October 9, 2013
JOSEPH LAREAU, Plaintiff-Appellant,
SOMERSET COUNTY PARK COMMISSION and GREEN KNOLL GOLF COURSE, Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 16, 2013
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-301-11.
Daniel R. Bevere argued the cause for appellant (Piro, Zinna, Cifelli, Paris & Genitempo, P.C., attorneys; John H. Sanders, II, of counsel; Mr. Bevere, on the briefs).
Timothy P. Beck argued the cause for respondents (DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, P.C., attorneys; Mr. Beck, on the brief).
Before Judges Yannotti, Ashrafi and St. John.
Plaintiff Joseph Lareau appeals from an order entered by the Law Division on October 16, 2012, granting summary judgment in favor of defendants Somerset County Park Commission and Green Knoll Golf Course. We affirm.
On June 9, 2010, plaintiff filed a complaint, naming the Commission and Green Knoll as defendants. Plaintiff alleged that on March 1, 2009, while crossing a footbridge on the course, he slipped and fell on a "wet carpet" and suffered injuries to this left knee. Plaintiff claimed that defendants failed to provide a "safe walking path for pedestrians" on the course, and defendants' actions were a direct and proximate cause of his injuries. Defendants filed an answer denying liability and asserting various defenses.
After the completion of discovery, defendants filed a motion for summary judgment. They argued that plaintiff was a trespasser on the golf course and, therefore, they did not owe him any duty of care. Defendants also argued that, even if plaintiff were considered to be a licensee, plaintiff's claim failed because they did not breach any duty owed to him. Defendants additionally argued that they were immune from liability under the Landlowner's Liablity Act (LLA), N.J.S.A. 2A:42A-2 to -10
In support of their motion, defendants submitted a certification of John Zujkowski, the course superintendent at Green Knoll. Zujkowski stated that Green Knoll is an eighteen-hole, public golf course operated by the Commission on 156 acres of land in Bridgewater. The course is open only to patrons for golf. All persons using the course are required to pay a green fee.
Zujkowski explained that the course is closed each year from January 1 until the first or second Monday of March. During that time, rounds of golf are not played, and there are no tee markers, ball washers or flags on the course. Golf rangers do not patrol the course. When the course is closed, staff members focus on maintenance and repair of the course and its equipment.
Zujkowski further explained that there is a footbridge on the eighth hole, which crosses a stream in front of the green. He stated that the footbridge is intended to accommodate foot traffic during golf rounds. Motorized golf carts cannot cross the footbridge because it is too narrow. Persons using golf carts and golfers on foot can cross the stream using a wider, flat bridge that is located on the left side of the fairway for the eighth hole.
Zujkowski additionally stated that at least fifteen years ago, the footbridge was covered with matting that is "specifically marketed and designed" for use on golf courses. He said the matting is "roughly textured" with a "woven" material that provides "exceptional grip and traction." According to Zujkowski, the matting is porous by design. Therefore, water and dirt do not collect on its surface. Zujkowski stated that he has crossed the bridge numerous times and it is not slippery "even for non-golf footwear."
Excerpts from plaintiff's deposition testimony were provided to the court. In his deposition, plaintiff testified that, on March 1, 2009, he was visiting his father-in-law John Klarer at the Stryker Court condominium complex, which is located adjacent to the golf course. Plaintiff, Klarer and plaintiff's son-in-law, Matthew J. Fedor, decided to take a walk on the course. Plaintiff said he wanted to calibrate Klarer's global-positioning-system device.
The group entered the course, passing through what plaintiff described as a row of hedges on the edge of the condominium property. Plaintiff said he did not know whether the course was closed at the time. They walked down the course, crossed a bridge to the eighth fairway and then returned toward the green on the eighth hole. They crossed the footbridge over the stream near the green.
Plaintiff testified that he slipped and fell while he was descending the footbridge. He said the footbridge was covered with "indoor/outdoor carpeting" that was in disrepair. He stated that the carpeting was "kind of worn, a little torn up in spots, [and] well used." According to plaintiff, the surface of the bridge was slippery. He recalled "the steepness" of the slope. He said he was "amazed" that the footbridge did not have handrails.
