                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5300-18T1

TERI TOMPKINS,

          Plaintiff-Appellant,

v.

COUNTY OF MERCER,
and MERCER COUNTY PARK
COMMISSION,

     Defendants-Respondents.
__________________________

                    Argued telephonically May 12, 2020 –
                    Decided August 12, 2020

                    Before Judges Hoffman and Currier.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Mercer County, Docket No. L-0914-18.

                    Rachel E. Holt argued the cause for appellant
                    (Rebenack, Aronow & Mascolo, LLP, attorneys; Craig
                    M. Aronow, of counsel; Rachel E. Holt, on the briefs).

                    John K. Maloney, Assistant County Counsel, argued
                    the cause for respondents (Paul R. Adezio, Mercer
                    County Counsel, attorney; John K. Maloney, on the
                    brief).
PER CURIAM

      Plaintiff Teri Tompkins appeals from the July 19, 2019 Law Division

order granting the summary judgment dismissal of her complaint against

defendants Mercer County Park Commission and Mercer County. We affirm.

      The facts of this case are relatively simple and undisputed. On September

20, 2017, plaintiff brought her dog and grandson to the Mercer County Dog Park

for an "outing." After five minutes of playing fetch with her dog and walking

around in the dog park, plaintiff stepped into a hole, injuring her left foot.

According to her orthopedic surgeon, plaintiff sustained "[l]eft foot comminuted

oblique displaced fractures of the distal shafts of the second and third

metatarsals with superficial peroneal nerve injury," with resulting "loss of

motion and residual stiffness."

      On April 30, 2018, plaintiff filed a complaint against defendants alleging

they negligently maintained their premises, causing plaintiff to suffer severe

permanent bodily injuries.    On May 16, 2018, defendants filed an answer

asserting fifteen affirmative defenses.

      At his deposition, Luis Reyes, the Deputy Director for the Mercer County

Park Commission's Park Rangers admitted he received complaints of holes in

the dog park. He stated Robert Doherty, the Supervisor of Mercer County Parks


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                                          2
Maintenance, told him the dog park was closed on the day of plaintiff's injury

for maintenance issues. According to Reyes, there was a sign posted at the

entrance of the park stating the dog park was closed. He acknowledged the hole

at issue was a dangerous condition.

      Doherty was also deposed and acknowledged the hole on the date of the

incident was a hazard to individuals visiting the dog park. He confirmed it was

the responsibility of his department to fill any holes that may appear upon

receiving notice of them. He explained his department entered the dog park

every morning, checked the area, removed trash, and provided any general

cleanup. He acknowledged he received about three to four complaints a year

concerning holes in the dog park; however, he did not recall if a person was ever

injured in the dog park because of a hole. He believed a sign indicating the dog

park was closed would have been posted a week before the day of the closure,

but acknowledged the dog park was not physically closed.

      David Buxton, the director of the park rangers for the Mercer County Park

Commission, was also deposed. He explained park rangers were required to log

their daily patrols; however, the park rangers working on the day of the incident

did not indicate in their logs they patrolled the dog park.




                                                                         A-5300-18T1
                                        3
       At the conclusion of discovery, defendants filed a motion for summary

judgment. Following oral argument, the judge granted defendants' motion and

dismissed plaintiff's complaint with prejudice. In pertinent part, the judge ruled

defendants were immune under the Landowners Liability Act 1 (LLA) because

the Mercer County Dog Park constituted a recreation facility.          The judge

explained, "Assuming the facts proposed by plaintiff are true, the dog park is a

recreation facility as defined in N.J.S.A. 2A:42A-2. Therefore, defendant[s are]

immune and the case is dismissed."

       This appeal followed, with plaintiff arguing "the trial court erred as a

matter of law in granting [d]efendants' motion for summary judgment as there

exists a genuine issue of material fact as to whether [d]efendants are immune

from liability under the [LLA]."

                                        I

       When reviewing an order granting summary judgment, we "employ the

same dismissal standards governing the trial court." Lee v. Brown, 232 N.J.

114, 126 (2018) (citing Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344,

349-50 (2016)). Rule 4:46-2(c) states that summary judgment should be granted

where the motion record "show[s] that there is no genuine issue as to any


1
    N.J.S.A. 2A:42A-1 to -10.
                                                                          A-5300-18T1
                                        4
material fact challenged and that the moving party is entitled to a judgment or

order as a matter of law."

      The rule also states that "[a]n issue of fact is genuine only if, considering

the burden of persuasion at trial, the evidence submitted by the parties on the

motion, together with all legitimate inferences therefrom favoring the non-

moving party, would require submission of the issue to the trier of fact." Ibid.

