On appeal from Superior Court, Law Division, Cumberland County.
Seidman, Antell and Lane.
This appeal by the City of Millville arises from consolidated automobile, negligence, personal injury actions instituted by Alayne C. Lauber and Jack D. Narbut. Both were injured on a tract of land leased to the city by George F. Pettinos, Inc., when a jeep driven by Narbut, in which Ms. Lauber and two other persons were riding as passengers, struck a steel cable strung along posts. Narbut sought damages from the city and the Pettinos company; Ms. Lauber sued Narbut in addition to those defendants. At the opening of the trial Pettinos' unopposed motion for dismissal was granted. The jury found Narbut 20% at fault; the city, 80%. Ms. Lauber was awarded damages against Narbut and the city in the amount of $70,000; Narbut's award against the city was $30,000. In the case of Ms. Lauber, the judgment that was entered, inclusive of interest, allocated $56,000 to the city and $17,116.69 to Narbut. Why the judgment was split in that manner is not explained. Narbut's judgment, reflecting a reduction to the extent of his percentage of fault, was in the amount of $24,000. He has not appealed.
The city contends that (1) its motion for involuntary dismissal and post-trial motions for judgment n.o.v. and for a new trial, based upon the Landowners Liability Act, N.J.S.A. 2A:42A-2 et seq. , were erroneously denied; (2) the city is immune from liability under the Tort Claims Act, N.J.S.A. 59:4-8, in light of the trial judge's finding on the post-trial motions that the premises were unimproved;*fn1 (3) evidence of the cost of future prosthetic devices in the case of the female plaintiff should have been barred under the New Jersey Automobile Reform Act, N.J.S.A. 39:6A-12 and 13.1(a), and (4) the trial judge erred in
refusing to give a curative instruction to the jury concerning a driver's duties "as well as its mistaken description of the facts of the litigation."
The central issue to be resolved is whether, on the facts here present, the city was entitled to immunity from liability under the Landowners Liability Act. If it is determined that there was such immunity, then the judgments against the city must be reversed, irrespective of the Tort Claims Act. Trimblett v. State , 156 N.J. Super. 291 (App.Div.1978). In that event, the remaining contentions would be moot.
The Landowners Liability Act provides in pertinent part:
Except as provided in section 3 [ N.J.S.A. 2A:42A-4] 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; . . . . [ N.J.S.A. 2A:42A-3].
The term "sport and recreational activities" is defined as "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 . . . ." N.J.S.A. 2A:42A-2.
The city's motion for a judgment of involuntary dismissal, made at the close of plaintiff's case, was on the ground, among others, that the statute extended immunity in that plaintiffs were engaged in a recreational activity at the time of the occurrence. The trial judge denied the motion, holding that the city was not entitled to immunity because the activity, as a matter of law, was not recreational. Subsequently, on its motion for judgment n.o.v. or a new trial, the city restated its previous position. Relying on the holding in Harrison v. Middlesex Water Co. , 80 N.J. 391 (1979), decided after the trial but prior to argument on the motion, that the statute must be strictly ...