Excerpts from Fedor's deposition also were presented to the court. Fedor testified that, on March 1, 2009, he went for a walk with plaintiff and Klarer. They walked up to the ninth hole and then down to the eighth hole. Fedor saw plaintiff fall on the footbridge, which he described as "oddly steep" in its grade.
Fedor noted that the bridge did not have any handrails and was covered with "some sort of outdoor green carpeting" that was "fairly worn." He said he did not know whether or not the course was open at that time, but he saw "no indication it was closed." He stated that as far as he knew, the course was "a public park." Fedor claimed to have seen people walking their dogs on the course.
Also before the court was a report from plaintiff's expert, Wayne F. Nolte, a professional engineer. In his report, Nolte opined that the footbridge had a slope of 26.6 degrees, which is greater than the maximum permitted by the State's construction code. Nolte said the location of the footbridge, with its ramped surfaces and location over a wet area, created "a dangerous condition" with a substantial risk of injury to anyone using the structure with care. Nolte wrote that "[t]he lack of a slip-resistant surface, the excessive slope of the ramp and the lack of handrail for support as one ascends or descends the sloped portion of the bridge structure leads to the foreseeability of a slip accident."
The judge considered the motion on October 12, 2012, and filed a letter opinion dated October 16, 2012, in which he concluded that defendants were entitled to summary judgment. The judge stated that plaintiff's common law claim failed as a matter of law because, even if plaintiff were considered to be a licensee, there was no evidence that defendants breached a duty to warn him of a dangerous condition of which they had actual notice.
The judge additionally stated that plaintiff "may still be able to make out a claim" against defendants under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, based on the alleged dangerous condition of the bridge. The judge concluded, however, that the issue was moot because defendants were immune from liability under the LLA. The judge accordingly entered an order granting summary judgment to defendants. This appeal followed.
Plaintiff argues that the motion judge erred by determining that defendants are immune from liability under the LLA. We disagree.
The LLA provides in pertinent part that, except as provided in N.J.S.A. 2A:42A-4,
An owner, lessee or occupant of premises, whether or not posted as provided in [N.J.S.A. 23:7-7], 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 by reason of any activity on such premises to persons entering for such purposes[.]
N.J.S.A. 2A:42A-4 states that the LLA does not limit the liability that "would otherwise exist"
a. For willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity; or
b. For injury suffered in any case where permission to engage in sport or recreational activity on the premises was granted for a consideration other than the consideration, if any, paid to said landowner by the State; or
c. For injury caused, by acts of persons to whom permission to engage in sport or recreational activity was granted, to other persons as to whom the persons granting permission, or the owner, lessee or occupant of the premises, owes a duty to keep the premises safe or to warn of danger.
In Harrison v. Middlesex Water Co., 80 N.J. 391 (1979), the Court considered whether the defendant water company was immune under the LLA from liability for the death of an individual who drowned while attempting to rescue two children, who had fallen through the ice in a lake on the company's property. Id. at 394. At the time, the LLA provided that an owner, lessee or occupant of premises, whether or not posted pursuant to N.J.S.A. 23:7-7, owed no duty to keep the premises safe or to warn of a dangerous condition when entered or used by others for sport or recreational purposes. Id. at 396 (citing N.J.S.A. 2A:42A-3).
The Court stated that, the history of the law and its reference to the posting statute, indicated that "the kind of premises which the Legislature contemplated when it enacted the [LLA] was primarily undeveloped, open and expansive rural and semi-rural properties where hunting, fishing and trapping might be expected to take place." Id. at 400. The Court held that the LLA did not apply in that case because the drowning occurred
on an improved tract situated in a highly populated suburban community. It is surrounded by both private homes as well as public recreational facilities. It is unlike lands located in rural or woodland reaches where the activities of people thereon cannot be supervised or controlled and where the burden of guarding against intermittent trespassers may far outweigh any risk to such persons and the presence of such persons may be difficult to foresee and contain. In contrast, the reservoir area here lies in a populous setting where such factors are less substantial.
[Id. at 401-02.]
In Toogood v. St. Andrews Condominium Ass'n, 313 N.J.Super. 418 (App. Div. 1998), we considered whether the LLA applied in a case where the plaintiff was injured while rollerblading on a road in a residential condominium development. Id. at 420. We noted that the Court in Harrison had determined that in the LLA the Legislature intended to provide immunity to owners of "primarily undeveloped, open and expansive rural and semi-rural tracts of land." Id. at 423.
