The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0183-24
DAVID TIMPANARO,
individually and as Executor
APPROVED FOR PUBLICATION
and Administrator Ad
Prosequendum of the ESTATE November 21, 2025
of ANTHONY J. TIMPANARO, APPELLATE DIVISION
LIA TIMPANARO, individually
and as guardian of minor, C.T.,
Plaintiffs-Appellants,
v.
JENKINSON'S PAVILION,
INC., a corporation of the State
of New Jersey, and JENKINSON'S
SOUTH, INC., a corporation
of the State of New Jersey,
Defendants-Respondents.
_____________________________
Argued October 20, 2025 – Decided November 21, 2025
Before Judges Sabatino, Walcott-Henderson and
Bergman (Judge Sabatino concurring).
On appeal from the Superior Court of New Jersey,
Law Division, Morris County, Docket No. L-1110-21.
Timothy J. Foley argued the cause for appellants
(Sarno Da Costa D'Aniello Maceri, LLC, and Foley &
Foley, attorneys; Cynthia A. Walters and Paul da
Costa, on the briefs).
Michael C. Corcoran argued the cause for respondents
(Murphy Sanchez, PLLC, attorneys; Dennis M.
Marconi and Michael C. Corcoran, on the brief).
The opinion of the court was delivered by
WALCOTT-HENDERSON, J.A.D.
In this tragic drowning case, plaintiffs David and Lia Timpanaro 1 appeal
from an order granting summary judgment in favor of defendants Jenkinson's
Pavilion and Jenkinson's South, 2 resulting in the dismissal of their wrongful
death and premises liability complaint under the immunities afforded by the
Landowner's Liability Act ("LLA"), N.J.S.A 2A:42A-2 to -10, and on other
grounds.3 Plaintiffs argue the court erroneously held defendants' commercial
boardwalk business and abutting beach operations bear no responsibility for
monitoring, warning, or protecting business invitees from life-threatening
ocean conditions present for more than three days before decedent's death.
Plaintiffs also appeal from an order denying their subsequent motion for
1
Because plaintiffs share a surname, we refer to them individually by their
first names, intending no disrespect.
2
We refer to "Jenkinson's Boardwalk," "Jenkinson's Pavilion," "JSouth," and
"JPav" collectively as "defendants" consistent with their briefs.
3
Defendants' property is divided into two areas: JSouth and JPav, which
share branding as "Jenkinson's Boardwalk" although they are separate and
distinct entities, they are owned by the same family.
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reconsideration. For the reasons that follow, we affirm, although we do not
rest on LLA immunity to sustain the result.
I.
The essential facts are undisputed. On September 23, 2020, plaintiffs,
accompanied by their minor child, C.T., and then sixty-nine-year-old father
and grandfather, Anthony Timpanaro ("decedent"), traveled to defendants'
beachfront property to spend the day. By all accounts, it was a beautiful
September day after the hustle and bustle of the summer season.
On arrival, the family met at Jenkinson's South's ("JSouth") parking lot
behind the arcade area because "that particular corner and location had
everything, pizza, the arcade and had sand." Linda Pulitano, a beach attendant,
collected a parking fee and explained the beach was closed for swimming but
that one gate remained open and advised the family to "[f]eel free to go on the
beach and walk and play." Because it was the end of the summer season, there
were no lifeguards on duty.
The family made their way onto the beach where they settled into beach
chairs and decedent and his grandson began searching for seashells and
chasing seagulls. Plaintiffs admit they observed three large signs on the
property: one advertising the boardwalk, beach, arcade games and rides;
another which conveyed that the "beach was closed[,] [n]o swimming"; and
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another stating "no swimming when lifeguards are off-duty."
