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Alfano v. Middlesex Water Company

A-1679-08T2 (N.J. Super. App. Div. 2009) (Unpublished)

LANDOWNER’S LIABILITY ACT — New Jersey’s Landowner’s Liability Act, protecting owners of improved or unimproved land by those who use the land for sports or recreational activities, serves to protect against claims by passengers on all-terrain vehicles because even riding on such vehicles is included within the definition of sport and recreational activities.

A minor, riding as a passenger, was severely injured when an all-terrain vehicle (ATV) flipped. He sued the driver and the owner of the property where they were driving. The basis for the suit against the property owner was that it: (a) owned or had control of the property; (b) had negligently maintained and controlled the premises so as to create an attractive nuisance for children; and (c) knowingly permitted such access for a continuous and long period of time. The property owner argued that it was entitled to immunity under the Landowner’s Liability Act (LLA) and that the injured child was a trespasser to whom the property owner owed no duty.

The lower court dismissed the case, ruling that the relevant statute exempted a landowner from liability to those who use property for “sport or recreational activities … .” It noted that the minor was on the property for the express purpose of engaging in the recreational sport of riding the ATV. The child’s guardian ad litem appealed, claiming the statute did not apply to passengers.

The Appellate Division affirmed, finding that the statute included “operating or riding ... all-terrain vehicles or dirt bikes” within the definition of “sport and recreational activities.” Thus, it ruled that the activity of “riding” as a passenger on the ATV was expressly included in the definition. It also held that the Legislature even had amended the LLA to define more broadly the type of “premises” to include “premises” whether or not improved or maintained in a natural condition or used as a part of a commercial enterprise. Moreover, the Legislature also had added a provision mandating that the LLA be “liberally construed.” Although the Court noted that one of its prior rulings had held that the LLA does not immunize owners of suburban residential property, these particular premises were largely undeveloped.

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