In what can often feel like an era of expanded municipal liability and the slight erosion of immunities such as those found in Title 59 of the New Jersey Tort Claims Act, the New Jersey Supreme Court recently provided municipalities with a significant victory in the ongoing effort to manage public liability in its recent decision in Arias v. County of Bergen.
The Facts
In this case, Plaintiff was rollerblading on a pedestrian paved pathway at Van Saun Park, a 130-acre park owned and operated by Bergen County. The Supreme Court Opinion noted that Van Saun Park was located within Paramus, New Jersey and featured playgrounds, pavilions, picnic facilities, a dog park, a zoo, athletic fields, tennis courts, pathways, fishing ponds, and wooded areas all available to the public free of charge. On April 24, 2021, the Plaintiff was rollerblading when she allegedly “fell into a pothole on a paved pedestrian path” causing various injuries. Plaintiff filed a lawsuit against Bergen County alleging negligence for failing to maintain the path or warn visitors of the pothole. Bergen County’s attorneys responded by filing a Motion to Dismiss for failure to state a claim, citing to immunity under the Landowner Liability Act, N.J.S.A. 2A:42A-2 to 10. This Motion to Dismiss was granted by the trial court, whose decision was later upheld by the Appellate Division, and the case was eventually heard by the New Jersey Supreme Court.
The Ruling
On January 22, 2026, the Supreme Court of New Jersey affirmed the lower court decisions, finding that Plaintiff’s claim was indeed barred by the Landowner Liability Act.
What is interesting about the Landowner Liability Act is that unlike Title 59 Immunities, which apply only to municipal entities, it applies to all property owners. N.J.S.A. 2A:42A-3 of the Act provides: “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.”
As noted in Justice Hoffman’s Opinion for the Court, the Landowner Liability Act originated as an effort to shield rural landowners from liability for hunting and fishing on their property, and over time has grown with the intention of inducing property owners to open their properties for sport and recreational activities “without fear of liability.” The Opinion further noted that although the injury occurred on a paved pathway, thus constituting improved property maintained by the County of Bergen, rollerblading itself is properly considered a recreational activity.
The Appellate Court rejected prior multi-factor tests and adopted its decision based on the “dominant character of the land” test as articulated in Toogood v. Saint Andrews at Valley Brook Condominium Association, 313 N.J. Super. 418, 425-26 (App. Div. 1998). This reliance was then upheld by the Supreme Court of New Jersey in its decision.
Plaintiff argued that the Landowner Liability Act was intended for large, rural lands, not a suburban park located in a densely populated area replete with improvements and pathways within the park confines. The Supreme Court of New Jersey disagreed, ultimately finding that recreational activity was the dominant character of Van Saun Park.
As noted by the Legislature when enacting amendments to this act in 1991, “[The Landowner Liability Act] 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.” See also N.J.S.A. 2A:42A-5.1. The 1991 amendments further expanded immunity coverage to include “improved” or “commercial” premises.
Takeaway for Municipalities
The Arias v. County of Bergen decision provides a precedent that should both reassure and protect municipalities for years to come, particularly those operating parks and other open spaces where slip and fall and other similar negligence claims are frequently alleged.
Although the “dominant character” test provided by the Court requires some factfinding by a court, here even alleged injuries that occurred on an improved pathway with an alleged pothole were not sufficient to defeat the County’s Motion to Dismiss.
That is not to say that a homeowner is likely to be successful in stating their property is immune under the Landowner Liability Act when there is an injury in their backyard pool, nor a condominium association under similar facts, but it is to say that the raft of gopher hole injuries, declinations in soil, and unevenly maintained pathways within a park setting owned by a municipality should now be protected by this decision. This is especially so when the person injured is engaging in a recreational activity, though that does not seem to strictly be a requirement of the Supreme Court’s holding in Arias v. County of Bergen.
As noted in dicta of the Supreme Court’s decision: “We are concerned that holding Van Saun Park is not a ‘premises’ under the LLA would expose the County to liability and might discourage counties and municipalities from opening existing or new properties to the public for free…There is inherent difficulty in monitoring open and expansive land to prevent trespassers or guarantee the safety of the entire property. That is no less true for a 130-acre park. If the park was not covered by the LLA, the costs of potential liability would likely be passed on to the taxpayer, directly through increased taxes or indirectly through decreased or eliminated services.”
Arias v. County of Bergen is a commonsense decision that reaffirms the importance of the Landowner Liability Act and provides coverage and confidence to any municipality currently operating or considering operating or expanding its parks or open space programs. To that end, municipalities may wish to revisit their master plans and signage to clearly designate such areas as recreational to bolster the dominant character argument before a claim is even filed.