At some point, decedent joined Lia and C.T. at the water's edge. He was
not wearing shoes and had the legs of his pants "rolled up a little." According
to Lia, a wave came in while they were standing on wet sand and "it was
stronger than [she] thought it would have been. And [her] feet [sank] in and
[she] teetered with the wave and stepped back. [Decedent] also teetered with
the wave and stepped back, and then lost his balance." Another wave engulfed
decedent, prompting David to venture into the water to pick him up and the
next thing she knew, decedent was out in the ocean yelling for help. Lia called
9-1-1 and went to the boardwalk area to help direct first responders to the area
where the decedent had been hit by the wave. When she returned with the
emergency personnel, decedent was back on the beach facedown. He died
after all efforts to revive him failed.
In May 2021, plaintiffs sued defendants in a three-count complaint,
alleging: (1) wrongful death; (2) survivorship, including allegations of
negligence, recklessness, gross negligence, and willful, malicious, and/or
wanton conduct by the defendants' entities and their employees, resulting in
severe and extreme physical and emotional pain, suffering, and anguish
endured by decedent before and during his death and as he attempted to escape
the ocean water; and (3) negligent infliction of emotional distress.
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The Beach Area and Associated Permit
Relevant to this case, Point Pleasant Beach is separated from the
boardwalk by a wooden sea wall, with access limited to sliding steel gates and
ramps controlled by gate attendants during the season. The boardwalk area has
numerous food vendors, rides, and "other amusements," which are open year-
round. Jenkinson's off-season businesses include "an amusement park, indoor
and outdoor arcades, stores, restaurants, food service establishments, bar,
nightclub, indoor aquarium, and miniature golf complex."
Defendants applied for and were granted a Coastal Area Facility Review
Act ("CAFRA") IP permit in October 2018 under the Rules on Coastal Zone
Management ("CZM"), N.J.S.A. 7:7-1.1.4 The permit further impose several
"special conditions," including that defendants "cannot limit vertical or
horizontal public access to its dry sand beach area nor interfere with the
public's right to free use of the dry sand for intermittent recreational purposes
connected with the ocean and wet sand."
Following plaintiffs' complaint, a period of discovery ensued, including
deposition testimony from the New Jersey Department of Environmental
Protection ("DEP"), defendants' employees and plaintiffs' and defendants'
4
The permit authorized "the construction of a shore protection project
consisting of a seawall, rock revetment, boardwalk modifications, three vehicle
access ramps, eight pedestrian accessways and beach berm maintenance."
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experts. Vivian Fanelli, DEP's representative and environmental specialist,
agreed DEP permits do not allow defendants to limit vertical or horizontal
public access to the dry sand beaches and defendants must maintain public
access. DEP's Region Supervisor, Robert Clark, also testified that defendants,
like all permitees, must comply with all conditions of a permit, there are no
time limitations, and the permit conditions are in effect year-round.
The key site manager and part-owner of JSouth and JPav, P.J. Storino,
testified at deposition that he recounted watching weather reports daily to track
incoming storms and confirmed that he would review National Oceanic and
Atmospheric Administration ("NOAA") warnings and advisories
"periodically." He denied being aware of any storm event towards the end of
2020 that would include the time-frame during which decedent drowned.
The Settlement Agreement and Manual
In addition to the DEP permits as discussed above, defendants were also
required to comply with the terms of a 2017 settlement agreement with the
DEP, which required preparation of an Operation and Maintenance manual
("Manual") for the sea wall and beach berm. Under the settlement agreement,
defendants were required to inspect the bulkhead, "secure all openings in the
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bulkhead at beach access locations prior to a significant [s]torm [e]vent," 5 and
"deploy all flood gates at the openings in the seawall prior to a [s]ignificant
[s]torm [e]vent in accordance with the [s]ignificant [s]torm [e]vent [a]ction
[p]lan."
Pursuant to the Manual, "a significant storm event" is designated if
Jenkinson's Boardwalk (1) is within a tropical storm or hurricane watch or
warning area, as determined by the National Hurricane Center; (2) within a
National Weather Service ("NWS") coastal flood warning area, provided a
surge of at least three feet is predicted to occur at the Watson Creek Station of
the Stevens Flood Advisory System; or (3) within an area of a state of
emergency for storm or flooding as issued by the Governor's Office.
