ok - i'll take the bait on this one.
Ugh, me too. =)
Our tort laws are not so different compared to the rest of the US. We have a larger volume of cases filed than the national average and our statute of limitations is a bit longer than many states. Where we really differ though, is we have a huge population density, particularly in the NY Metro Area. We rank #1 nationwide in many population density related stats, including percentage of "urban land" at over 39% of our total landmass. Less open space, more people, more injuries, more judges, more attorneys, more cases.
Remember that negligence is an unintentional tort, but can hold a person liable for their actions. In many cases that is a good thing. It must be proven that a duty of care was owed to the plaintiff, there was a breach of that duty, there was an injury to the plaintiff caused by the defendant, and that the defendant’s act was the proximate cause of the injury. Anyone building features on land that is not theirs without permission should read this a few times. On a side note, read the opinion on Palsgraf vs. the LIRR. Determining proximate cause, and where it ends, is really interesting.
Look into NJ tort claims won despite a participant's assumed risk in sport/recreational activities. I have not found precedent. Successful claims involve true negligence on the part of the landowner. Our landowner liability act is actually pretty solid. Some info on the act is pasted at the end of this post.
The pump track case was not won by the plaintiff, it was settled by the insurance company. Super common in personal injury cases. I will gladly share my personal feelings on this case in person. There is much more to it, and many lessons were learned regarding exposure to risk and relations with land managers.
So what does all of this mean and where am I going with it?
From a NJ land managers perspective, it is much easier to be a little more risk adverse when it comes to things like technical trail features on public trails in a state such as ours. It takes more
work to develop and maintain those features by all involved, from the advocate to the land manager. Bentonville did not happen over night. WVP did not always allow TTF's. Both happened because
people did the necessary
work to see the project through. Building is the easy part, both in Bentonville and in NJ.
Bentonville has very similar recreational use liability protections for landowners as NJ does. Some differences are that they have less people, more space, they advocated heavily for their trails, put in the hard work to make it happen, and have a wonderful situation with the Walton Foundation helping to fund the overall effort. In NJ we are seeing less trail maintenance hours, less volunteerism in general, and in some spots more features popping up without landowner permission. We have worked for decades on advocacy efforts which put us on equal footing with other stakeholders, but often deal with the same old issues in this area. Step forward, step back, repeat. Our own worst enemy?
New Jersey Landowner Liability Act, N.J.S.A. 2A:42A-2
The purpose of the Act is to induce landowners (where used in this article, the term landowner also includes lessees and occupants) to make their properties available for sport or recreational activities by limiting the tort liability these owners might otherwise face under the common law. “Sport and recreational activities” is defined to include hunting, fishing, horseback riding, hiking, camping, and other outdoor recreational activities.
The Act provides that a landowner owes no special duty to keep his or her property safe for entry or use by others for sport and recreational activities, or to warn persons entering for such purposes of hazardous conditions of the land. The Act also provides that a landowner who gives permission to another to enter upon his or her property for a sport or recreational activity does not thereby (1) extend any assurance that the property is safe for such purpose; (2) change the person’s status to that of an “invitee” (to whom a higher duty of care is owed); or (3) assume responsibility or incur liability for that person’s acts that cause injury to another or damage to property. These limitations on liability apply to public and private entities alike.
The Act’s limitations on liability also apply, in varying degrees, to the following: (1) farmers who grant permission to bike, horseback ride, or operate a snowmobile or allterrain vehicle on their properties; (2) the owners of premises upon which public access has been required as a condition of a regulatory approval of, or by agreement with, the Department of Environmental Protection; and (3) the owners of premises on which a conservation restriction is held by the State, a local unit (e.g. a municipality), a charitable conservancy, or premises upon which public access is allowed pursuant to a public pathway or trail easement held by one of these entities.
The Act does not, however, limit liability in the following circumstances: (1) willful or malicious failure to guard or warn against a dangerous condition or activity; (2) injury suffered where permission to engage in recreational activities was granted for a consideration (i.e., in exchange for something of value, such as money), other than a consideration paid to the landowner by the State; or (3) injury caused by someone engaged in recreational activity to someone who is on the property for the landowner’s personal affairs.