and
driveway, and only 100 to 150 feet from the Corcoran's
house. The land was not located in a rural or woodland
area.
[Ibid.]
In our view, the LLA did not apply to such "developed land in a populated
suburban area." Id. at 532.
Based on our analysis in Benjamin, we conclude the dog park must be
considered in the larger context of the Mercer County Park when determining
the dominant character of land; however, we conclude that Benjamin is factually
distinguishable, and its reasoning leads to a finding that the dog park is a covered
premise. Unlike the land in Benjamin, the dog park is not located in a suburban
area. To the contrary, the dog park is within a much larger park that includes
2500 acres. Only minimal residential areas surround the Mercer County Park.
In Weber, we held that the LLA applied to a thirty-five-acre park. The
park was large and open to the public for recreational activities. In this case,
the Mercer County Park is a public park, roughly 2500 acres in size, containing
the dog park within it. The park also contains seven softball fields, two baseball
fields, twelve basketball courts, twenty-seven tennis courts, eleven soccer fields,
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a boathouse, a lake, an ice rink and numerous hiking and jogging trails. The
park also includes Mercer Lake, the Van Nest Wildlife Refuge, Mercer County
Community College, some residences, and a golf course.
While the park has some residential housing adjacent to it, the park is not
situated in a residential development, as in Toogood, and is similarly unlike the
pond in Harrison, where the Court found the pond was situated in a highly
populated suburban community. Plaintiff's reliance on Harrison is also
misplaced because Harrison predates the 1991 amendments that mandated a
liberal construction of the statute.
The 1991 amendment to the Act makes clear that it applies to improved
land. N.J.S.A. 2A:42A-3(a). This result is consistent with Weber as well as
other decisions applying the LLA. See e.g., Nazzaro v. United States, 304
F. Supp. 2d at 605, 607 (D.N.J. 2004) (applying LLA to an obstacle course in a
wooded area located in Fort Dix). Therefore, the park itself has very similar
characteristics to Weber, and thus we hold is the type of land covered under the
LLA.
Plaintiff also argues that defendants willfully failed to guard against the
dangerous condition. Plaintiff relies on Krevics v. Ayars, 141 N.J. Super. 511
(Law Div. 1976). As previously noted, the LLA does not shield landowners
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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.]
The LLA does not define "malicious" or "willful." In Krevics, while not
attempting to define the terms, the court denied the defendant's motion for
summary judgment in the face of evidence that the defendant "caused or
consented to the placement of a cable across the motorbike trail" that had been
used for several years on his eleven 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. The plaintiff came in contact with the cable and suffered
serious injuries. Ibid. The court found that the LLA did not protect the
defendant because "[t]he hazardous condition was created by [the] defendant.
The erection of the cable was certainly a willful act. In view of [the] defendant's
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knowledge of the use of the motorbike trail, and considering the type of hazard
erected, [the] defendant's action may even be construed as malicious." Id. at
516.
Applying the definitions suggested by the court in Krevics, we see no
basis in the record to find that defendants acted maliciously or willfully in failing
to warn about the hole, or to guard against the danger that it posed. At most,
plaintiff presents circumstantial evidence that defendants, in the course of
attempting to close the park for ongoing maintenance, was on notice that the
hole existed. Yet, that falls far short of the necessary showing of will fulness or
malice.
In a large park, there are numerous dangerous conditions, natural and
manmade, known and unknown, that the park employees realistically cannot
immediately address because of competing demands on State resources.
Therefore, unlike Krevics, where a cable was deliberately placed across a
motorbike path, here, a hole in a dog park that went undetected and unfilled does
not constitute willful or malicious activity.
Because we find defendants have immunity from liability under the LLA,
defendants are also immune from claims under the TCA. See N.J.S.A. 59:2-1(b)
(a public entity's liability is subject to any immunity the entity may have);
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Rochinsky v. State of N.J. Dep't of Transp., 110 N.J. 399, 409 (1988) (holding
that under N.J.S.A. 59:2-1(b), common law and statutory immunities not
contained in the TCA prevail over the TCA's liability provisions).
Any arguments not specifically addressed lack sufficient merit to warrant
discussion in a written opinion. Rule 2:11-3(e)(1)(E).
Affirmed.
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