Additionally, prior to any significant storm event, defendants' operator
"shall consult" with the DEP Division of Coastal Engineering to coordinate the
timing of floor gate closure. If contact with DEP cannot be made, the operator
"shall close all flood gates within [three] hours of the declaration of any of the
above-referenced criteria." Also, during a potential significant storm event,
the key site manager must: (1) identify the significant storm event declaration;
(2) notify the DEP, Borough, and the Jenkinson's engineer; (3) consult with the
5
The agreement further specified "[t]he criteria for determining the existence
of a [s]ignificant [s]torm [e]vent, and the appropriate response shall be defined
in the [Manual], with reference to forecasts of the [NWS] and [NOAA]."
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DEP "to coordinate the timing of flood gate closure, if required;" (4) "[c]lear
the beach of all people and closing the access of the beach to the public; " (5)
"[l]ock the gates to prevent opening during the storm;" (6) "periodically check
the gates, people on the beach and seawall during the storm event" provided
safety allows; (7) open the gates after expiration of the event; and (8) direct
the Jenkinson's engineer to conduct a post-storm inspection of the seawall if
storm surge and/or waves reached the seawall during the significant storm
event.6
Point Pleasant Ordinance 2020-12
During discovery, the parties stipulated that the Borough of Point
Pleasant Ordinance 2020-12 ("Ordinance") was in effect at the time of the
drowning. The Ordinance expressly provides that during the summer season
all beaches "shall" close at 7:00 p.m. See Point Pleasant, N.J., Ordinance
2020-21 (Aug. 4, 2020). It is undisputed the Ordinance includes exceptions
for members of the public who wish to surf, fish, or scuba dive while the beach
is closed and members of the public who wish to exercise on the wet sand or in
6
The Manual further provided that in the event of a significant storm event,
the flood barriers must be deployed and a post-storm seawall inspection
conducted. Once the flood barriers are closed, the gates must remain closed
"until the significant storm event has ended, which will be at least [twelve]
hours after the closing of the gates, or earlier upon consultation with [DEP]."
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the ocean.
Defendants' employee Dean Albanese, lifeguard chief at Jenkinson's,
was also deposed. He testified that there is a difference between in-season and
off-season protocols and that sometime after Labor Day every year, the beach
closes for the season and all lifeguard equipment is brought inside and no more
lifeguards remain on duty. According to Albanese, lifeguard equipment is
present during the in-season, with permanent water condition signs posted and
colored flags communicated to beachgoers. During the off-season, on the
other hand, lifeguard staff is furloughed, and the only generally left up signs
are
BEACHES CLOSED
NO SWIMMING
at entry points and red flags on some flagpoles. He noted that at that time
"beach closed" and "no swimming" signs are put up. He confirmed that on
September 23, the lifeguards were no longer on duty but were instead working
to close the beach for the season and noted that there were numerous "beach
close" and "no swimming signs" in addition to a red flag on the flagpole. He
admitted there were no signs explaining the meaning of the red flagpole
because the signs had been removed since it was the end of the season.
John Chernosky, a lifeguard captain, was also deposed and testified he
had worked for defendants as a lifeguard since 2004. Chernosky described his
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duties as: "diagnos[ing] the water for flag conditions" and conveying the tides
and temperature information to his colleagues. On the day of the accident,
Chernosky was working the beach cleanup crew when a coworker received a
call from Albanese "stat[ing] something to the effect that there was a possible
downing by Arnold Ave[nue]." Chernosky and others ran down the boardwalk
where they met the police on the scene. He confirmed no lifeguards were on
duty on the day of the accident, as they "were doing maintenance."
