Kolovsky, Bischoff and Botter. The opinion of the court was delivered by Bischoff, J.A.D.
Plaintiff Maria Antonieta Odar instituted this lawsuit as administratrix ad prosequendum to recover damages for the alleged wrongful death of her husband Pedro Luis Odar. The unfortunate incident which resulted in his death occurred under the following circumstances.
On February 12, 1972 decedent and three of his children entered upon land owned by the estate of William Waldrich so that the children could ice skate on one of the two ponds there. Upon arrival they observed other persons ice skating and two of the decedent's children ice skated for about one hour. Decedent called his children so that they could leave and thereupon observed his daughter fall through the ice into the pond. Without skates, decedent ran onto the pond to rescue his daughter. He also fell through the ice and was drowned. This action was instituted against Chase Manhattan Bank as trustee of the estate of William Waldrich. Defendant's motion for summary judgment was granted and plaintiff appeals.
The land in question is bordered on the south by State Highway No. 3 and on the north by a shallow river. On the land are located two ponds and a canal. It is conceded that the pond where the accident occurred is natural rather than artificial. Some of the water in the pond is used by Advance Piece Dye Works in its bleaching process. At one end of the property is a gasoline station, and there is a curb cut whereby vehicles can leave the highway and enter upon defendant's land. On the day in question decedent entered the gas station, parked the car and walked across the land to the pond.
Defendant neither maintains nor patrols the property. There is no fence around most of the land. While at one time signs prohibiting trespassing were posted, they were destroyed and were not replaced. There were none visible on February 12, 1972. Defendant knew the land was used for picnicking, swimming, fishing and ice skating. He knew police frequently chased users off the land. Defendant had also been requested by the board of health and police to take protective measures against the possible breeding of rats on the property and the unsupervised use of the property for recreational purposes. Defendant's motion for summary judgment was grounded in the contention that N.J.S.A. 2A:42A-2 et seq. granted it immunity under these circumstances. The trial judge agreed and for that reason entered judgment for the defendant.
N.J.S.A. 2A:42A-2 provides:
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.
N.J.S.A. 2A:42A-3 states:
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 ...