Collins, J.c.c., Temporarily Assigned.
Plaintiff has moved to vacate an order entered by this court on June 18, 1971 which dismissed the first and second counts of his amended complaint. This court has agreed to consider the motion as one pursued in accordance with R. 4:50-1(f), and briefs have accordingly been filed to supplement the oral arguments of counsel.
This matter arises out of injuries suffered by the infant plaintiff when he dove off an apparently abandoned barge located in a body of water on defendant's property. Plaintiff's complaint, as amended by papers filed with the court on May 24, 1971, alleged in its first count that defendant owed a duty to see that the area in question was safe for the uses to which it knew the property was being put by infant trespassers and/or licensees. In his second count plaintiff alleged defendant "wilfully, wantonly and/or maliciously
fail[ed] to guard, or warn against, a dangerous condition, use, structure or activity." The order entered on June 18, 1971 struck, with prejudice, the entire first count, and struck "that portion of the second count which charges defendant with 'wanton' failures * * * so that after entry of this order, the allegations of paragraph two of the second count of the amended complaint shall be limited to allegations that defendant 'did wilfully and/or maliciously fail to guard, or warn against, a dangerous condition, use, structure or activity.'"
This court entered the order in conformance with what it then believed to be the proper interpretation of N.J.S.A. 2 A:42 A -1 et seq. In reaching its conclusion at that time this court had no interpretative case law available to it, but only the bald wording of the statute. I now feel, in the light of subsequent case law and further research into the applicable legislative history, that this court's initial interpretation of N.J.S.A. 2 A:42 A -1 et seq. was in error.
The act in question, L. 1968, c. 73 (N.J.S.A. 2 A:42 A -1 et seq.) reads:
An act relating to the liability of owners, lessees and occupants of premises towards persons entering on their premises for sport and recreational activities in certain cases, and repealing chapter 107 of the laws of 1962.
Be it enacted by the Senate and General Assembly of the State of New Jersey:
1. 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.
C. 2A:42A-3 Limitation of liability of owner, lessee or occupant of premises.
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 ...