Harrison v. Middlesex Water Co.

Decision Date28 June 1979
PartiesLouise T. HARRISON, Administratrix ad Prosequendum of the Estate of William B. Harrison, Deceased, Plaintiff-Appellant, v. MIDDLESEX WATER COMPANY and Township of Clark, New Jersey, Defendants-Respondents.
CourtNew Jersey Supreme Court

William J. Gearty, Freehold, for plaintiff-appellant.

Robert T. Hueston, Elizabeth, for respondent Middlesex Water Co. (Hueston, Hueston & Sheeran, Elizabeth, attorneys).

Michael John Stone, New Brunswick, submitted a letter in lieu of brief on behalf of respondent Tp. of Clark (Hoagland, Longo, Oropollo & Moran, New Brunswick, attorneys).

The opinion of the court was delivered by

HANDLER, J.

This Court is presently called upon to interpret the scope of the New Jersey Landowner's Liability Act, N.J.S.A. 2A:42A-2 Et seq. The question raised by this appeal is whether that Act immunizes the defendant Middlesex Water Company from liability for the death of plaintiff's decedent who drowned while attempting to rescue two children who had fallen through an ice covered lake located on defendant's property.

I

The appeal, arising from a wrongful death action brought by decedent's wife against Middlesex Water Company (Middlesex or Company) and the Township of Clark, comes before the Court on a motion for involuntary dismissal granted at the close of plaintiff's case. Accepting as true all the evidence which supports the plaintiff's position together with all the legitimate inferences therefrom (R. 4:37-2(b)) the following factual picture emerges.

Middlesex Water Company owns and maintains a reservoir and water treatment plant located in the Township of Clark. The reservoir was created by the defendant and its predecessor in 1907 through the damming of a minor tributary of the Rahway River. This resulted in the creation of a man-made lake covering 94 acres in what was then a relatively unpopulated area. A treatment plant and pumping station lie adjacent to the reservoir. Surrounding the lake are 42 acres of land also owned by Middlesex. The 136 acres are currently situated in an area zoned for residential use. The surrounding area has become heavily populated and the property is bounded by a regional high school, several athletic fields, a tennis court, two social clubs and a number of private homes whose rear lots extend almost to the edge of the lake.

The greater part of Middlesex Water Company's property is unfenced, with the result that the lands have been openly accessible to and used freely and frequently by the public. The reservoir waters have long been utilized for swimming and ice skating by the residents of Clark Township and the public generally. From 1959 to 1969 Middlesex hired special employees to patrol the reservoir to exclude trespassers, but that practice was subsequently discontinued. Other than the posting of "no trespassing" signs the defendant takes no specific steps to guard against trespassers nor does it take any other measures to regulate or supervise the public's use of its land and waters. On the day of the drowning, close to 100 people were on the ice.

On February 6, 1972 plaintiff's decedent died in the reservoir waters while attempting to rescue two 15 year old boys who had fallen through the ice while skating. That day was the first of the season on which the water had frozen sufficiently to permit ice skating; as recently as the previous day there had been patches of thin ice and areas of open water in the reservoir. No signs of warning or danger were posted and no persons were assigned to patrol the area or supervise the ongoing activities. Approximately two hours before the accident occurred, snow had begun to fall, covering the frozen surface of the lake and making it difficult to determine the thickness of the ice. Responding to the boys' cries for help, decedent was able to rescue one youth while the other drowned with decedent. No rescue equipment was available to aid in the rescue attempt.

Plaintiff thereafter instituted a wrongful death action against the defendants, Middlesex Water Company and the Township of Clark. With regard to the first defendant, Mrs. Harrison contended that since Middlesex created and maintained the reservoir the company was obligated to prevent infants from skating when the ice was unsafe and to supply rescue equipment for use should any mishap occur. With regard to the Township, plaintiff contended that it failed properly to police and supervise the property. Middlesex denied that it owed any duty of care to plaintiff's decedent and also asserted that it was immune from suit by virtue of N.J.S.A. 2A:42A-2 to -5.

