Hallacker v. National Bank & Trust Co. of Gloucester County

• Decision Date: 04 December 1986
• Docket Number: No. 86-5268,86-5268
• Parties: Elaine HALLACKER, individually and as Administratrix and Administratrix ad Prosequendum of the Estate of Albert Joseph Hallacker, Jr., Deceased, Appellant, v. NATIONAL BANK & TRUST CO. OF GLOUCESTER COUNTY, Defendant/Third-Party Plaintiff Appellee, v. Edmund and Dolores RUDD, j/s/a, Third Party Defendants.
• Court: U.S. Court of Appeals — Third Circuit

Page 488

806 F.2d 488

Elaine HALLACKER, individually and as Administratrix and Administratrix ad Prosequendum of the Estate of Albert Joseph Hallacker, Jr., Deceased, Appellant, v. NATIONAL BANK & TRUST CO. OF GLOUCESTER COUNTY, Defendant/Third-Party Plaintiff Appellee, v. Edmund and Dolores RUDD, j/s/a, Third Party Defendants.

No. 86-5268.

United States Court of Appeals, Third Circuit.

Argued Nov. 18, 1986.

Decided Dec. 4, 1986.

Michael A. Ferrara, Jr. (argued), Ferrara and Waldman, P.A., Cherry Hill, N.J., for appellant.

Robert L. Grundlock, Jr. (argued), William F. Keating, LaBrum and Doak, Woodbury, N.J., for defendant/third-party plaintiff appellee.

Before SEITZ, GIBBONS, and HUNTER, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This diversity action requires us to construe N.J.Stat.Ann. Sec. 2A:42A-2 et seq. (West Supp.1986), the Landowners' Liability Act ("LLA"), which limits the tort liability of landowners under certain conditions. Plaintiff-appellant Elaine Hallacker brought a wrongful death action against defendant-appellee National Bank & Trust Co. of Gloucester County ("Bank") after her husband, Albert Hallacker, died as a result of injuries sustained on the defendant's property. The Bank filed a motion for summary judgment on Hallacker's complaint, arguing that the Bank was immune from liability under the LLA. The Bank's motion was granted by the district court, and this appeal followed.

On June 30, 1982, decedent Albert Hallacker, appellant Elaine Hallacker, and their infant son visited a vacation cottage at Wilson Lake Memorial Park ("Park"), located in Clayton, New Jersey. The Hallackers were invited to the Park by their friends Edward Hickey and Diane Winning, who had received permission to use the cottage from the Rudds, who in turn leased the cottage from the Bank. The Hallackers arrived at the cottage at about 11:00 a.m. After approximately two and one half hours of unpacking, picknicking, and card-playing, Albert Hallacker decided to take a swim in the lake. He walked to the end of a short boat dock and dove head-first into the water, striking his head on the bottom of the lake and shattering a cervical vertebra. The water was only two and one half feet deep. Two weeks later, Albert Hallacker died as a result of this injury.

Appellee Bank was appointed trustee of Wilson Lake Memorial Park by the last will and testament of the Park's former owner, George H. Wilson. The Park consists of approximately 840 acres. Within an area of 140 acres, the Park contains 76 rental cottages, 107 campsites, 9 docks, and a recreational lake. The Park has only one paved road. The cottages and campsites are primarily rented out on a seasonal basis, although a handful of retired persons live at the Park year-round. Under the terms of the lease agreement, no subletting or loaning of the rental property by the lessee is permitted. Under the rules and regulations of the Park, which are incorporated by reference into the lease agreement, swimming is only permitted in a specified area of the lake. The spot at which Albert Hallacker suffered his fatal injury was not within this specified area. There were no signs warning "No Swimming" or "No Diving" at the place where Hallacker's accident occurred.

The Landowner's Liability Act, N.J. Stat.Ann. Sec. 2A:42A-2 et seq., provides in pertinent part as follows:

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 and any other outdoor sport, game and recreational activity including practice and instruction in any thereof.