Expert Reports and Deposition Testimony
Defendants' expert, James Cresbaugh, prepared a report in which he
opined defendants "did not breach any standard of care in the manner that
beach operations were handled on September 23, 2020," nor did they "breach
any duty and/or standard of care owed to the plaintiffs." He stated:
When the bathing season has concluded and there are
no employees, there is no responsibility for providing
beachgoers water safety should they decide to enter
the water. [Defendants] allow[] beach access after the
season for those who wish to make use of the beach
and thus allows for beachgoers to walk across the
beach to reach the Atlantic Ocean, which is always
accessible to anyone wishing to use the ocean for their
pleasure, as per the Public Trust Doctrine.
Cresbaugh emphasized "there was no one employed as lifeguards or
supervisors once bathing season ended," consistent with the industry standard
for all New Jersey beaches and no lifeguard stands or lifeguard equipment
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could be seen on the beach. He noted defendants posted large signs indicating
the beach was closed and swimming should not be considered because no
lifeguards were on duty and a red flag was flying from a nearby flagpole.
According to Cresbaugh, "beach patrols do not monitor or respond to
any storm-related warnings or hurricane alerts after the beaches have closed
for the season, as the summer staff have moved on to their winter activities."
He also cited the Public Trust Doctrine and DEP permits afforded to
defendants and concluded defendants' permits "do not contain any language
limiting horizontal and vertical access to the ocean [and,] does not allow
[defendants] to deny access to the Atlantic Ocean once the beach closes for the
season." In his view, industry standards "clearly hold that there is a
responsibility of reasonable care to provide beach users with beach access."
By contrast, plaintiffs' expert, Bruckner Chase, a beach and coastal
hazards consultant to NOAA and its subsidiary NWS, with extensive
beach/facility/lifeguard experience, including preventive safety, provided two
reports and deposition testimony. In his initial report, Chase concluded that
"[b]oth high coastal waters and large surf were forecasted by the [hurricane
center] during the time frame of the incident." In his opinion, defendants
"were negligent, grossly negligent and reckless in not closing the seawall gate
as an added layer of protection from the known public health and safety
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conditions existing on the shore at the time of the incident," and in failing to
provide clear and consistent messaging on their beach open or closed status
based on he characterized as the unclear meaning of its "BEACHES CLOSED"
signs.
In his second expert report, Chase asserted defendants engaged in "a
reckless disregard to ensure patron safety when they knew or should have
known of dangerous and life-threatening conditions present because they failed
to adequately monitor national weather and coastal warnings."
Summary Judgment
Following discovery, defendants moved for summary judgment, arguing:
(1) they are immune from any liability stemming from decedent's death
pursuant to the LLA; (2) they owed no duty to monitor the ocean or warn of
dangerous ocean conditions during the off season beyond posting signs; and
(3) had a legal duty to keep their beach premises open per DEP permits, and so
plaintiffs could not demonstrate a breach of duty based on the decision to keep
the premises open.
Plaintiffs opposed summary judgment and cross-moved to bar
defendants from producing expert testimony opining on the duty of care
required for business invitees, arguing: (1) defendants are not protected from
liability under the LLA as the property is not the type of property
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contemplated by the Act; and (2) even if the LLA applies, defendants remain
liable for "willful or malicious failure to warn the public against the latent
dangerous condition that was the ocean at the time of [d]ecedent's drowning."
The Trial Court's Decision
The court granted summary judgment in favor of defendants and issued a
comprehensive twenty-one-page written statement of reasons. The court first
considered whether defendants are immune under the LLA and explained:
[d]ue to its unique form and untamable nature[,] the
[LLA] applies to the ocean. The [LLA] requires its
language to be applied literally. N.J.S.A. 2A:42A-5.1.
The ocean cannot be rendered safe for "sport or
recreation." Further[,] its nature prevents it from
being identified as improved land and certainly [it] is
in a "natural condition."
