Labree v. Millville Mfg., Inc.

• Decision Date: 08 August 1984
• Citation: 481 A.2d 286,195 N.J.Super. 575
• Parties: David LABREE, Plaintiff-Appellant-Respondent, v. MILLVILLE MANUFACTURING, INC., Wawa, Inc., Defendant-Respondent, and Gaskill Construction Company, Defendant-Appellant and J.J. Nugent and John J. Dunn Construction Company, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 575

195 N.J.Super. 575

481 A.2d 286

David LABREE, Plaintiff-Appellant-Respondent, v. MILLVILLE MANUFACTURING, INC., Wawa, Inc., Defendant-Respondent and Gaskill Construction Company, Defendant-Appellant and J.J. Nugent and John J. Dunn Construction Company Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Sept. 14, 1983.

Decided Aug. 8, 1984.

Walter T. Wolf, Bellmawr, for plaintiff-appellant-respondent David LaBree (Farr, Reifsteck, Wolf & Ware, Bellmawr, attorneys; David W. Morgan, Bellmawr, on the brief).

John P. Morris, Bridgeton, for defendant-respondent Millville Mfg., Inc.--Wawa, Inc. (Horuvitz, Perlow, Morris & Baker, Bridgeton, attorneys).

Anthony D. Buonadonna, Vineland, for defendant-appellant-respondent Gaskill Const. Co. (Buonadonna, Benson & Speziali, Vineland, attorneys).

John A. Fratto, Barrington, for defendant-appellant J.J. Nugent and John J. Dunn Const. Co. (Fratto, Little, Alessi & Abbott, Barrington, attorneys).

Before Judges FRITZ, FURMAN and DEIGHAN.

The opinion of the court was delivered by

FRITZ, P.J.A.D.

This is a complex matter, involving three consolidated interlocutory appeals and entailing, among other things, consideration of the reach of N.J.S.A. 2A:42A-2. It is made more difficult by the failure of the trial judge to report findings of fact on crucial issues, contrary to the mandates of R. 4:46-2 and R. 1:7-4. Some of these findings appear in colloquy with counsel on the summary judgment motions involved but we do not consider this compliance with the Rules. ¹

The basic action sounds in negligence. It charges defendants with negligently permitting "large quantities of refuse" to be deposited in an artificial lake to whose creation they contributed, resulting in serious injuries to plaintiff when he was swimming in this lake. The events leading up to this occurrence are set forth in the letter opinion of the trial judge and appear to be uncontested and uncontestable. We borrow from that letter:

The State of New Jersey in the early 1970's constructed an entirely new four-lane limited access highway known as Route 55 running in a north-south direction from Port Elizabeth in Cumberland County to U.S. Route 40 in Gloucester County. With respect to the portion of the highway critical to this case the general contractor was a joint venture known as John J. Dunn and J. J. Nugent Co., hereinafter known as Dunn-Nugent. During the construction of this entirely new right of way it became necessary to obtain sand and gravel for use on the road bed. This was obtained by purchase from defendant Millville Manufacturing Co. (later renamed Wawa). Millville owned extensive holdings adjacent to the right of way of Route 55.

The proposal upon which the contract of construction called for a specified amount of "borrow excavation" including the materials to be obtained from Millville. The job of procurement as well as other portions of the work was sub-contracted by Dunn-Nugent to defendant Gaskill.

Gaskill entered into an agreement with Millville which, tersely stated, permitted Gaskill to excavate on Millville's land to the extent necessary. This excavation was of sufficient magnitude that it resulted in the creation of a lake of approximately 20 acres. This lake was and has been used by members of the public for swimming and bathing but not on a formal organized basis. Work upon the project was completed in 1974.

....

On July 7, 1977, plaintiff went swimming in the lake, dove into the water, hit his head on an obstruction and as a result thereof is a quadraplegic. He then filed suit against Millville as owner, Dunn-Nugent as general contractor, and Gaskill as the responsible sub-contractor.

All defendants moved for summary judgment. The motion of Millville ² was granted and those of Gaskill and Dunn-Nugent were denied. An order was entered granting judgment to Millville on plaintiff's complaint and defendants' cross-claims "based on the Landowner's Liability Act [ N.J.S.A. 2A:42A-2 et seq.]." Dunn-Nugent's motion for summary judgment "based on its relationship with defendant Gaskill" was denied as were Dunn-Nugent's motions for summary judgment for indemnification by Gaskill and Millville. Gaskill's motion for summary judgment "based on the Landowner's Liability Act" was denied. Leave to appeal was granted plaintiff and defendants Dunn-Nugent and Gaskill and these appeals were consolidated. We now affirm.

The particular statute directly implicated is N.J.S.A. 2A:42A-3a. It reads as follows:

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;

....

Plaintiff argues in its appeal brief that an issue of fact exists respecting whether the lake site constitutes premises of a nature sufficient to qualify for immunity under the statute. In passing we observe that "premises" is not defined in the statute. In a second point plaintiff argues the mirror image of the earlier point urging that under Harrison v. Middlesex Water Company, 80 N.J. 391, 403 A.2d 910 (1979) judgment declaring the nonimmunity of Millville should have been entered as a matter of law. After filing a second and third brief answering the cross-appeals of defendants Dunn-Nugent and Gaskill, plaintiff filed a reply brief to the answering brief of Millville in which it asserted two additional points. In this reply brief plaintiff argued that the "disputed existence of various artificial debris submerged in the lake on the property in question" created a fact question respecting whether "the injury-causing instrumentality constituted a 'condition of the land' within the meaning" of the statute. He also urged that the statute should not provide immunity for a landowner "who has violated specific contractual, industrial, regulatory and statutory schemes specifically designed for public safety." ³ Dunn-Nugent in its brief argues that summary judgment should have been entered with respect to it inasmuch as a general contractor is not liable for the negligent acts of an independent contractor and that no such liability was imposed by the terms of any contract. It also insists that its motion for indemnification by Gaskill should have been granted. Finally, recognizing Gaskill's insistence that since it was an "occupier" of the land it, too, was immune under the statute, Dunn-Nugent avers that if Gaskill is immune, it should be immune. Gaskill's one argument, presented in two points, is, as noted above, that since it was an occupier of the land, it should be entitled to the same immunity as Millville.

We turn first to plaintiff's appeal. It is now beyond cavil that the immunity of the statute does not extend to owners or occupiers of land situated "in residential and populated neighborhoods," Harrison v. Middlesex Water Company, supra, 80 N.J. at 397, 403 A.2d 910, but was intended for "undeveloped, open and expansive rural and semi-rural properties," id. at 400, 403 A.2d 910. The question of whether any one plot of land fits such a definition would seem usually to be a fact question. However, our careful review of this record side by side with the findings of the trial judge with regard to facts (which are not materially disputed although some conclusionary statements contrary to the undisputed or indisputable facts are asserted in the record) persuades us, as it apparently persuaded the trial judge, that the minds of reasonable men could not differ regarding the qualification for immunity of the premises in question. These premises are an example of "large tracts or areas of natural and undeveloped lands located in thinly populated rural or semi-rural areas ... having all or most of the characteristics of such ... lands, particularly as to size, naturalness and remoteness or insulation from populated areas." Harrison v. Middlesex Water Company, supra, 80 N.J. at 399, 403 A.2d 910. We arrive at this conclusion aware of the injunction of Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 110 A.2d 24 (1954) that we must give the benefit of all reasonable inferences and any doubt to the opponent of a motion for summary judgment. Neither the statute nor Harrison requires the owned premises to be completely isolated from civilization. As a matter of fact, the statute...