Except as provided in section 3 of this act:

a. An owner, lessee or occupant of premises, whether or not posted as provided in section 23:7-7 of the Revised Statutes, 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;

b. An owner, lessee or occupant of premises who gives permission to another to enter upon such premises for a sport or recreational activity or purpose does not thereby (1) extend any assurance that the premises are safe for such purpose, or (2) constitute the person to whom permission is granted an invitee to whom a duty of care is owed, or (3) assume responsibility for or incur liability for any injury to person or property caused by any act of persons to whom the permission is granted.

This act shall not limit liability which would otherwise exist:

a. For willful or malicious failure to guard, or 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....

Assuming without deciding that Wilson Lake Memorial Park is the kind of "premises" that comes within the purview of the LLA, we will confine our discussion in this case to whether or not the language of the Act precluding immunity where "permission to engage in sport or recreational activity on the premises was granted for a consideration," N.J.Stat.Ann. Sec. 2A:42A-4(b), is applicable here. Through a careful review of the rules of statutory construction, the policies underlying the enactment of the statute, and the plain language of the statute, we conclude that, as applied to the facts of this case, the consideration clause deprives the Park of any immunity it might otherwise have under the LLA.

Prior to the enactment of the LLA in New Jersey, the common law liability of a landowner towards a third party injured upon his premises was determined by the status of the third party, i.e., whether he was a trespasser, a licensee, or an invitee. See Handleman v. Cox, 39 N.J. 95, 102, 187 A.2d 708, 711 (1962). The LLA abrogated the status-based distinctions of the common law where land is used for recreational purposes. Since the LLA is in derogation of the common law, it must be strictly construed. Krevics v. Ayars, 141 N.J.Super. 511, 516, 358 A.2d 844, 846-47 (Law Div.1976). Strict construction is especially appropriate when examining a statute like the LLA, which confers immunity upon a particular class of potential tortfeasors. See Harrison v. Middlesex Water Co., 80 N.J. 391, 401, 403 A.2d 910, 914 (1979). As the New Jersey Supreme Court noted in construing the LLA, "[w]e must assume that the Legislature is mindful that immunity from liability for the negligent infliction of injury upon others is not favored in the law. It leaves unredressed injury and loss resulting from wrongful conduct." Id. Strict construction in this case requires broad construction of the consideration clause. See Copeland v. Larson, 46 Wis.2d 337, 346, 174 N.W.2d 745, (1970).

The common law definitions of trespasser, licensee, and invitee, and the duties owed to them by landowners, are clear under New Jersey law. "A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise." Restatement (Second) of Torts Sec. 329 (1965). Generally, a landowner has no duty of care towards a trespasser, except to refrain from wilfully injurious acts. Renz v. Penn Central Corp., 87 N.J. 437, 435 A.2d 540 (1981). A licensee is allowed upon the land by virtue of landowner's consent; he is not invited onto the premises, rather, his presence is "suffered" by the landowner. Snyder v. I. Jay Realty Co., 30 N.J. 303, 312, 153 A.2d 1, 5-6 (1959). With respect to the licensee, the landowner is required neither to inspect his land in order to discover defects, nor to maintain the premises in a safe condition. If the landowner knows of a dangerous condition, however, and believes that his licensee is unlikely to discover it on his own, he is under an obligation either to make the condition reasonably safe or to warn his licensee of the danger. Handleman v. Cox, 39 N.J. at 103, 187 A.2d at 712. Finally, an invitee is a party explicitly invited onto the landowner's premises, to whom the landowner owes a duty of reasonable care, and for whom he must provide "a reasonably safe place to do that which is within the scope of the invitation." Butler v. Acme Markets, 89 N.J. 270, 275, 445 A.2d 1141, 1143 (1982). Within this class of persons are "business invitees," those invited onto the premises by the landowner for the purpose of conducting business, or whose presence on the land is a direct or indirect source of profit to the landowner. Id. The social guest of a lessee of a landowner is the...