The court further concluded "[t]o hold a landowner responsible for the
death of someone who observed warning signs and opted to enter the ocean is
exactly the type of circumstances the [LLA] is intended to prevent," and "it
should be noted that one of the central ideas of the [LLA] is that a landowner
should not be held liable for the public's use of a property which cannot be
defended from trespassers or readily accessed by rescuers." The court next
found "it is uncontested that no lifeguards were present when [p]laintiffs
visited defendants' beach," they were not invited to enter the ocean, which was
"a severable part of [d]efendants' property due to the starkly different nature of
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the ocean versus the beach." The court explained that N.J.S.A. 2A:42A-8
makes clear that the LLA applies, in that it states that liability is limited if
public access has been required by the DEP.
Apart from the LLA immunity analysis, the court rejected plaintiffs'
argument they were business invitees to the ocean and defendants had a duty to
render the premises reasonably safe, concluding the ocean cannot be made
safe. The court concluded
as no conditions that would require [d]efendants to
restrict public access to the beach were in effect on the
date of [d]ecedent's drowning and [d]efendants had a
legal obligation to maintain public access to the beach
[,] plaintiffs' assertions that they could have closed the
beach entrance or otherwise barred public access . . .
to prevent access during dangerous conditions are
unsubstantiated.
The court further concluded defendants had a duty to warn invitees of
potentially dangerous conditions, but fulfilled that duty with their signage
warning the public not to swim when lifeguards are not present and that the
beach was closed. Plaintiffs therefore cannot prevail as a matter of law
because they cannot prove defendants breached a duty of care.
Plaintiffs moved for reconsideration under Rule 4:49-2, arguing the
court erred by overlooking and misinterpreting material issues of fact and in
determining the LLA applied to immunize defendants. In denying the motion
for reconsideration, the court clarified a key fact, stating "the [c]ourt does not
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see a material difference between a person standing on the beach at the water's
edge in the face of an approaching tide, . . . and then being swept away from a
wave as opposed to walking into the water and then being swept away from a
wave." The court concluded that although "certain ocean conditions were
acknowledged, no hurricane watch or warning was declared by [NOAA] . . .
[d]efendants' beach premises were never identified as being part of a [c]oastal
[f]lood [w]arning area nor had the Governor's Office issued a State of
Emergency for [s]torm or [f]looding." Thus, the court held that defendants had
no duty to deploy the floodgates and to close the beaches pursuant to their
2017 settlement with DEP.
This appeal followed.
II.
On appeal, plaintiffs argue the court erred by: (1) holding defendants did
not violate their duty to plaintiffs as a matter of law; (2) relying on factual
errors, including that decedent was in the water when he was struck by the
waves; and (3) applying the LLA immunity to defendants.
More particularly, plaintiffs maintain "[t]here can be little dispute [they]
were business invitees as they went to JSouth's beach/amusement venue for its
business purpose, paid to park. . . . Although they paid no specific beach entry
fee (due to the off-season), the beach was nonetheless part of the overall
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business operation and used as an economic draw . . . making them
economically interdependent." They argue, the court erred in determining
decedent exceeded the scope of his invitation by voluntarily entering the
ocean, a fact unsupported by evidence and established only by "judicial fiat"
when "the evidence was that [d]ecedent remained on the beach before he was
swept away by sudden dangerous hurricane related waves." Although
plaintiffs later acknowledged, in its decision on reconsideration, the court
clarified that it was cognizant of the fact decedent was not in the ocean at the
time of the incident, but determined "he was 'within the ocean's influence,'
which it viewed as equivalent to voluntarily entering the water."
Plaintiffs next argue the court erred in holding defendants were not
permitted to close the JSouth gates by overlooking the fact that the permit
language does not "eliminate obligations for public safety—even when public
access is required."
With respect to the court's application of immunity under the LLA,
plaintiffs' aver the consideration paid for the parking fee "should have ended
the discussion since consideration, albeit nominal, was paid" and even if the
parking fee alone did not qualify as consideration, "the fact that [p]laintiffs
planned to spend money at the boardwalk . . . should nonetheless establish the
consideration necessary to preclude an immunity claim under the LLA."
