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Magro v. City of Vineland

Decided: March 9, 1977.

SUSAN MAGRO ET AL., PLAINTIFFS-APPELLANTS,
v.
CITY OF VINELAND, DEFENDANT-RESPONDENT



Carton, Kole and Larner. The opinion of the court was delivered by Larner, J.A.D.

Larner

[148 NJSuper Page 35] The infant plaintiff, 14 years of age, was injured on July 22, 1970 while diving from a makeshift

diving board into an abandoned pond or lake owned by the City of Vineland. The lake had been formed by the natural seepage of water into a "sandwash" and was acquired by the municipality with other land for ultimate development as a park.*fn1 As of the time of the occurrence, however, it was "predominantly rural * * * undeveloped, unoccupied, and unimproved."

Plaintiffs further alleged in the complaint that from time to time children were attracted to the area and went swimming in the lake with the knowledge of defendant and that defendant was negligent in failing to exercise due care in its maintenance and in failing to warn users of the dangers caused by the shallowness of the water.

Defendant moved for summary judgment supported by an affidavit of the superintendent of recreation which described the lands in question and their condition as of the time of the accident in 1970. Plaintiff supplied no proofs by affidavit or otherwise in response, despite the obligation to present specific facts in verified form in an effort to demonstrate that there was a genuine issue for trial. R. 4:46-5.*fn2

The trial judge granted summary judgment in favor of the city based upon the statutory immunity granted to municipal entities for injury from the use of "public grounds" (N.J.S.A. 40:9-2),*fn3 as well as that granted to property owners generally by N.J.S.A. 2A:42A-2 to 5 for injury to a person from the use of lands for "sport and recreational activities."

In our opinion the summary judgment for defendant was warranted by virtue of the immunity created by N.J.S.A. 2A:42A-2 to 5 and it is therefore unnecessary to consider whether the "public grounds" statute, N.J.S.A. 40:9-2, applies to the undeveloped lands involved herein.*fn4

N.J.S.A. 2A:42A-2 defines the nature of the activity which triggers the statutory immunity in the following:

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 absolves the property owner from any duty of care toward those encompassed by section 2 in the following language:

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 ...


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