Furthermore, "[i]f there exists a single, unavoidable resolution of the alleged

disputed issue of fact, that issue should be considered insufficient to consti tute

a 'genuine' issue of material fact for purposes of Rule 4:46-2." Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986)).

      The LLA was intended to shield from liability private owners of rural or

semi-rural lands used by the public for sport and recreational activities.

Harrison v. Middlesex Water Co., 80 N.J. 391, 399-401 (1979). In pertinent

part, the LLA provides:

            An owner . . . of premises . . . 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 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.

                                                                           A-5300-18T1
                                        5
            [N.J.S.A. 2A:42A-3(a) (emphasis added).]

      The immunity applies, even if the owner expressly permits entry by the

public:

            An owner . . . 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.

            [N.J.S.A. 2A:42A-3(b).]

      The statute defines "sport and recreational activities" by a non-exclusive

list of pursuits and activities ranging from relatively passive picnicking, to

active hunting, riding, and skiing.

            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.

            [N.J.S.A. 2A:42A-2.]




                                                                        A-5300-18T1
                                       6
      The LLA does not shield landowners from liability for their willful or

malicious acts, or when the landowner received consideration from the injured

party for the right to use the land.

             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; 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 . . . .

             [N.J.S.A. 2A:42A-4.]

      In Harrison, the Court considered whether the defendant water company

was immune under the LLA from liability for the death of an individual who

drowned while attempting to rescue two children, who had fallen through the

ice in a lake on the company's property. 80 N.J. at 394. At the time, the LLA

provided that an owner, lessee or occupant of premises, whether or not posted

pursuant to N.J.S.A. 23:7-7, owed no duty to keep the premises safe or to warn

of a dangerous condition when entered or used by others for sport or recreational

purposes. Id. at 396 (citing N.J.S.A. 2A:42A-3).



                                                                         A-5300-18T1
                                        7
      The Court stated the history of the law, and its reference to the posting

statute, indicated that "the kind of premises which the Legislature contemplated

when it enacted the [LLA] was primarily undeveloped, open and expansive rural

and semi-rural properties . . ." Id. at 400. The Court held that the LLA did not

apply in that case because the drowning occurred

            on an improved tract situated in a highly populated
            suburban community. It is surrounded by both private
            homes as well as public recreational facilities. It is
            unlike lands located in rural or woodland reaches where
            the activities of people thereon cannot be supervised or
            controlled and where the burden of guarding against
            intermittent trespassers may far outweigh any risk to
            such persons and the presence of such persons may be
            difficult to foresee and contain. In contrast, the
            reservoir area here lies in a populous setting where such
            factors are less substantial.

            [Id. at 401-02.]

      In Toogood v. St. Andrews Condominium Ass'n, we considered whether

the LLA applied in a case where the plaintiff was injured while rollerblading on

a road in a residential condominium development. 313 N.J. Super. 418, 420

(App. Div. 1998). We noted the Court in Harrison determined the Legislature

intended to provide immunity to owners of "primarily undeveloped, open and

expansive rural and semi-rural tracts of land." Id. at 423.




                                                                        A-5300-18T1
                                        8
      We additionally noted that, after the Harrison decision, the Legislature

amended N.J.S.A. 2A:42A-3 and provided that the immunity applied with regard

to activities on land, whether in a natural or improved state or whether the land

is the site of a commercial enterprise. Id. at 424. We observed that the 1991

amendments were enacted in response to our decision in Whitney v. Jersey

Central Power & Light Co., 240 N.J. Super. 420 (App. Div. 1990), where we

held that the LLA did not apply to a former railroad right of way in a State

wildlife preserve, which had been converted to a roadway and used to gain

access to power lines. Ibid.

      We said the purpose of the 1991 amendments "was not to expand the scope

of the premises subject to the Act but to enhance and remove impediments to

the immunity already afforded to rural and semi-rural tracts of land." Id. at 425.

We additionally noted, "The 1991 amendments to the act are clearly designed to

focus the inquiry on the dominant character of the land and to account for the

evolving types of activities considered recreational pursuits." Id. at 425-26.

                                            II

      As a threshold matter, it is well-settled that public entities such as Mercer

County Park Commission and Mercer County can be covered by the LLA.

Trimblett v. State, 156 N.J. Super. 291, 294-95 (App. Div. 1977) (State covered


                                                                           A-5300-18T1
                                        9
by LLA in wrongful death claim arising out of boating accident at State-owned

Round Valley Reservoir). The Tort Claims Act provides that a public entity

may avail itself of any defenses that would be available to a private person.

N.J.S.A. 59:2-1(b). Consequently, the State enjoys the same protections under

the LLA that are available to private property owners. Trimblett, 156 N.J. Super.

at 295. That is so, even though the LLA's immunity may be broader than the

protections under the Tort Claims Act itself. Rochinsky v. State, Dep't of

Transp., 110 N.J. 399, 409 (1988).

