In a published decision Thursday, the New Jersey Appellate Division affirmed the dismissal of a personal injury suit stemming from an incident at a county park, concluding that the location qualified as a "premises" under the Landowners Liability Act, entitling Bergen County to immunity.

The plaintiff, Andris Arias, appealed the trial court's dismissal of her complaint against Bergen County after she fell in a hole while rollerblading on a paved pedestrian pathway in Van Saun County Park. In her suit, Arias v. Bergen County, she alleged negligence and sought damages for injuries she suffered in the fall, according to the opinion.

The county filed a motion to dismiss for failure to state a claim under Rule 4:6-2(e) and asserted immunity under the Landowners Liability Act. The defense argued by Assistant Bergen County Counsel David Mateen said that Arias' claim was barred because the county was presumptively entitled to immunity. Furthermore, no facts alleged in her complaint showed that her injury was caused by willful or malicious conduct.

Arias' counsel with Brach Eichler argued that the act was intended to apply to rural and semirural tracts of land, not residential and suburban neighborhoods. Arias alleged that since the park contained "buildings, structures, and amenities" within a "densely populated suburban neighborhood … surrounded by residential housing," the county was not entitled to immunity.

Appellate Division Judge Jessica R. Mayer wrote that Arias relied heavily on a 1979 New Jersey Supreme Court opinion in Harrison v. Middlesex Water in her argument against immunity.

"Plaintiff contends that if a large, park-like, open space tract of land existed before a development boom in a particular municipality, such property would be entitled to immunity under the LLA," Mayer said. "However, if the municipality subsequently approved construction of housing or other development adjacent to that existing park-like premises, plaintiff argues the original open space tract of land would lose its immunity."

Mayer said that if the court were to adopt that argument, immunity under the act would be limited to the few remaining premises in New Jersey without any nearby housing or other development. The judge noted that such an interpretation would be in conflict with the legislative intent of promoting sports or recreational activities on "lands having similar characteristics" to rural and semirural property.

The Harrison court declined to immunize all landowners from liability for injuries incurred during outdoor recreational activity on their property when the lands are improved and used by the public in populated neighborhoods in urban or suburban areas, Mayer said. Instead, a reviewing court must consider "the use for which the land is zoned, the nature of the community in which it is located, its relative isolation from densely populated neighborhoods, and its general accessibility to the public at large," the opinion said.

Mayer cited a second case from the Appellate Division, Toogood v. St. Andrews at Valley Brook Condominium Association, which required an analysis of the prevailing character of the land where the plaintiff suffered the injury and held that the 1991 LLA amendment was "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."

"Given the diminishing open tracts of land in New Jersey, we are persuaded that the four-factor test in Harrison, a case decided twelve years prior to the 1991 LLA amendment, is incongruous with the 'dominant character' of the land analysis under Toogood in determining whether a specific 'premises' is entitled to immunity under the LLA," Mayer said.

In applying the dominant character of the land analysis in this case, Mayer held that it is undisputed that Van Saun County Park offers access to the general public to picnic areas, playgrounds, pavilions, athletic fields, wooded areas, bicycling and walking paths, and a dog park without charging a fee. The dominant character of the park is the open space for sport and recreation, which renders it the type of property entitled to protection under the act, the appellate court concluded.

"On these facts, the park is a 'premises' under N.J.S.A. 2A:42A-3(a), and the judge properly determined the county was entitled to LLA immunity," Mayer said.

Arias' counsel, Alex S. Capozzi, a member of Brach Eichler, said in a statement emailed to the Law Journal, "While we have the utmost respect for the Appellate Division, we respectfully disagree with their decision in this case."

Capozzi said the act was designed to immunize certain landowners from liability to promote recreational activities on those lands, such as hunting and fishing. However, he said that as a result of an amendment adding ambiguous language into the statute over the last several years, there has been inconsistent application of the act, and courts have continued to expand it into urban and suburban areas of the state that the legislature never intended to be covered.

"As a direct consequence, New Jersey, in a very real way, is, and will continue to be, less safe for citizens moving forward," Capozzi said.

Mateen did not immediately return a request for comment.