On Appeal from the United States District Court for the District of New Jersey -- Camden D.C. Civil No. 84-2219.
Before: SEITZ, GIBBONS, and HUNTER, Circuit Judges
1. This diversity action requires us to construe N.J. Stat. Ann. § 2A:42A-2 et seq. (West Supp. 1986), the Landowners' Liability Act ("LLA"), which limits the tort liability of landowners under certain conditions. Plaintiff-appellant Elaine Hallacker brought a wrongful death action against defendant-appellee National Bank & Trust Co. of Gloucester County ("Bank") after her husband, Albert Hallacker, dies as a result of injuries sustained on the defendant's property. The Bank filed a motion for summary judgment on Hallacker's complaint, arguing that the Bank was immune from liability under the LLA. The Bank's motion was granted by the district court, and this appeal followed.
2. On June 30, 1982, decedent Albert Hallacker, appellant Elaine Hallacker, and their infant son visited a vacation cottage at Wilson Lake Memorial Park ("Park"), located in Clayton, New Jersey. The Hallackers were invited to the Park by their friends Edward Hickey and Diane Winning, who had received permission to use the cottage from the Rudds, who in turn leased the cottage from the Bank. The Hallackers arrived at the cottage at about 11:00 a.m. After approximately two and one half hours of unpacking, picnicking, and card-playing, Albert Hallacker decided to take a swim in the lake. He walked to the end of a short boat dock and dove head-first into the water, striking his head on the bottom of the lake and shattering a cervical vertebra. The water was only two and one half feet deep. Two weeks later, Albert Hallacker died as a result of this injury.
3. Appellee Bank was appointed trustee of Wilson Lake Memorial Park by the last will and testament of the Park's former owner, George H. Wilson. The Park consists of approximately 840 acres. within an area of 140 acres, the Park contains 76 rental cottages, 107 campsites, 9 docks, and a recreational lake. The Park has only one paved road. The cottages and campsites are primarily rented out on a seasonal basis, although a handful of retired persons live at the park year-round. Under the terms of the lease agreement, no subletting or loaning of the rental property by the lessee is permitted. Under the rules and regulations of the Park, which are incorporated by reference into the lease agreement, swimming is only permitted in a specified area of the lake. The spot at which Albert Hallacker suffered his fatal injury was not within this specified area. There were not signs warning "No Swimming" or "No Diving" at the place where Hallacker's accident occurred.
4. The Landowner's Liability Act, N.J. Stat. Ann. § 2A:42A-2 et seq., provides in pertinent part as follows:
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 and any other outdoor sport, game and recreational activity including practice and instruction in any thereof.
Except as provided in section 3 of this act:
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;
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.
This act shall not limit liability which would otherwise exist:
a. For willful or malicious failure to guard, or warn against, a dangerous condition, use ...