Brett v. Great American Recreation, Inc.
| Decision Date | 08 February 1995 |
| Citation | 652 A.2d 774,279 N.J.Super. 306 |
| Parties | Patrick BRETT and Elisa Ramundo, Plaintiffs-Respondents, v. GREAT AMERICAN RECREATION, INC., Defendant-Appellant, and Stonehill Property Owners Association, Inc., Hotel Section Condominium Council, Inc., Defendants/Third-Party-Plaintiffs, and Rudolph Maurizzi, Defendant/Third-Party-Plaintiff/Respondent, v. Denise McDADE, Nancy Morgan, Third-Party-Defendants. Karen FURMAN, Plaintiff-Respondent, v. GREAT AMERICAN RECREATION, INC., Defendant-Appellant, and Stonehill Property Owners Association Inc., Hotel Section Condominium Council, Inc., Defendants/Third-Party-Plaintiffs, v. Rudolph MAURIZZI, Third-Party-Defendant/Respondent. Donald PISARCIK, Plaintiff-Respondent, v. GREAT AMERICAN RECREATION, INC., Defendant-Appellant, and Stone Hill Property Owners Association Inc., Hotel Section Condominium Council, Inc., Defendants, and Rudolph Maurizzi, Defendant-Respondent. Megan RUSSELL, Plaintiff-Respondent, v. GREAT AMERICAN RECREATION, INC., Defendant-Appellant, and Stone Hill Property Owners Association Inc., Hotel Section Condominium Council, Inc., Defendants/Third-Party-Plaintiffs, and Rudolph Maurizzi, Lisa Carmelitano, Third-Party-Defendants/Respondents. and Karen Furman, Third-Party-Defendant. |
| Court | New Jersey Superior Court — Appellate Division |
Samuel A. DeGonge, Belleville, for appellant Great American Recreation, Inc. (Samuel J. McNulty, on the brief).
Philip G. Auerbach, Red Bank, for respondents Patrick Brett, Elisa Ramundo, Karen Furman and Donald Pisarcik (Auerbach & Cox, attorneys; Mr. Auerbach, on the brief).
John P. Doran, Jersey City, for respondent Megan Russell.
Anthony P. Pasquarelli, Rahway, for respondent Rudolph Maurizzi (Methfessel & Werbel, attorneys; Jared E. Stolz, of counsel and on the brief).
Kevin J. Decoursey, Whippany, for respondent Lisa Carmelitano (O'Toole & Couch, attorneys; Michael Della Rovere, on the brief).
Before Judges BRODY, LONG and ARNOLD M. STEIN.
The opinion of the Court was delivered by
BRODY, P.J.A.D.
Plaintiffs in this consolidated personal injury action are five of thirteen college friends, then twenty and twenty-one years old, who had planned to be together for a winter weekend at a condominium in Vernon Township. The owner of the condominium, third-party defendant Rudolph Maurizzi, is the uncle of third-party defendant Lisa Carmelitano, one of the group. He allowed the group to use his condominium, which is one of many such buildings built along the slope of Great Gorge North on either side of a vacant strip of land. During the winter, the vacant strip, which is about a thousand feet long, is the Bunny Buster ski trail. Defendants Stonehill Property Owners Association, Inc. and Hotel Section Condominium Council, Inc. (Stonehill) own the land that contains the condominiums and the Bunny Buster trail. Defendant Great American Recreation, Inc. (defendant) operates the trail as a business under the terms of an easement from Stonehill.
Members of the group arrived on Friday at different times. Early arrivals spent part of the day skiing along various trails in the area. When they finished skiing, some of those returning to the condominium used or crossed the Bunny Buster trail even though defendant had turned off the lights on the trail because by then it had closed for the day. Between ten and eleven o'clock that night, after everyone in the group had arrived at the condominium, defendant turned on the Bunny Buster trail lights to enable its employees to groom the trail for the next day. Grooming is accomplished by using motor vehicles to pull heavy rollers over the trail to tamp down the snow.
Earlier that day, one member of the group discovered a toboggan that Maurizzi had stored in his condominium with other snow equipment. After the lights were turned on, the group decided to slide down part of the trail on the toboggan. There was evidence that other people at the time were using the trail for sledding and tobogganing. The toboggan could hold no more than six people so members of the group took turns riding it. The first two runs were uneventful.
The third run, with six on board, was a disaster. Starting from a point a bit higher than where the first two runs had begun, the toboggan slid down the trail, across a fifty- to sixty-foot flat expanse of snow at the base of the trail, over a flattened snow fence, and then over the edge of a twenty-foot dirt embankment to a parking lot below. One of the six fell off the toboggan before it dropped over the edge, thereby escaping injury. The other five, the plaintiffs, were seriously injured as their bodies hit the embankment, the parking lot and a parking-lot light pole. There was evidence that, at the time of the rescue operation, other people, not associated with plaintiffs' group, who were tobogganing escaped injury by tumbling off their toboggan just before it dropped over the edge.