We additionally noted that, after the Harrison decision, the Legislature had amended N.J.S.A. 2A:42A-3 and provided that the immunity applied with regard to activities on land, whether in a natural or improved state or whether the land is the site of a commercial enterprise. Id. at 424. We stated that the 1991 amendments were apparently enacted in response to the decision in Whitney v. Jersey Central Power & Light Co., 240 N.J.Super. 420 (App. Div.), certif. denied, 122 N.J. 376 (1990), where we held that the LLA did not apply to a former railroad right of way in a State wildlife preserve, which had been converted to a roadway and used to gain access to power lines. Ibid.
We stated the purpose of the 1991 amendments "was not to expand the scope of the premises subject to the Act but to enhance and remove impediments to the immunity already afforded to rural and semi-rural tracts of land." Id. at 425. We said that our interpretation of the LLA was consistent with the result reached in Weber v. United States, 991 F.Supp. 694 (D.N.J. 1998). Ibid.
In Weber, the federal district court held that the LLA applied to a thirty-five acre park in Fort Dix in which playground equipment had been erected. Weber, supra, 991 F.Supp. at 700. The park was a large open-area in the military reservation, which the general public was permitted to use for recreational purposes.
In Toogood, we concluded that the 1991 amendments to the LLA did not change the narrow interpretation of "premises" set forth in Harrison. Toogood, supra, 313 N.J.Super. at 426. We stated that
[t]he 1991 amendments to the Act are clearly designed to focus the inquiry on the dominant character of the land and to account for the evolving types of activities considered recreational pursuits. Nothing in the language of the Act or its legislative history suggests these amendments were intended to radically alter the law of premises liability by extending immunity to suburban or urban landowners.
[Id. at 425-26.]
We are convinced that the motion judge correctly determined that defendants are immune from liability under the LLA. As we indicated in Toogood, the LLA has been interpreted to afford immunity to "rural and semi-rural or open tracts of land." Id. at 425 (emphasis added). The course consists of a large tract of open land. The property is open land, comparable to an open tract of land in a sparsely populated area. Like owners of property in less densely populated areas, defendants have difficulty guarding against intermittent trespassers to the course. Harrison, supra, 80 N.J. at 402.
The fact that the land has been improved so that it can be used as a golf course is irrelevant, because the LLA provides that immunity applies to lands, regardless of whether they are improved or used for commercial purposes. N.J.S.A. 2A:42A-3(a). Furthermore, although the course abuts a developed residential area, the premises are not situated within a suburban, residential development as was the case in Toogood. The course also is comparable to the property at issue in Weber, which was a thirty-five acre park located on the premises of the Fort Dix Military Reservation. Weber, supra, 991 F.Supp. at 695. As we stated previously, in Toogood we approved the result reached in Weber. Toogood, supra, 313 N.J.Super. at 425.
In addition, as we stated in Toogood, "[m]aintenance of an open tract of land and allowance of access by the general public for passive or active recreational purposes are precisely the types of conduct the Legislature [sought] to encourage" in the LLA. Ibid. Here, defendants maintain that the course is not, in fact, open to the general public. However, at his deposition, Fedor testified that, as far as he knew, the course was open to the public and he has seen members of the public walking their dogs there.
Thus, extending immunity to defendants under the LLA would encourage defendants to allow members of the general public to continue to have limited access to the course for some recreational use. We note that N.J.S.A. 2A:42A-5.1 states that the provisions of the LLA "shall be liberally construed as an inducement to the owners, lessees and occupants of property, that might otherwise be reluctant to do so for fear of liability, to permit persons to come onto their property for sport and recreational activities."
We therefore conclude that the motion judge correctly determined that the LLA applies and relieves defendants of liability for the common law claims asserted by plaintiff. In addition, because defendants have immunity from liability under the LLA, they are also immune from claims under the TCA. See N.J.S.A. 59:2-1(b) (a public entity's liability is subject to any immunity the entity may have); Rochinsky v. State of N.J. Dep't of Transp., 110 N.J. 399, 409 (1988) (holding that under N.J.S.A. 59:2-1(b), common law and statutory immunities not contained in the TCA prevail over the TCA's liability provisions).