                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                      No. 11-1047
                                      __________

                                  JULIE AYMONIER,

                                                Appellant,
                                           v.

                          UNITED STATES OF AMERICA.
                                  __________

                    On Appeal from the United States District Court
                            for the District of New Jersey
                              (D.C. No. 3-09-cv-04757)
                        District Judge: Hon. Freda L. Wolfson

                                      __________

                      Submitted under Third Circuit LAR 34.1(a)
                                   June 20, 2011

   Before: HARDIMAN and ALDISERT Circuit Judges ,and RESTANI,* Int’l Trade
                                Judge.

                                 (Filed: June 22, 2011)
                                      __________

                              OPINION OF THE COURT
                                    __________

ALDISERT, Circuit Judge.

* Honorable Jane A. Restani, Judge of the United States Court of International Trade,
sitting by designation.
                                           1
       This appeal by Julie Aymonier from summary judgment entered by the United
States District Court for the District of New Jersey in favor of the United States requires

us to decide whether the United States was liable under the Federal Tort Claims Act, 28

U.S.C. § 1346(b) et seq., and id. § 2671 et seq., or whether the District Court properly

held that her claim was barred by the New Jersey Landowner Liability Act, which

provides tort immunity to owners of rural and semi-rural properties. N.J. Stat. Ann.

§ A:42A-3. We are satisfied that the New Jersey Act applies, and will affirm.

                                             I.

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1346. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

       “We review a district court’s grant of summary judgment under a plenary

standard, applying the same test employed by the District Court.” Smith v. Borough of

Dunmore, 633 F.3d 176, 179 (3d Cir. 2011) (quotation omitted). Summary judgment is

appropriate where “the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Rule 56(a), Federal Rules

of Civil Procedure. In making this determination, we draw inferences “from the
underlying facts in the light most favorable to the nonmoving party.” Bayer v. Monroe

Cnty. Children & Youth Servs., 577 F.3d 186, 191 (3d Cir. 2009) (quotation omitted).

                                             II.

       Aymonier’s lawsuit alleged that she sustained injuries as a result of a slip and fall

at “Sandy Hook,” which is part of the federally-owned Gateway National Recreation

Area. Specifically, she averred that while walking on a paved path called Fisherman’s
Trail she tripped over an object that appeared to be a metal post protruding one inch

above the surface of the walkway. She sustained a fractured wrist that healed with a
                                              2
visible deformity.

       Sandy Hook consists of approximately 2,070 acres of land with several miles of

beaches and approximately eight miles of recreational trails. The vast majority of Sandy

Hook is uninhabited, comprising mainly beaches, salt marshes, dunes, a maritime forest,
and a habitat for migratory birds. The only structures on Sandy Hook are related to Fort

Hancock, a decommissioned military base, and Station Sandy Hook, an active United

States Coast Guard Base that is fenced off from the public.

       The District Court granted the government’s motion for Summary Judgment. It

found that the dominant character of the land at Sandy Hook was rural, quiet, and remote,

which meant the Landowner Liability Act barred Aymonier’s suit as a matter of state

law. She timely appealed.

                                            III.

       The Federal Tort Claims Act (“FTCA”) allows plaintiffs to bring claims based on
the actions of government employees, if private persons engaging in analogous behavior

would be liable under state law. 28 U.S.C. § 1346(b)(1). Importantly, state law

determines whether there is an underlying cause of action. Miller v. Pa. Geriatric Ctr.,

463 F.3d 266, 271 (3d Cir. 2006). In this case, Aymonier sued the federal government

pursuant to the FTCA, based on a theory of negligence under New Jersey law. “[T]o

sustain a common law cause of action in negligence,” under New Jersey law, “a plaintiff
must prove four core elements: (1) a duty of care, (2) a breach of that duty, (3) proximate

cause, and (4) actual damages.” Polzo v. Cnty. of Essex, 960 A.2d 375, 384 (N.J. 2008)

(internal quotation omitted). Although New Jersey law imposes upon landowners “the
duty of maintaining sidewalks in safe condition,” Stewart v. 104 Wallace Street, Inc., 432

A.2d 881, 884 (N.J. 1981), the state legislature has abrogated that duty in the case of

                                             3
landowners who allow the public to use their property for recreation:

       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 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;

       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.
N.J. Stat. Ann. § A:42A-3. Section A:42A-3 was intended to provide tort immunity to

“those owners of rural or semi-rural tracts of land on whose property the enumerated

activities occurred.” Harrison v. Middlesex Water Co., 403 A.2d 910, 913 (N.J. 1979).

The issue on this appeal is whether Sandy Hook is a “rural or semi-rural” tract of land. Id.

       Aymonier contends that the District Court erred in finding that Fisherman’s Trail,
the site of her injury, was “rural or semi-rural.” Id. She maintains that it lacks the

characteristics typically associated with rural or semi-rural areas because of its close

proximity to Fort Hancock and Sandy Hook Station. Alternatively, she contends that
because Sandy Hook is part of the Gateway National Recreation Area—which extends

throughout portions of New York and New Jersey—it should be viewed in the context of

“the largest metropolitan area in the country.” We are not persuaded by her arguments;
the vast majority of Sandy Hook consists of undeveloped beaches and marshland. Indeed,

Aymonier herself described the area where she fell as “wilderness.” App. 129-30. Nor do

                                               4
the proximity of Fort Hancock and Station Sandy Hook deprive Fisherman’s Trail of its

semi-rural character. Cf. Weber v. United States, 991 F. Supp. 694 (D.N.J. 1998)

(applying New Jersey law and concluding that a publicly accessible swing set located on

the Fort Dix Military Reservation qualified for immunity under the Landowner Liability
Act). We therefore agree with the District Court that Sandy Hook is semi-rural land, and

that the United States is entitled to immunity under the Landowner Liability Act.

                                        *****
      We will affirm the judgment of the District Court.
                                     __________




                                            5