      Plaintiff argues defendants cannot benefit from LLA immunity because

the activity plaintiff was engaged in at the time of her injury was "not the type

of 'sports and recreational activity' contemplated by the LLA."         Plaintiff

contends immunity is only provided to activities, which "require the injured

individual to have some . . . level of physical interaction with or on the

premises."

      Plaintiff relies on Villanova v. American Fed'n of Musicians, Local 16,

123 N.J. Super. 57 (App. Div. 1973), where we addressed whether a county park

commission was immune from liability to a musician who was injured while

working at a free public concert at the park. We explained:

             Generally speaking, the activities specifically
             enumerated by the Legislature are more physical than

                                                                         A-5300-18T1
                                      10
            not; are of a nature for the most part typically requiring
            the outdoors; and are not on the whole "spectator
            sports," but rather activities in which the individual
            using the land is himself involved. The statute thus
            viewed, it appears to us that in the particular
            circumstances of the case before us . . . the Legislature
            did not intend the immunity provided by this statute to
            apply.

            [Id. at 59.]

      In Villanova, the plaintiff was employed to perform music and therefore

was not using the land in a recreational manner, but rather intended to use the

land for employment purposes. In contrast, here plaintiff was not working;

instead, she was using the dog park by walking her dog on the premises, playing

catch with her dog, and enjoying the dog park with her grandson. All her actions

were voluntary and she was not compensated.           We are satisfied that our

Villanova decision does not support plaintiff's position.

      In the same vein, while the statute enumerated a number of activities it

deemed recreational, the breath of the LLA is broad, permitting numerous

unenumerated activates that also encompass recreational activities.           For

example, the liberal construction provision added in 1991, along with other

amendments, "focus the inquiry on the dominant character of the land and . . .

account for the evolving types of activities considered recreational pursuits."

Toogood, 313 N.J. Super. at 425-26. Therefore, it is clear that bringing a dog

                                                                         A-5300-18T1
                                       11
and grandchild to a dog park for an outing constitutes recreational activity.

Also, the Legislature specifically listed "dog training" as a recreational activity,

which falls right in line with plaintiff playing fetch with her dog.

      Plaintiff contends the judge erred because she was in a dog park, which is

not the type of land where LLA immunity applies. She claims the dog park is

in a residential area. Additionally, plaintiff argues the intent of the LLA applies

only to properties that "could not possibly be adequately maintained and

render[ed] safe"; here, the Supervisor of Mercer County Parks Maintenance

confirmed that it was the responsibility of his department to fill the holes as soon

as he received notice of them.

      Notably, the text of the LLA does not define the "premises" to which it

applies. Toogood, 313 N.J. Super. at 422. However, courts interpreting the Act

have held that it does not apply to land located "in residential and populated

neighborhoods," Harrison, 80 N.J. at 397 (1979), but was intended to provide

immunity for "undeveloped, open and expansive rural and semi-rural

properties." Id. at 400.

      The statute was amended in 1991 to clarify that the Act applies to such

rural or semi-rural land "whether or not improved or maintained in a natural

condition." Toogood, 313 N.J. Super. at 423. The amendment specifically


                                                                            A-5300-18T1
                                        12
states, "It shall be liberally construed to serve as an inducement to the owners,

lessees and occupants of property, that might otherwise be reluctant to do so for

fear of liability, to permit persons to come onto their property for sport and

recreational activities." Toogood, 313 N.J. Super. at 425 (quoting N.J.S.A.

2A:42A-2).

      In Weber v. United States, the federal district court held that the LLA

applied to a thirty-five-acre park in Fort Dix containing "swing sets, picnic

tables, barbeques, park benches, basketball courts, a large pond and a pavilion."

991 F. Supp. 694, 695 (D.N.J. 1998). The park was a large open-area on the

military reservation, which the general public was permitted to use for

recreational purposes. The plaintiff fell from a swing set in the park and suffered

injuries. Ibid.

      Plaintiff also cites Benjamin v. Corcoran, where a dog bit a child while

sledding at the New Jersey's Fireman Home (the Fireman's Home), an "improved

tract of land in a populated suburban area." 268 N.J. Super. 517, 531 (App. Div.

1993). An employee of the Fireman's Home who lived in a house on the property

owned the dog. In reasoning that the Fireman's Home was not a covered

premise, the Benjamin court described its grounds and surroundings:

             The grounds of the [Fireman's Home] are surrounded
             by residential lots. On the grounds there were several

                                                                           A-5300-18T1
                                       13
            buildings, including the [Fireman's Home's]
            administrative building and main building, two houses,
            and a barn. The location where [the child] was sleigh
            riding when he was attacked was near the structures and
            driveway, and only 100 to 150 feet from the Corcoran's
            house. The land was not located in a rural or woodland
            area.

