This matter has come before the court on a motion by the defendant for summary judgment by reason of a statutory immunity provided by N.J.S.A. 2A:42A-2 and 3. The action is for personal injury to the plaintiff, Daniel O'Connell, an infant, through his guardian ad litem , Richard O'Connell, and by Richard O'Connell, individually.
Defendant is an unincorporated association that owns certain premises upon which it operates a golf course. On March 27, 1969, the infant plaintiff and his companions entered upon defendant's premises while playing. At this time, there was an excavation hole on the premises which was part of a project to construct a dry well. While playing on the premises the infant plaintiff fell into the said hole, thereby suffering serious injuries.
The plaintiffs contend that the premises were not properly supervised or maintained by the defendant and that defendant failed to provide proper warning of the danger at the work site. Defendant's position is that it owed no duty to the plaintiff, and further, that the action is barred by the Landowners Liability Act, N.J.S.A. 2A:42A-2 et seq. , under which this motion is brought. The pertinent statutes read
An owner, lessee or occupant of premises, * * * 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 * * *.
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 and any other outdoor sport, game and recreational activity including practice and instruction in any thereof.
No New Jersey court has yet dealt with the scope of this legislative protection. The law of this State concerning injuries to infant trespassers has been that which was enunciated in the Restatement, Torts , § 334, which was adopted in Strang v. South Jersey Broadcasting Co. , 9 N.J. 38 (1952). There the court stated that
"[T]he general rule of liability covers in particular trespassing children of tender years who because of immaturity are wanting in the discretion and judgment essential to their own security. Where trespass upon the land is foreseeable, and the condition involves an unreasonable risk of death or serious bodily injury to the trespassing child, the possessor of the land is liable. [at 45]
The court continued in the Strang case to justify the policy as an exception to the common law rule of non-liability to trespassers. ...