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Cosh v. United States

United States District Court, Third Circuit

October 11, 2013

DOUGLAS COSH, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

OPINION

KEVIN McNULTY, District Judge.

This matter comes before the Court upon the motion of the United States of America's for summary judgment against Plaintiff Douglas Cosh. The motion will be denied because there is a genuine, material issue of fact as to whether Cosh entered the Delaware Water Gap National Recreational Area for purposes of recreation.

Mr. Cosh brings this action for injuries he sustained while bicycling on Old Mine Road in the Delaware Water Gap National Recreational Area ("Delaware Water Gap") in the Township of Montague, New Jersey. Cosh alleges that potholes in the road caused him to lose control of his bicycle and that he fell, injuring himself seriously. Defendant is alleged to maintain and control this road. Docket No. 1 at 4, ¶ 2.

Cosh alleges that Defendant breached its duty of reasonable care to safely maintain the road and failed to warn him that the road was dangerous. Id. at 5-6. He brings this negligence claim via the Federal Torts Claim Act ("FTCA"), 28 U.S.C. § 1346. The FTCA incorporates the substantive tort law of the place where the accident occurred-here, New Jersey.

The United States has moved for summary judgment, pursuant to Federal Rule of Civil Procedure 56. Defendant alleges that it is immune from Cosh's negligence suit under the New Jersey Landowner Liability Act ("LLA"). The LLA provides tort immunity to owners of rural and semi-rural properties who open their property to others for sport and recreational activities. N.J. Stat. Ann. § A:42A-3. Cosh responds that the LLA does not apply to his claim because he was not engaged in recreational activity and the property where the accident occurred is not rural or semi-rural. He does not deny that the Delaware National Recreational Area is open to the public and that he did not pay a fee to enter.

For Defendant to succeed on this motion, then, I must find that there is no genuine issue as to whether both required elements of the LLA are met. The motion poses two issues: (1) whether Cosh entered the Delaware Water Gap for recreational purposes, as defined by N.J. Stat. Ann. § 2A:42A-2, and (2) whether the site of the incident, part of the Delaware Water Gap, is a "rural/semi-rural" area. Because there is a genuine issue of fact, at least as to issue (1), Defendant's motion for summary judgment is denied.

I. BACKGROUND

Plaintiff is a resident of Dingman's Ferry, Pennsylvania. On Sunday, July 18, 2010, he left his home at 8:30 am on his touring bike. Docket No. 16-3 at 20-21. His intended destination was Milford, Pennsylvania. There, he planned to meet a friend at the Milford Diner for breakfast at 9:30 a.m., after which they would walk around town to look at properties. Id. at 21-22, 30. En route, Cosh "encountered broken payment" that caused him to lose control of his bicycle, fall, and sustain serious injuries. Docket No. 1 at 5, ¶ 6. The accident occurred in a wooded area along Old Mine Road, also known as Route 209 or County Road 521, in the Delaware Water Gap in the Township of Montague, 2.2 miles south of the intersection with Route 206. Id. at 4; Docket No. 16-1 at 15. According to an area map, Plaintiff fell just below mile marker thirty one, in an area known as "the Minisink curves." Docket No. 16-1 at 15. On January 17, 2012, Plaintiff filed this action against the United States. Docket No. 1.

II. DISCUSSION

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248; Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In deciding a motion for summary judgment, a court must construe all facts and inferences in the light most favorable to the nonmoving party. See Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) (citing Peters v. Delaware River Port Auth. of Pa. & N.J., 16 F.3d 1346, 1349 (3d Cir. 1994)). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "[W]ith respect to an issue on which the nonmoving party bears the burden of proof... the burden on the moving party may be discharged by showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.

Once the moving party has met that threshold burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; see also Fed.R.Civ.P. 56(c) (setting forth types of evidence on which nonmoving party must rely to support its assertion that genuine issues of material fact exist). "[U]nsupported allegations... and pleadings are insufficient to repel summary judgment." Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001) ("A nonmoving party has created a genuine issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial."). If the nonmoving party has failed "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.... there can be no genuine issue of material fact, ' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex, 477 U.S. at 322-23).

B. The FTCA and the LLA

The Federal Torts Claim Act provides the exclusive avenue for a negligence action against the United States. 28 U.S.C. § 2679(a), 2679(b)(1). The FTCA, a limited waiver of sovereign immunity, authorizes suits against the federal government for the "negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or 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." 28 U.S.C. § 1346(b)(1). The FTCA incorporates local law, providing that the United States is liable only to the extent that a private person or entity "engaging in analogous ...


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