Weber v. U.S.

• Decision Date: 26 January 1998
• Docket Number: No. Civ.A. 96-4610 SSB.,Civ.A. 96-4610 SSB.
• Citation: 991 F.Supp. 694
• Parties: Karen WEBER and Robert J. Weber, Plaintiffs, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of New Jersey

991 F.Supp. 694

Karen WEBER and Robert J. Weber, Plaintiffs, v. The UNITED STATES of America, Defendant.

No. Civ.A. 96-4610 SSB.

United States District Court, D. New Jersey.

January 26, 1998.

Robert L. Gutman, Stephan R. Leone and Associates, L.L.C., Toms River, NJ, for Plaintiffs.

Irene Dowdy, United States Attorney's Office, Trenton, NJ, for Defendant.

AMENDED OPINION ON MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

BROTMAN, District Judge.

Presently before this Court is the defendant United States's ("Government") Motion to Dismiss plaintiffs Karen and Robert Weber's Complaint pursuant to Fed.R.Civ.P. 12(b)(1), (6) or, in the alternative, for Summary Judgment pursuant to Fed.R.Civ.P. 56.

I. FACTS AND PROCEDURAL BACKGROUND

The following facts are not contested. On June 4, 1994, plaintiff Karen Weber ("Plaintiff") was using a swing set in Willow Pond Park. While she was on the swing set, a metal yoke that was holding the swing chain fractured and released the swing chain, causing her to fall to the ground. The fall caused her bodily injury, in addition, the metal yoke fell and hit Plaintiff on her head causing a puncture wound.

Willow Pond Park is located on the premises of the Fort Dix Military Reservation. The Park is owned by the United States of America. It was opened in May 1984 and has been in continuous use since then. The area of the Fort Dix Military Reservation where the Park is located is an "open" military base, i.e., there is unrestricted access to that portion of Fort Dix. The Park itself is open for use by the general public.

Willow Pond Park comprises approximately thirty-five (35) acres. There is various recreational equipment and facilities located on the Park's premises, including: swing sets, picnic tables, barbeques, park benches, basketball courts, a large pond, and a pavilion. A nominal fee is charged for use of the pavilion on those occasions when it is reserved in advance for use by a particular group. No fee of any kind is charged for access to or use of any other portion of the Park.

II. DISCUSSION

The Government seeks dismissal of Plaintiffs' Complaint for lack of subject matter jurisdiction.¹ Specifically, it contends that this Court lacks subject matter jurisdiction because Plaintiffs have no cause of action under the substantive law of New Jersey.

A. The Federal Tort Claims Act

"It is elementary that `[t]he United States, as sovereign, is immune from suit save as it consents to be sued ..., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). A claim against the United States is barred for lack of subject matter jurisdiction unless it falls within an applicable waiver of sovereign immunity. See Mitchell, 445 U.S. at 538. "A waiver of sovereign immunity `cannot be implied but must be unequivocally expressed'" by Congress. Id. (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969)).

The Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, grants a limited, qualified waiver of the federal government's sovereign immunity. It unequivocally "waives sovereign immunity as to claims against the United States for money damages for injury caused by the negligent or wrongful act or omission of a government employee acting within the scope of his 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.'" Beneficial Consumer Discount Co. v. Poltonowicz, 47 F.3d 91, 95-96 (3d Cir.1995) (quoting 28 U.S.C. § 1346(b)). A plaintiff may recover against the United States only to the extent that recovery would be permitted under the substantive tort law of the state where the complained of conduct took place. Ciccarone v. United States, 486 F.2d 253, 257 (3d Cir.1973). The waiver of the United States' sovereign immunity may not be enlarged by the courts, and its consent to be sued must be construed strictly in favor of the sovereign. See United States v. Nordic Village, 503 U.S. 30, 34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992).

The FTCA did not itself create a substantive cause of action against the United States. Rather, it conferred a procedural remedy by which substantive state law could be applied against the federal government. Therefore, in each FTCA case the "controlling question is whether the substantive law of [the state where the alleged wrong occurred] permits ... recovery from the United States under the facts of th[e] case." Certain Underwriters at Lloyds' v. United States, 511 F.2d 159, 161 (5th Cir.1975). In this case, the substantive law of New Jersey governs because it is the state where the complained of conduct took place.

B. The New Jersey Playground Act

The Government contends that Plaintiffs have no cause of action because the New Jersey Playground Act ("Playground Act"), N.J.Stat.Ann. § 5:3-30, provides immunity against tort liability in this case. The Playground Act states:

No person maintaining or operating a playground for public use acquired or maintained for philanthropic purposes and not for profit, shall be liable in damages for accidents happening within the bounds of such playground.

The Playground Act has only been judicially construed once in Primo v. City of Bridgeton, 162 N.J.Super. 394, 392 A.2d 1252 (Law Div.1978), a case factually similar to the one presently before this Court. In Primo, Plaintiff sustained personal injuries while using a slide in a playground located within a municipal park. Id. 392 A.2d at 1253. She sued the municipality claiming it was negligent in constructing, designing, installing, and maintaining the slide. Id. The court held that the municipality was not entitled to immunity under the Act because it was not maintaining the playground for "philanthropic purposes," as required by the Act. Id. at 1254-55.

In reaching its holding, the court chose to adopt a very narrow definition of "philanthropic purpose." The court adopted a definition of "philanthropic" synonymous with "charitable." Id. at 1254. The fact that the municipality was not maintaining the playground for profit and there was no fee charged for the use of the playground was not enough to establish that the playground was operated for a "philanthropic purpose." Id. at 1254. The court still found that the municipality was not acting charitably since it relied on revenues gained through taxation to maintain the playground. Id. Instead, it found that the municipality maintained the playground for "municipal purposes," for the "public health and welfare." Id. at 1255. The court, therefore, concluded that the municipality was not entitled to immunity under the Playground Act.

The Government has provided no evidence to show that it maintains the Willow Pond Park playground for charitable or philanthropic purposes. Rather, it appears that, like the playground in Primo, the Government maintains the playground for "municipal purposes;" that is, it uses revenues gained through taxation dollars to maintain the playground for the public health and welfare. The Playground Act, therefore, can not at this point provide the Government with relief from tort liability in this case.²

C. The New Jersey Landowner's Liability Act

The Government also contends that Plaintiffs have no cause of action because the New Jersey Landowner's Liability Act ("LLA"), N.J.Stat.Ann. § 2A:42A-2 et seq., provides immunity against tort liability in this case. As amended in 1991, and effective January 18, 1992, the LLA provides in pertinent part:

2A:42A-2. Sport and recreational activities; definitions

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, operating or riding snowmobiles, all-terrain vehicles or dirt bikes, and any other outdoor sport, game and recreational activity including practice and instruction in any thereof.

2A:42A-3. Duty to keep premises safe for entry or use of others

Except as provided in section [2A:42A-4]:

a. An owner, lessee or occupant of premises, whether or not posted as provided in section 23:7-7 of the Revised Statutes, and whether or not improved or maintained in a natural condition, or used as part of a commercial enterprise, owes no duty to keep the premises safe for entry or use by others for sport or recreational activities, or to give any 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.

2A:42A-4. Liability towards persons injured on premises

This act shall not limit the liability which would otherwise exist:

a. For willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity;

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; or

c. For injury caused, by acts or persons to whom permission to engage in sport or recreational activity was granted, to other persons as to whom...