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Boileau v. De Cecco

Decided: October 16, 1973.

DONNA BOILEAU, DONNA BOILEAU AS ADMINISTRATRIX OF THE ESTATE OF MAURICE BOILEAU, AND DONNA BOILEAU AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF MAURICE BOILEAU, PLAINTIFF-APPELLANT,
v.
LOUIS DE CECCO AND MARION DE CECCO, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS



Halpern, Matthews and Bischoff. The opinion of the court was delivered by Bischoff, J.s.c., Temporarily Assigned.

Bischoff

[125 NJSuper Page 264] Plaintiff, as administratix ad prosequendum of the estate of her deceased

husband, appeals from a summary judgment dismissing a wrongful death action brought by her.

Plaintiff's decedent and defendant Louis DeCecco on September 5, 1970 went to a football game with other men. DeCecco lived in a residential area in Blackwood and had a swimming pool in his backyard. It was a hot day, and defendant later invited his companions to take a swim in his pool. Plaintiff's decedent apparently dove into the shallow end of the pool, fractured his neck and eventually died of the injuries sustained. This action followed, charging defendant with various acts of negligence growing out of the construction and maintenance of the pool.

Defendant, in addition to other defenses, pleaded immunity under N.J.S.A. 2A:42A-3. A motion for summary judgment on that basis was granted, and it is from that judgment that this appeal is prosecuted.

The narrow issue presented is whether the statute gives immunity to the owner, lessee or occupant of property in a residential area for injuries or death growing out of the use of a swimming pool located thereon.

The statute in question, N.J.S.A. 2A:42A-3, reads as follows:

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;

b. An owner, lessee or occupant 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.

Plaintiff argues the statute was not intended to apply to lands in a residential area, but that the immunity granted thereby is restricted to the rural setting.

Defendant, on the other hand, contends that the plain, unrestricted use of the word "swimming" in the definition of "sport and recreational" activities (N.J.S.A. 2A:42A-2) confers immunity in this situation. This statute replaced N.J.S.A. 2A:42A-1 which conferred ...


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