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Furthermore, they contend JSouth is not the type of premises to which the LLA
immunity applies because the beach and businesses do not constitute
"premises" within the meaning of the LLA. Relying on Harrison v. Middlesex
Water Company, 80 N.J. 391, 397-99 (1979), plaintiffs maintain the LLA
immunity has been held to apply to protect owners of large tracts or areas of
natural and undeveloped lands, and "JSouth's beach is developed and part of a
year-round entertainment complex." Lastly, plaintiffs maintain the LLA
immunity does not preclude claims for grossly negligent, willful or malicious
conduct, a point which was not addressed by the court.
III.
We review the disposition of a summary judgment motion de novo,
applying the same standard used by the motion judge. Townsend v. Pierre,
221 N.J. 36, 59 (2015). Like the motion judge, we view "the competent
evidential materials presented . . . in the light most favorable to the non -
moving party, [and determine whether they] are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the non-moving
party." Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)); see also R. 4:46-
2(c).
"To decide whether a genuine issue of material fact exists, the trial court
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must 'draw[] all legitimate inferences from the facts in favor of the non -
moving party.'" Friedman v. Martinez, 242 N.J. 450, 472 (2020) (alteration in
original) (quoting Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)).
"The court's function is not 'to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for trial.'" Rios v.
Meda Pharm., Inc., 247 N.J. 1, 13 (2021) (quoting Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 540 (1995)).
In addition, "[a] trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled to any special
deference." Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan,
140 N.J. 366, 378 (1995).
A.
(Alleged LLA Immunity)
"To sustain a cause of action for negligence, a plaintiff must establish
four elements: '(1) a duty of care, (2) a breach of that duty, (3) proximate
cause, and (4) actual damages.'" Townsend, 221 N.J. at 51 (internal quotation
marks omitted) (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008)).
The LLA, however, provides that certain owners, lessees, and occupants of
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property do not owe a duty to plaintiffs injured while using such property for
recreational activities and are therefore immune to suit. N.J.S.A. 2A:42A -3.7
Specifically, the LLA provides:
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.
[N.J.S.A. 2A:42A-3(a).]
This immunity is available to public entities as well as private ones.
Trimblett v. State, 156 N.J. Super. 291, 295 (App. Div. 1977). The LLA
further provides that it "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." N.J.S.A. 2A:42A-5.1. The
LLA's limitations on liability apply to several types of landowners, including
7
The LLA defines "sport and recreational activities" to include "hunting, fishing,
trapping, horseback riding, training of dogs, hiking, camping, picnicking,
swimming, skating, skiing, sledding, tobogganing, operating or riding
snowmobiles, all-terrain vehicles or dirt bikes, and any other outdoor sport, game
and recreational activity including practice and instruction in any thereof."
N.J.S.A. 2A:42A-2.
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commercial landowners who have agreements with the DEP requiring public
access on or across their properties, so long as they do not act in a willful or
malicious manner, or charge a fee to individuals to engage in recreational
activities. N.J.S.A. 2A:42A-8.
At its core, the LLA encourages landowners to make their properties
available for sport and recreational activities by limiting the tort liability that
landowners might otherwise be subject to under the common law. The LLA
provides that a "landowner" owes no special duty to keep its property safe for
entry or use by others for sport and recreational activities. It further provides
that landowners owe no duty to warn persons entering the property of any
hazardous conditions of the land. N.J.S.A. 2A:42A-3.
Here, plaintiffs argue exceptions to LLA immunity apply, asserting:
first, that defendants exercise complete control over access to the beach,
contrary to the policy for which LLA immunity was created; and second, the
subject property is suburban and not a rural or semi-rural premises as
contemplated by the LLA. In applying the LLA, the motion court framed the
issue as one predicated on defendants' ownership of the beach and "the idea
that a landowner should not be held liable for the public's use of a property
which cannot be defended from trespassers or readily accessed by rescuers."
Based on our de novo review, we part ways with the court's conclusion the
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LLA immunity applies to shield defendants from liability.
In reaching this determination, we consider the express language of the
LLA and case law interpreting its provisions. When interpreting the language
of a statute, a reviewing court "aims to effectuate the Legislature's intent."