            [Ibid.]

In our view, the LLA did not apply to such "developed land in a populated

suburban area." Id. at 532.

      Based on our analysis in Benjamin, we conclude the dog park must be

considered in the larger context of the Mercer County Park when determining

the dominant character of land; however, we conclude that Benjamin is factually

distinguishable, and its reasoning leads to a finding that the dog park is a covered

premise. Unlike the land in Benjamin, the dog park is not located in a suburban

area. To the contrary, the dog park is within a much larger park that includes

2500 acres. Only minimal residential areas surround the Mercer County Park.

      In Weber, we held that the LLA applied to a thirty-five-acre park. The

park was large and open to the public for recreational activities. In this case,

the Mercer County Park is a public park, roughly 2500 acres in size, containing

the dog park within it. The park also contains seven softball fields, two baseball

fields, twelve basketball courts, twenty-seven tennis courts, eleven soccer fields,


                                                                            A-5300-18T1
                                        14
a boathouse, a lake, an ice rink and numerous hiking and jogging trails. The

park also includes Mercer Lake, the Van Nest Wildlife Refuge, Mercer County

Community College, some residences, and a golf course.

       While the park has some residential housing adjacent to it, the park is not

situated in a residential development, as in Toogood, and is similarly unlike the

pond in Harrison, where the Court found the pond was situated in a highly

populated suburban community.          Plaintiff's reliance on Harrison is also

misplaced because Harrison predates the 1991 amendments that mandated a

liberal construction of the statute.

       The 1991 amendment to the Act makes clear that it applies to improved

land. N.J.S.A. 2A:42A-3(a). This result is consistent with Weber as well as

other decisions applying the LLA. See e.g., Nazzaro v. United States, 304

F.Supp.2d at 605, 607 (D.N.J. 2004) (applying LLA to an obstacle course in a

wooded area located in Fort Dix). Therefore, the park itself has very similar

characteristics to Weber, and thus we hold is the type of land covered under the

LLA.

       Plaintiff also argues that defendants willfully failed to guard against the

dangerous condition. Plaintiff relies on Krevics v. Ayars, 141 N.J. Super. 511

(Law Div. 1976). As previously noted, the LLA does not shield landowners


                                                                          A-5300-18T1
                                       15
from liability for their willful or malicious acts, or when the landowner received

consideration from the injured party for the right to use the land.


            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; 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 . . . .

            [N.J.S.A. 2A:42A-4.]

      The LLA does not define "malicious" or "willful." In Krevics, while not

attempting to define the terms, the court denied the defendant's motion for

summary judgment in the face of evidence that the defendant "caused or

consented to the placement of a cable across the motorbike trail" that had been

used for several years on his eleven acre, undeveloped woodland tract in Salem

County. Id. at 514. There were no warning signs, and at dusk, the cable was

difficult to see. Ibid. The plaintiff came in contact with the cable and suffered

serious injuries.   Ibid.   The court found that the LLA did not protect the

defendant because "[t]he hazardous condition was created by [the] defendant.

The erection of the cable was certainly a willful act. In view of [the] defendant's

                                                                           A-5300-18T1
                                       16
knowledge of the use of the motorbike trail, and considering the type of hazard

erected, [the] defendant's action may even be construed as malicious." Id. at

516.

        Applying the definitions suggested by the court in Krevics, we see no

basis in the record to find that defendants acted maliciously or willfully in failing

to warn about the hole, or to guard against the danger that it posed. At most,

plaintiff presents circumstantial evidence that defendants, in the course of

attempting to close the park for ongoing maintenance, was on notice that the

hole existed. Yet, that falls far short of the necessary showing of will fulness or

malice.

        In a large park, there are numerous dangerous conditions, natural and

manmade, known and unknown, that the park employees realistically cannot

immediately address because of competing demands on State resources.

Therefore, unlike Krevics, where a cable was deliberately placed across a

motorbike path, here, a hole in a dog park that went undetected and unfilled does

not constitute willful or malicious activity.

       Because we find defendants have immunity from liability under the LLA,

defendants are also immune from claims under the TCA. See N.J.S.A. 59:2-1(b)

(a public entity's liability is subject to any immunity the entity may have);


                                                                             A-5300-18T1
                                        17
Rochinsky v. State of N.J. Dep't of Transp., 110 N.J. 399, 409 (1988) (holding

that under N.J.S.A. 59:2-1(b), common law and statutory immunities not

contained in the TCA prevail over the TCA's liability provisions).

      Any arguments not specifically addressed lack sufficient merit to warrant

discussion in a written opinion. Rule 2:11-3(e)(1)(E).

      Affirmed.




                                                                       A-5300-18T1
                                     18
