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Whitney v. Jersey Central Power & Light Co.

Decided: May 1, 1990.

DENNIS E. WHITNEY, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ERIC D. WHITNEY, DECEASED, AND MARION WHITNEY, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
JERSEY CENTRAL POWER & LIGHT COMPANY, DEFENDANT-RESPONDENT, AND COOPER'S CYCLE RANCH, INC., AMERICAN HONDA MOTOR CO., INC., AND HONDA MOTOR CO., LTD., DEFENDANTS. THE PENN CENTRAL CORPORATION, DEFENDANT-THIRD-PARTY PLAINTIFF, V. CONTRAK, INC., THIRD-PARTY DEFENDANT



On appeal from Superior Court of New Jersey, Law Division, Monmouth County.

J. H. Coleman, Brody*fn1 and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

[240 NJSuper Page 421] This appeal requires us to decide whether the Landowners Liability Act (the Act), N.J.S.A. 2A:42A-2 et seq., provides immunity from suit for personal injuries resulting from a dangerous condition on a roadway within a wildlife preserve which a public utility uses for the maintenance of electric

transmission lines. We conclude that the Act does not apply to such a roadway and therefore reverse the grant of summary judgment in favor of defendant Jersey Central Power & Light Company (JCP & L).

The appeal arises out of a wrongful death action brought by the administrator ad prosequendum of the estate of Eric D. Whitney.*fn2 The decedent was killed while driving an all terrain vehicle along a former railroad right of way. At the time of the accident the rails and most of the timber ties had been removed from the center of the right of way, and it contained a clearly visible, dirt and cinder roadway on which JCP & L employees operated motor vehicles used to maintain its transmission lines. This roadway, which is approximately eleven feet wide, starts near Mercer County Route 539 and cuts through a section of the Assunpink Watershed Area, a state wildlife preserve located in Upper Freehold Township, in Monmouth County. The roadway is bisected by a creek, which is more than 10 feet below the surface of the roadway. When the right of way was used for railroad purposes, the creek was crossed by a trestle type bridge. However, the deck of the bridge was removed after the railroad discontinued use of the right of way, creating a dangerous condition which is obscured from view by a slight elevation just before the creek. No barriers or warning signs were erected to protect persons traveling along the roadway from falling into the creek.

The accident occurred at 5:55 p.m. on January 2, 1985, when the roadway was dark. The decedent and four companions were driving their vehicles at approximately 30 to 35 miles per hour. The decedent was the lead driver and the roadway was illuminated by the headlights of the vehicles. Suddenly the decedent disappeared from the view of his companions. The other drivers brought their vehicles to a safe stop and discovered

that the decedent's vehicle had fallen into the creek through the pilings of the partially demolished bridge. Decedent's lifeless body was later discovered floating in the creek.

This suit was subsequently brought against JCP & L and various other defendants.*fn3 After the completion of discovery, JCP & L renewed a prior motion for summary judgment. The trial court concluded in an oral opinion that the Act immunizes JCP & L from liability for the decedent's accident and therefore granted summary judgment in its favor.

The Act provides in pertinent part that "[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(a). As the Supreme Court noted in Harrison v. Middlesex Water Co., 80 N.J. 391, 397, 403 A.2d 910 (1979), "[the] use of the word 'premises' in conjunction with a reference to the posting statute (N.J.S.A. 23:7-7), without further definition, creates some unsureness of the statute's intended scope." However, the Court concluded, based on a review of the language of the Act and its legislative history, that "the kind of premises which the Legislature contemplated when it enacted the Landowner's Liability Act was primarily undeveloped, open and expansive rural and semi-rural properties." Id. at 400, 403 A.2d 910. The Court observed that:

Owners of such properties would have difficulty in defending their lands from trespassers or, indeed, even in taking precautions to render them safe for invited persons, engaging in . . . energetic outdoor activities. The public policy to afford these property owners a modicum of protection from tort liability may be thought of as one which would encourage such owners to keep their lands in a natural, open and environmentally wholesome state. . . . The Act, in our view, would clearly go beyond these goals were it construed to grant a blanket

immunity to all property owners, particularly to those owning lands in densely populated urban or suburban areas, without regard to the ...


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