After the close of plaintiff's case at trial, held before a jury, Middlesex moved for an involuntary dismissal. The trial court granted the motion on the ground that the thin ice on the surface of the reservoir was not a dangerous artificial condition which gave rise to a duty to prevent persons from entering onto the land. The court also granted the Township's motion for judgment pursuant to R. 4:40-1. The Appellate Division affirmed. 158 N.J.Super. 368, 386 A.2d 405 (1978). However, as to Middlesex, the appellate court held that the Landowner's Liability Act, N.J.S.A. 2A:42A-2 Et seq., "provides that the water company owes no duty to keep the premises safe from anyone using the premises for sport and recreational activity including skating". Id. at 378, 386 A.2d at 410. This Court granted plaintiff's petition for certification limited solely to the question of the liability of defendant Middlesex Water Company, 78 N.J. 402, 396 A.2d 589 (1978).

II

The New Jersey Landowner's Liability Act provides, in relevant part, that:

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 * * *. (N.J.S.A. 2A:42A-3).

The statute further provides that:

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. (Id.).

In addition, N.J.S.A. 2A:42A-2 defines "sport and recreational activities" to mean and include:

* * * 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.

Since the enactment of the amendment to the Landowner's Liability Act in 1968 this Court has considered the meaning of that statute only once, in Boileau v. De Cecco, 65 N.J. 234, 323 A.2d 449 (1974). In that case, we affirmed without opinion the decision of the Appellate Division, 125 N.J.Super. 263, 310 A.2d 497 (App.Div.1973). The controversy there involved a wrongful death action brought against the defendant owner of a backyard swimming pool into whose shallow end the deceased had dived, thereby sustaining fatal injuries. The Appellate Division held that the word "premises" as used in the statute was not intended to include suburban homeowners within the class of protected landowners, but rather was intended to bring within the ambit of the Act's protection only those owners of rural or semi-rural tracts of land on whose property the enumerated activities occurred. We continue to adhere to the view that the Act does not grant immunity from liability to the owners or occupiers of land situate, as here, in residential and populated neighborhoods.

We recognize that the meaning of the language of the statute is itself not clear. The use of the word "premises" in conjunction with a reference to the posting statute (N.J.S.A. 23:7-7), without further definition, creates some unsureness of the statute's intended scope. The uncertainty as to the type of lands intended to be covered is not totally eliminated by the broad enumeration of "sport and recreational activities" in N.J.S.A. 2A:42A-2. The statutory ambiguity has been witnessed by the struggles of lower courts to fashion a sensible and consistent approach in applying the Act. Compare, E. g., Tallaksen v. Ross, 167 N.J.Super. 1, 400 A.2d 485 (App.Div.1979); Magro v. City of Vineland, 148 N.J.Super 34, 371 A.2d 815 (App.Div.1977); Odar v. Chase Manhattan Bank, 138 N.J.Super. 464, 351 A.2d 389 (App.Div.), certif. den. 70 N.J. 525, 361 A.2d 540 (1976); Krevics v. Ayars, 141 N.J.Super. 511, 358 A.2d 844 (Law Div.1976); Scheck v. Houdaille Const. Materials, Inc., 121 N.J.Super. 335, 297 A.2d 17 (Law Div.1972); O'Connell v. Forest Hill Field Club, 119 N.J.Super. 317, 291 A.2d 386 (Law Div.1972). We are thus enjoined to look as best we can for the underlying intent and the overriding purpose of the Legislature in the enactment of the statute. See, E. g., State v. Madden, 61 N.J. 377, 294 A.2d 609 (1972); Safeway Trails, Inc. v. Furman, 41 N.J. 467, 197 A.2d 366, appeal dismissed and Cert. den. 379 U.S. 14, 85 S.Ct. 144, 13 L.Ed.2d 54 (1964); DeFazio v. Haven Savings and Loan Ass'n, 22 N.J. 511, 126 A.2d 639 (1956).

Frequently the examination of legislative history can illumine the search for a proper understanding of a puzzling statute. Malone v. Fender, 80 N.J. 129, 402 A.2d 240 (1979). The background of the Landowner's Liability Act, however, is not rich. There was no statement of purpose accompanying the bill, Senate Bill No. 325 (19...

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