On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.
King, Brody and Ashbey. The opinion of the court was delivered by King, P.J.A.D.
This case turns on whether the defendant George Walker was an "occupant" of the premises where the accident occurred so as to enjoy the immunity provided by the Landowner's Liability Act, N.J.S.A. 2A:42A-2 to -7, L. 1968, c. 73.
The accident happened on April 28, 1984 when the plaintiff, John Jozefyk, was visiting a cabin built and maintained by his grandfather, George Walker. Plaintiff was a member of a church group from Millville which was using the cabin while on
a recreational trip with Walker's permission and in his company. The group included plaintiff's father, grandfather, and some young people from the church. There was no payment made for using the premises. The purposes of the trip according to defendant Walker included "hunting, boating, camping out, and hunting for fossils and Indian artifacts."
The plaintiff claimed that he fell from the catwalk of the cabin while using a "boot jack" to remove his muddy boots. He claimed that negligent maintenance of the facility caused his injury. Defendant moved for summary judgment, asserting the immunity of the Landowner's Liability Act, and prevailed.
On this appeal, plaintiff claims that defendant was not an "occupant" of the premises within the intent of the Act because he had no legal title or lease to the premises. Judge Kleiner concluded that Walker was an "occupant" of the premises within the meaning of the Act. All agree that the property was used for the recreational purposes contemplated by the Act at the time of the accident.*fn1
The Act, as pertinent to this case, states:
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 any injury to person or property caused by any act of persons to whom the permission is granted. [Emphasis supplied; N.J.S.A. 2A:42A-3.]
Walker had neither legal title nor a leasehold interest in the cabin which he built in about 1934 in what was then unclaimed tidal marsh land. The cabin rests on what is today State-owned tidal marshlands in the Egg Island Wildlife Sanctuary at the mouth of the Oranoaken Creek, several miles south of Fortescue on the Delaware Bay. A pier and catwalk ...