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Toogood v. St. Andrews at Valley Brook Condominium Association

July 01, 1998


Before Judges King, Cuff and Fall.

The opinion of the court was delivered by: Cuff, J.A.D.

[9]    Argued: June 3, 1998

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

Plaintiff Linda Toogood fell while rollerblading on a road within a residential condominium development. She appeals from the entry of summary judgment in favor of all defendants on the basis that they are immune from liability pursuant to the terms of the Landowners' Liability Act (Act), N.J.S.A. 2A:42A-2 to -10. We reverse.

At about 3 p.m. on Sunday, July 12, 1992, plaintiff was rollerblading on a road within a residential condominium development. She was visiting a friend who resided in one of the completed residential units. A new section of residences was in the course of construction. At the intersection of two paved roadways, plaintiff slipped and fell due to an accumulation of sand on the roadway's surface. The sand apparently came from an adjacent residential construction site.

Plaintiff named six entities as defendants. Defendant St. Andrews at Valley Brook Condominium Association is the representative of the homeowners of St. Andrews at Valley Brook, a section of the Valley Brook development. Defendant Valley Brook Associates is the developer/owner of the Valley Brook development and controlled and/or maintained the undeveloped roads in the development. Defendant Valley Brook Homeowners Association represents the interests of the homeowners who occupy the various residential sections within the Valley Brook condominium development. It is an umbrella organization of the separate condominium associations within Valley Brook, including defendant St. Andrews at Valley Brook Condominium Association. Defendants Bill Bowman and Orleans Construction Company were involved in the construction work in the vicinity of the intersection where plaintiff fell.

At the close of discovery, all defendants moved for summary judgment. They argued that the Act immunized each from liability. In granting their motions, the motion Judge resorted to a literal interpretation of the language of the Act. He noted previously the Act had been applied to rural settings; however, in 1991 the Act was amended to include the phrase "whether or not improved or maintained in a natural condition" as a modifier of the word "premises." He concluded the use of the word "improved" to describe property covered by the Act meant that the Act now applied to all improved property, wherever located. Moreover, he noted that plaintiff was engaged in a "sport and recreational activit[y]" at the time of her fall. He opined that the purpose of the 1991 amendments was "to avoid imposing any obligation or liability upon improved property owners as well as properties that were, as they were defined under the prior act, limited to areas that were ... generally rural areas."

Plaintiff argues that the 1991 amendments were designed solely to foster the immunity from liability for owners and occupiers of rural, semi-rural and large open tracts of land. Defendants contend that the amendments effectuated a broad extension of landowner immunity to owners and occupiers of suburban property.

Resolution of this issue requires us to examine the text of the Act, its interpretation prior to the 1991 amendments, and the legislative history of those amendments. We start with the Act in its present form.

N.J.S.A. 2A:42A-3a provides:

An owner, lessee or occupant of premises, whether or not posted as provided in section 23:7-7 of the Revised Statutes, and whether or not improved or maintained in a natural condition, or used as part of a commercial enterprise, 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-2 defines various terms used in the Act; it provides:

As used in this act "sport and recreational activities" means and includes: hunting, fishing, trapping, horseback riding, training of dogs, hiking, camping, picnicking, swimming, skating, skiing, sledding, tobogganing, operating or riding snowmobiles, all-terrain vehicles or dirt bikes, and any other outdoor sport, game and recreational activity including practice and instruction in any thereof. For purposes of P.L.1968, c. 73 (C. 2A:42A- 2 et seq.) "all-terrain vehicle" means a motor vehicle, designed to travel over any terrain, of a type possessing between three and six rubber tires and powered by a gasoline engine not exceeding 600 cubic centimeters, but shall not include golf carts; "snowmobile" means any motor vehicle, designed primarily to travel over ice or snow, of a type which uses sled type runners, skis, an endless belt tread, cleats or any combination of these or other similar means of contact with the surface upon which it is operated, but does not include any farm tractor, highway or other construction equipment, or any military vehicle; "dirt bike" means a motor powered vehicle possessing two or more tires, designed to travel over any terrain and capable of travelling off of paved roads, whether or not such vehicle is subject to registration with the Division of Motor Vehicles.

The term "premises" in Section 3a is not defined. In Boileau v. DeCecco, 125 N.J. Super. 263 (App. Div. 1973), aff'd o.b., 65 N.J. 234 (1974), this court was called upon to interpret the term "premises" following an amendment to the Act in 1968. The Legislature amended the Act as originally enacted by removing the language "agricultural lands and woodlands" and adding the word "premises." We concluded that this change of language was not intended to enlarge the protected class of landowners to suburban landowners. Id. at 267. Rather, ...

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