On certification to the Superior Court, Appellate Division, whose opinion is reported at 158 N.J. Super. 368 (1978).
For reversal and remandment -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the court was delivered by Handler, J.
This Court is presently called upon to interpret the scope of the New Jersey Landowner's Liability Act, N.J.S.A. 2A:42A-2 et seq. The question raised by this appeal is whether that Act immunizes the defendant Middlesex Water Company from liability for the death of plaintiff's decedent who drowned while attempting to rescue two children who had fallen through an ice covered lake located on defendant's property.
The appeal, arising from a wrongful death action brought by decedent's wife against Middlesex Water Company (Middlesex or Company) and the Township of Clark, comes before the Court on a motion for involuntary dismissal granted at the close of plaintiff's case. Accepting as true all the evidence which supports the plaintiff's position together with all the legitimate inferences therefrom (R. 4:37-2(b)) the following factual picture emerges.
Middlesex Water Company owns and maintains a reservoir and water treatment plant located in the Township of Clark. The reservoir was created by the defendant and its predecessor in 1907 through the damming of a minor tributary of the Rahway River. This resulted in the creation of a man-made lake covering 94 acres in what was then a relatively unpopulated area. A treatment plant and pumping station lie adjacent to the reservoir. Surrounding the lake are 42 acres of land also owned by Middlesex. The 136 acres are currently situated in an area zoned for residential use. The surrounding area has become heavily populated and the property is bounded by a regional high school, several athletic fields, a tennis court, two social clubs and a number of private homes whose rear lots extend almost to the edge of the lake.
The greater part of Middlesex Water Company's property is unfenced, with the result that the lands have been openly accessible to and used freely and frequently by the public.
The reservoir waters have long been utilized for swimming and ice skating by the residents of Clark Township and the public generally. From 1959 to 1969 Middlesex hired special employees to patrol the reservoir to exclude trespassers, but that practice was subsequently discontinued. Other than the posting of "no trespassing" signs the defendant takes no specific steps to guard against trespassers nor does it take any other measures to regulate or supervise the public's use of its land and waters. On the day of the drowning, close to 100 people were on the ice.
On February 6, 1972 plaintiff's decedent died in the reservoir waters while attempting to rescue two 15 year old boys who had fallen through the ice while skating. That day was the first of the season on which the water had frozen sufficiently to permit ice skating; as recently as the previous day there had been patches of thin ice and areas of open water in the reservoir. No signs of warning or danger were posted and no persons were assigned to patrol the area or supervise the ongoing activities Approximately two hours before the accident occurred, snow had begun to fall, covering the frozen surface of the lake and making it difficult to determine the thickness of the ice. Responding to the boys' cries for help, decedent was able to rescue one youth while the other drowned with decedent. No rescue equipment was available to aid in the rescue attempt.
Plaintiff thereafter instituted a wrongful death action against the defendants, Middlesex Water Company and the Township of Clark. With regard to the first defendant, Mrs. Harrison contended that since Middlesex created and maintained the reservoir the company was obligated to prevent infants from skating when the ice was unsafe and to supply rescue equipment for use should any mishap occur. With regard to the Township, plaintiff contended that it failed properly to police and supervise the property. Middlesex denied that it owed any duty of care to plaintiff's decedent and also asserted that it was immune from suit by virtue of N.J.S.A. 2A:42A-2 to -5.
After the close of plaintiff's case at trial, held before a jury, Middlesex moved for an involuntary dismissal. The trial court granted the motion on the ground that the thin ice on the surface of the reservoir was not a dangerous artificial condition which gave rise to a duty to prevent persons from entering onto the land. The court also granted the Township's motion for judgment pursuant to R. 4:40-1. The Appellate Division affirmed. 158 N.J. Super. 368 (1978). However, as to Middlesex, the appellate court held that the Landowner's Liability Act, N.J.S.A. 2A:42A-2 et seq., "provides that the water company owes no duty to keep the premises safe from anyone using the premises for sport and recreational activity including skating". Id. at 378. This Court granted plaintiff's petition for certification limited solely to the question of the liability of defendant Middlesex Water Company, 78 N.J. 402 (1978).
The New Jersey Landowner's Liability Act provides, in relevant part, that:
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 ...