The opinion of the court was delivered by: BROTMAN
Presently before this Court is the defendant United States's ("Government") Motion to Dismiss plaintiffs Karen and Robert Weber's Complaint pursuant to Fed. R. Civ. P. 12(b)(1), (6) or, in the alternative, for Summary Judgment pursuant to Fed. R. Civ. P. 56.
I. FACTS AND PROCEDURAL BACKGROUND
The following facts are not contested. On June 4, 1994, plaintiff Karen Weber ("Plaintiff") was using a swing set in Willow Pond Park. While she was on the swing set, a metal yoke that was holding the swing chain fractured and released the swing chain, causing her to fall to the ground. The fall caused her bodily injury. In addition, the metal yoke fell and hit Plaintiff on her head causing a puncture wound.
Willow Pond Park is located on the premises of the Fort Dix Military Reservation. The Park is owned by the United States of America. It was opened in May 1984 and has been in continuous use since then. The area of the Fort Dix Military Reservation where the Park is located is an "open" military base, i.e., there is unrestricted access to that portion of Fort Dix. The Park itself is open for use by the general public.
Willow Pond Park comprises approximately thirty-five (35) acres. There is various recreational equipment and facilities located on the Park's premises, including: swing sets, picnic tables, barbeques, park benches, basketball courts, a large pond, and a pavilion. A nominal fee is charged for use of the pavilion on those occasions when it is reserved in advance for use by a particular group. No fee of any kind is charged for access to or use of any other portion of the Park.
The Government seeks dismissal of Plaintiffs' Complaint for lack of subject matter jurisdiction.
Specifically, it contends that this Court lacks subject matter jurisdiction because Plaintiffs have no cause of action under the substantive law of New Jersey.
A. The Federal Tort Claims Act
"It is elementary that 'the United States, as sovereign, is immune from suit save as it consents to be sued . . ., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" United States v. Mitchell, 445 U.S. 535, 538, 63 L. Ed. 2d 607, 100 S. Ct. 1349 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586, 85 L. Ed. 1058, 61 S. Ct. 767 (1941)). A claim against the United States is barred for lack of subject matter jurisdiction unless it falls within an applicable waiver of sovereign immunity. See Mitchell, 445 U.S. at 538. "A waiver of sovereign immunity 'cannot be implied but must be unequivocally expressed'" by Congress. Id. (quoting United States v. King, 395 U.S. 1, 4, 23 L. Ed. 2d 52, 89 S. Ct. 1501 (1969)).
The Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, grants a limited, qualified waiver of the federal government's sovereign immunity. It unequivocally "waives sovereign immunity as to claims against the United States for money damages for injury caused by the negligent or wrongful act or omission of a government employee acting within the scope of his employment 'under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.'" Beneficial Consumer Discount Co. v. Poltonowicz, 47 F.3d 91, 95-96 (3d Cir. 1995) (quoting 28 U.S.C. § 1346(b)). A plaintiff may recover against the United States only to the extent that recovery would be permitted under the substantive tort law of the state where the complained of conduct took place. Ciccarone v. United States, 486 F.2d 253, 257 (3d Cir. 1973). The waiver of the United States' sovereign immunity may not be enlarged by the courts, and its consent to be sued must be construed strictly in favor of the sovereign. See United States v. Nordic Village, 503 U.S. 30, 34, 117 L. Ed. 2d 181, 112 S. Ct. 1011 (1992).
The FTCA did not itself create a substantive cause of action against the United States. Rather, it conferred a procedural remedy by which substantive state law could be applied against the federal government. Therefore, in each FTCA case the "controlling question is whether the substantive law of [the state where the alleged wrong occurred] permits . . . recovery from the United States under the facts of the case." Certain Underwriters at Lloyd's v. United States, 511 F.2d 159, 161 (5th Cir. 1960). In this case, the substantive law of New Jersey governs because it is the state where the complained of conduct took place.
B. The New Jersey Playground Act
The Government contends that Plaintiffs have no cause of action because the New Jersey Playground Act ("Playground Act"), N.J. Stat. Ann. § 5:3-30, provides immunity against tort liability in this case. The Playground Act states:
No person maintaining or operating a playground for public use acquired or maintained for philanthropic purposes and not for profit, shall be liable in damages for accidents happening within the bounds of such playground.
In reaching its holding, the court chose to adopt a very narrow definition of "philanthropic purpose." The court adopted a definition of "philanthropic" synonymous with "charitable." Id. at 1254. The fact that the municipality was not maintaining the playground for profit and there was no fee charged for the use of the playground was not enough to establish that the playground was operated for a "philanthropic purpose." Id. at 1254. The court still found that the municipality was not acting charitably since it relied on revenues gained through taxation to maintain the playground. Id. Instead, it found that the municipality maintained the playground for "municipal ...