On appeal from Superior Court of New Jersey, Law Division, Cumberland County.
Fritz, Furman and Deighan. The opinion of the court was delivered by Fritz, P.J.A.D.
This is a complex matter, involving three consolidated interlocutory appeals and entailing, among other things, consideration of the reach of N.J.S.A. 2A:42A-2. It is made more difficult by the failure of the trial judge to report findings of fact on crucial issues, contrary to the mandates of R. 4:46-2 and R. 1:7-4. Some of these findings appear in colloquy with counsel on the summary judgment motions involved but we do not consider this compliance with the Rules.*fn1
The basic action sounds in negligence. It charges defendants with negligently permitting "large quantities of refuse" to be deposited in an artificial lake to whose creation they contributed, resulting in serious injuries to plaintiff when he was swimming in this lake. The events leading up to this occurrence are set forth in the letter opinion of the trial judge and appear to be uncontested and uncontestable. We borrow from that letter:
The State of New Jersey in the early 1970's constructed an entirely new four-lane limited access highway known as Route 55 running in a north-south direction from Port Elizabeth in Cumberland County to U.S. Route 40 in Gloucester County. With respect to the portion of the highway critical to this case the general contractor was a joint venture known as John J. Dunn and J.J. Nugent Co., hereinafter known as Dunn-Nugent. During the construction of this entirely new right of way it became necessary to obtain sand and gravel for use on the road bed. This was obtained by purchase from defendant Millville Manufacturing Co. (later renamed Wawa). Millville owned extensive holdings adjacent to the right of way of Route 55.
The proposal upon which the contract of construction called for a specified amount of "borrow excavation" including the materials to be obtained from Millville. The job of procurement as well as other portions of the work was sub-contracted by Dunn-Nugent to defendant Gaskill.
Gaskill entered into an agreement with Millville which, tersely stated, permitted Gaskill to excavate on Millville's land to the extent necessary. This excavation was of sufficient magnitude that it resulted in the creation of a lake of approximately 20 acres. This lake was and has been used by members of the public for swimming and bathing but not on a formal organized basis. Work upon the project was completed in 1974.
On July 7, 1977, plaintiff went swimming in the lake, dove into the water, hit his head on an obstruction and as a result thereof is a quadraplegic. He then filed suit against Millville as owner, Dunn-Nugent as general contractor, and Gaskill as the responsible sub-contractor.
All defendants moved for summary judgment. The motion of Millville*fn2 was granted and those of Gaskill and Dunn-Nugent were denied. An order was entered granting judgment to Millville on plaintiff's complaint and defendants' cross-claims "based on the Landowner's Liability Act [ N.J.S.A. 2A:42A-2 et seq. ]." Dunn-Nugent's motion for summary judgment "based on its relationship with defendant Gaskill" was denied as were Dunn-Nugent's motions for summary judgment for indemnification by Gaskill and Millville. Gaskill's motion for summary judgment "based on the Landowner's Liability Act" was denied. Leave to appeal was granted plaintiff and defendants Dunn-Nugent and Gaskill and these appeals were consolidated. We now affirm.
The particular statute directly implicated is N.J.S.A. 2A:42A-3a. It reads as follows:
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 ...