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Freitag v. County of Morris

Decided: January 27, 1981.


On appeal from Superior Court, Law Division, Morris County,

Seidman, Antell and Lane.

Per Curiam

This personal injury action arises out of an accident which occurred when plaintiffs George and Debbie Freitag were tobogganing on property owned by Morris County. They appealed from a summary judgment in favor of defendant entered on the ground that the action was barred either by the Tort Claims Act (N.J.S.A. 59:1-1 et seq.) or the Landowner's Liability Act (N.J.S.A. 2A:42A-2 et seq.).

In 1960 the Morris County Park Commission acquired a 416 acre tract of land known as the Flanders Valley Recreational Area. About 200 acres are devoted to a golf course, with the remaining 216 acres consisting primarily of woodland and open fields. The hill on which plaintiffs were tobogganing is in the undeveloped portion of the property, several hundred yards from the golf course. The New Jersey Central Power and Light Company has an easement over this portion of the property, apparently for the purpose of maintaining utility lines. The hill had been cleared of timber and brush before the county acquired the property.

The accident occurred on January 23, 1977, while George, his daughter Debbie and his son Jeff were tobogganing down the hill. The toboggan went out of control and struck a large rock on the right edge of the sledding hill, as a result of which George and Debbie sustained personal injuries.

In support of its motion for summary judgment, defendant claimed immunity under N.J.S.A. 59:4-8, contending that the injury was caused by "a condition of any unimproved public property." On appeal plaintiffs maintain, as they did below, that N.J.S.A. 59:4-8 grants immunity only when an injury is caused by a natural, as distinguished from an artificial, condition of the land. They argue that since the row of rocks on the right side of the sledding hill had probably been placed there when the Jersey Central Power and Light Company cleared the hill the condition of the property was not a natural one and thus N.J.S.A. 59:4-8 did not immunize defendant.

N.J.S.A. 59:4-8 provides:

Neither a public entity nor a public employee is liable for an injury caused by a condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.

A related provision, N.J.S.A. 59:4-9, provides immunity for injury caused by a condition of unimproved portions of rivers, streams, tidelands and the like. The comment to these statutes, taken from the Report of the Attorney General's Task Force on Sovereign Immunity (May 1972), states the underlying rationale as follows:

Sections 59:4-8 and 59:4-9 reflect the policy determination that it is desirable to permit the members of the public to use public property in its natural condition and that the burdens and expenses of putting such property in a safe condition as well as the expense of defending claims for injuries would probably cause many public entities to close such areas to public use. In view of the limited funds available for the acquisition and improvement of property for recreational purposes, it is not unreasonable to expect persons who voluntarily use unimproved public property to assume the risk of injuries arising therefrom as part of the price to be paid for benefits received. A similar statutory approach was taken by the California Legislature. Cal.Gov't Code § 831.2, § 831.4, and § 831.6

The State of New Jersey possesses thousands of acres of land set aside for the specific purpose of recreation and enjoyment. The Division of Fish, Game and Shell Fisheries has 127,000 acres, the Division of Parks and Forests 280,500 acres, the Division of Water Resources 7,600 acres and the Division of Marine Police has estimated upwards of 500,000 acres including all of the land in New Jersey now or formally [ sic ] flowed by the tides. The exposure of hazard and risk involved is readily apparent when considering all the recreational and conservation uses made by the public generally of the foregoing acreages, both land and water oriented. Thus, in sections 59:4-8 and 59:4-9 a public entity is provided an absolute immunity irrespective of whether a particular condition is a dangerous one.

In addition it is intended under those sections that the term unimproved public property should be liberally construed and determined by comparing the nature and extent of the improvement with the nature and extent of the land. Certain improvements may be desirable and public entities should ...

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