Claims against all third-party defendants were dismissed on their motions for partial summary judgment. Plaintiffs settled with Stonehill before trial. The jury found that under the New Jersey Ski Statute (Statute), N.J.S.A. 5:13-1 et seq., plaintiffs as a group, defendant and Stonehill were all negligent. The jury apportioned the negligence as follows: plaintiffs 22%, defendant 54% and Stonehill 24%. The jury found that fair and adequate total compensation to all plaintiffs would be $2,475,000.
Defendant's main arguments are: (1) defendant owed no duty to plaintiffs under either the common law or the Statute because they were trespassers at the time of the accident, and (2) even if plaintiffs were not barred from recovery as trespassers, the facts of this case do not render defendant liable under the terms of the Statute. Defendant raised these issues when it moved, unsuccessfully, for involuntary dismissal upon the conclusion of plaintiffs' presentation of evidence, R. 4:37-2(b), and for judgment at the close of all evidence, R. 4:40-1. For reasons that follow, we conclude that defendant is liable under the Statute and that the Statute does not bar the claims of trespassers.
Before discussing those issues, we note that, contrary to defendant's contention, although plaintiffs were trespassers at the time of the accident their claims would not necessarily be barred at common law. "Traditionally, a landowner owed no duty to a trespasser other than to refrain from acts willfully injurious." Renz v. Penn Cent. Corp., 87 N.J. 437, 461, 435 A.2d 540 (1981). The Court held, however, that even traditionally there was a higher standard of care due a trespasser "when the property owned by the landowner can be classified as a dangerous instrumentality." Id. at 462, 435 A.2d 540. Here, the design of the Bunny Buster trail rendered it unexpectedly dangerous. As this accident demonstrated, tobogganers who reached the bottom of the trail would be carried by momentum over the edge of a twenty-foot embankment resulting in serious injury.
The Court in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (1993), signaled its movement away from the rigid common-law distinctions among the standards of care due trespassers, licensees and invitees. There the Court held that a real estate broker owed a duty of reasonable care to a prospective home buyer who was injured when she failed to notice a step and fell while viewing the premises. She was there to attend an "open house" conducted by the broker. In imposing a duty of care on the broker, thereby departing from the common-law requirement that only the property owner had such a duty, the Court said:
The inquiry should be not what common law classification or amalgam of classifications most closely characterizes the relationship of the parties, but ... whether in light of the actual relationship between the parties under all of the surrounding circumstances the imposition on the broker of a general duty to exercise reasonable care in preventing foreseeable harm to its open-house customers is fair and just. That approach is itself rooted in the philosophy of the common law.
Here, on one side of that relationship are young people attracted to a condominium because of its proximity to snow trails and who, not unexpectedly, used defendant's adjacent lighted trail to toboggan after skiing hours. On the other side of the relationship is the operator of the trail, which, as designed, was a near-fatal trap to those using the trail to toboggan. Without having to decide the question, we suggest that even if the Ski Statute did not apply, the operator would have a common-law duty to take reasonable measures to warn such trespassers of that latent danger.
Indeed, such an obligation was recognized by defendant in its cross-claim against Stonehill. Stonehill employed security personnel to police the entire condominium area, including the Bunny Buster trail. That policing included keeping trespassers off the trail at night, but the security force was short-handed that night and failed to police the trail. Defendant's attorney argued in his summation that Stonehill was negligent because it failed to have its security force eject after-hours trespassers. We add that the duty of an owner or occupier of land to warn of such a serious danger may not be delegable. Hopkins, supra, at 441, 625 A.2d 1110 (citing Sanna v. National Sponge Co., 209 N.J.Super. 60, 506 A.2d 1258 (App.Div.1986)).
The Legislature enacted the Ski Statute in 1979 in response to a decision by the Vermont Supreme Court that deprived operators of ski areas of the absolute defense of assumption of risk. Sunday v. Stratton Corp., 136 Vt. 293, 390 A.2d 398 (1978), held that in adopting comparative negligence by statute the legislature of that state intended to replace the absolute defense of assumption of risk with the defense of plaintiff's comparative negligence. Our Legislature was thus moved to consider whether its...
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Brett v. Great American Recreation, Inc.
...the jury to apply the Ski Statute, and the jury returned a verdict for plaintiffs. The Appellate Division affirmed, 279 N.J.Super. 306, 652 A.2d 774 (1995), concluding that the Ski Statute governed and that it was correctly interpreted by the trial court. We granted certification. 141 N.J. ......
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Brett v. Great American Recreation, Inc., C-924
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