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Alfano v. Middlesex Water Co.

August 21, 2009

FRANCIS ALFANO, JR., AN INFANT BY HIS GUARDIAN AD LITEM, DONNA ALFANO AND DONNA ALFANO, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
MIDDLESEX WATER COMPANY, DEFENDANT-RESPONDENT, AND THOMAS HUNTERTON, DIANE HUNTERTON AND SCOTT HUNTERTON, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7296-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued on August 5, 2009

Before Judges Rodríguez and LeWinn.

Plaintiffs, Francis Alfano, Jr. (Francis), a minor, and his guardian ad litem, Donna Alfano, appeal from the August 15, 2008 order of the Law Division granting summary judgment to defendant, Middlesex Water Company (MWC), dismissing their complaint with prejudice. For the reasons that follow, we affirm.

The pertinent factual background, derived from the pleadings and motion papers submitted to the trial court, may be summarized as follows. On or about May 27, 2004, then-sixteen-year-old Francis was a passenger on an all-terrain vehicle (ATV) operated by Scott Hunterton (Scott), on property owned by MWC. Scott was driving the ATV on a gravel path when the front tire became caught in "overgrowth abutting the path during an attempted turn, causing the ATV to flip." Francis suffered severe injuries as a result.

On September 11, 2006, plaintiffs sued MWC, Scott and his parents and other parties. Plaintiffs asserted that MWC owne[d] or had control of the property which consisted of a wooded area in . . . South Plainfield[,] . . . [and] negligently maintained and controlled said premises so as to create an attractive nuisance and permit access thereon without adequate security gates or means to deny access to children who commonly ro[de] ATVs and other motorized vehicles on said property and had done so for a continuous and long period of time with [the] knowledge and the implied consent of [MWC].

On or about June 12, 2008, MWC filed a motion for summary judgment, arguing that: (1) it was entitled to immunity under the Landowner's Liability Act, N.J.S.A. 2A:42A-1 to -10 (LLA); and (2) Francis was a trespasser and, therefore, MWC owed him no duty. MWC described the property in question as an eighty-eight-acre tract, known as "Riley Woods," that is largely undeveloped "private property owned by [MWC]" on which "water pumping stations are located." In September 2001, MWC "began posting 'Private Property' and 'No Trespassing' signs on trees and prominent locations throughout the property." MWC argued that N.J.S.A. 2A:42A-3(a) "clearly states that [it] had no duty to keep the premises safe for [the] use [of] sport or recreational activities."

Plaintiffs claimed in opposition that MWC had "made improvements to the property . . . including one right near the accident and construct[ed] gravel roads[,]" and that MWC "neither posted signs to keep persons away from the property, nor erected barriers to entry, nor took any other measures to keep people off the property." Plaintiffs further claimed that MWC "knew or should have known that children used the property to ride ATVs; prior to the accident herein[,] there were at least 41 incidents where the police were summoned to the property or its surroundings due to noise complaints."

The trial court heard oral argument on August 15, 2008, and rendered a decision from the bench granting MWC's motion, primarily relying upon N.J.S.A. 2A:42A-3(a), which exempts a landowner from liability to those who use the property for "sport or recreational activities . . . ." The court concluded that, under the facts of the case, MWC was entitled to "immunity from liability for the claims of the plaintiff." As the court noted, "plaintiff was on the property for the express[] purpose of engaging [in] the sport of riding the [ATV] up and down the [property], an activity that was plainly recreational; . . . therefore, the plaintiff's actions were sport and recreational; and, thus, the [LLA] applied . . . ."

On appeal, plaintiffs argue that the trial court erred in applying the LLA to grant "immunity" to the MWC respecting property "located in the densely populated city of South Plainfield . . . ." Plaintiffs contend that the property is "manifestly not the [kind] of 'rural and semi-rural tract of land' to which the [LLA] conferring immunity was intended to apply." We disagree.

We note initially that when reviewing an order granting summary judgment, we apply the same standards as the trial court. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Summary judgment may be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co of Am., 142 N.J. 520, 540 (1995). Applying that standard, we are satisfied that the trial judge properly granted summary judgment to MWC under the circumstances presented here.

The LLA provides in pertinent part that

[a]n owner, . . . 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 or recreational activities, or to give warning of any hazardous condition of the land or in connection with the use of any structure or ...


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