Immunity Under the Landowners Liability Act

Arias v. County of Bergen, ___ N.J. Super. ___ (App. Div. 2024). This was a personal injury case. Plaintiff fell in a hole and sustained injuries while rollerblading on a paved pathway in a county park in Paramus. The park, consisting of 130 acres, “provides recreational amenities free of charge to the public, including athletic fields, catch-and-release fishing, bicycling and walking paths, and picnic facilities,” as Judge Mayer summarized in her opinion for the Appellate Division yesterday.

Plaintiff sued the County of Bergen for negligence. The County moved to dismiss, asserting that it had immunity under the Landowners Liability Act, N.J.S.A. 2A:42A-2 et seq. (“LLA”), and that there was no evidence that plaintiff’s injuries were caused by any willful or malicious conduct. The Law Division granted the motion, plaintiff appealed, and the Appellate Division affirmed.

The panel applied de novo review. Judge Mayer carefully identified three aspects of the appeal that called for that level of review. First, she cited cases stating that rulings on motions to dismiss receive de novo review. Second, she noted that one of plaintiff’s claims was that the Law Division had “considered evidence beyond the pleadings and converted the County’s motion to dismiss to a motion for summary judgment.” and that (although the panel ultimately rejected that contention, as discussed below) a court reviewing a summary judgment applies the same standard as governs trial courts on such motions, without deference to the trial court’s ruling. Finally, Judge Mayer rightly observed that a trial court’s interpretation of a statute receives de novo review.

N.J.S.A. 2A:42A-3(a), the immunity section of 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 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[.]” The one exception in N.J.S.A. 2A:42-4 that might have applied here deprives a landowner of immunity if there is “willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity.”

Judge Mayer noted that the LLA contains a broad definition of “sport and recreational activities,” which plainly encompassed activities of the sort that the park at issue afforded. She also cited Trimblett v. State, 156 N.J. Super. 291, 295 (App. Div. 1977), as establishing that LLA immunity is available to public entities. Finally, she took note that “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, she observed, “the LLA does not define the term ‘premises.'” That was the key issue in this case.

Plaintiff contended that the park, “located in a residential, suburban neighborhood and generally accessible to the public, does not qualify as ‘premises’ under the four-factor test” of Harrison v. Middlesex Water Co., 80 N.J. 391 (1979). There, the Supreme Court had said that in considering immunity under the LLA as that statute then read, courts were to consider “the use for which the land is zoned, the nature of the community in which it is located, its relative isolation from densely populated neighborhoods, [and] its general accessibility to the public at large.” That case involved “‘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.'” The Supreme Court found no immunity in Harrison.

But although the park at issue in the present case was likewise in a populated town, not in an isolated area, the LLA had changed over time. Judge Mayer painstakingly described the evolution of the LLA and the caselaw that came after Harrison. In particular, a 1991 amendment to the LLA clarified that immunity applied to premises “whether or not improved or maintained in a natural condition, or used as part of a commercial enterprise.” And subsequent Appellate Division caselaw stated that 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” (emphasis by Judge Mayer).

“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.” That necessarily included land “in cities and other densely populated communities,” regardless of the land uses surrounding that open land. Plaintiff’s argument mistakenly focused on the surrounding uses, rather than “the dominant character of the land” at issue. The panel was “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.”

Moreover, Judge Mayer cited language in Harrison itself that supported immunity here. “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.’ 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 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.’ 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].'”

Finally, Judge Mayer turned to out of state caselaw. That persuasive authority supported the panel’s result, as it was consistent with the “dominant character of the land” analysis.

Applying its analysis, the panel said “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.”

Judge Mayer then turned to plaintiff’s contention that the Law Division had converted the motion to dismiss to a motion for summary judgment by going beyond the pleadings. She concluded that, on the actual record, the Law Division had done no such thing.