Conforti v. Cnty. of Ocean, 255 N.J. 142, 163 (2023) (quoting W.S. v.
Hildreth, 252 N.J. 506, 518 (2023)). Because "[t]here is no more persuasive
evidence of legislative intent than the words by which the Legislature
undertook to express its purpose," the court "first look[s] to the plain language
of the statute." Ibid. (first alteration in original) (quoting Perez v. Zagami,
LLC, 218 N.J. 202, 209-10 (2014)). The court must "ascribe[] to the statutory
words their ordinary meaning and significance and read[] them in context with
related provisions so as to give sense to the legislation as a whole." Ibid.
(alterations in original) (quoting Hildreth, 252 N.J. at 518).
Our Supreme Court's ruling in Harrison v. Middlesex Water Co.,
addressed the applicability of the LLA in another tragic drowning case
involving a decedent who attempted to rescue two boys who had fallen through
the ice while skating. 80 N.J. at 394-96. The defendant in Harrison owned a
136-acre property, which contained a ninety-four-acre reservoir and forty-two
acres of surrounding land, "situated in an area zoned for residential use" that
had "become heavily populated," with the property itself "bounded by a
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regional high school, several athletic fields, a tennis court, two social clubs
and a number of private homes whose rear lots extend[ed] almost to the edge
of the lake." Id. at 394. "The greater part of [the] property [was] unfenced,
with the result that the lands ha[d] been openly accessible to and used freely
and frequently by the public." Ibid. The defendant claimed immunity under
the LLA; however, our Court was not persuaded.
Significantly, the Court declined in Harrison to grant the LLA "a broad
application," rejecting any interpretation that would "immuniz[e] . . . all
landholders from liability for injuries incurred during the course of outdoor
recreational activity on their property, particularly with respect to improved
lands freely used by the general public located in populated neighborhoods in
urban or suburban areas." Ibid. Instead, the Court held that when considering
a grant of immunity under the LLA, a 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." Ibid. The Court determined the
defendant's property, "an improved tract situated in a highly populated
suburban community . . . [and] surrounded by both private homes as well as
public recreational facilities," was "unlike lands located in rural or woodland
reaches where the activities of people thereon cannot be supervised or
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controlled and where the burden of guarding against intermittent trespassers
may far outweigh any risk to such persons and presence of such persons may
be difficult to foresee and contain." Id. at 401-02. The Court concluded the
defendant in Harrison was not entitled to immunity under the LLA. Id. at 402.
We are satisfied based on the express language of the LLA and the
predominant theme of our case law interpreting the LLA that the motion court
erred here in concluding defendants were immune from liability, as the LLA
does not apply to the ocean where the decedent drowned. Harrison makes
clear that our Court declined to grant the LLA such a "broad application."
In light of Harrison, we conclude the ocean which claimed the life of
decedent was not an area intended to be covered under the LLA. Defendants
are not owners or lessors of the ocean.
Moreover, even if we were to regard defendants as lessors of the beach,
we are not convinced the beach is the type of rural landscape whose owners
are typically entitled to immunity under the LLA. The beach is not located in
a rural area. It remains openly accessible to and used freely and frequently by
the public under the Public Access Doctrine, which recognizes that the
ownership, dominion, and sovereignty over certain natural resources "is vested
in the State in trust for the people." Matthews v. Bay Head Improvement
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Ass'n, 95 N.J. 306, 312 (1984). 8
We also decline to rest our LLA analysis on the fact that defendants
charged a parking fee. The LLA can apply to "commercial enterprises," and
the fee was not charged for engaging in a "recreational activity." N.J.S.A.
2A:42A-3(a).
B.
(Business Invitees)
We next turn to plaintiffs' argument the court erred in holding
defendants did not violate the duty owed to them as "business invitees as they
went to JSouth's beach/amusement venue for its business purpose." In making
this argument, plaintiffs acknowledge the court agreed they were business
invitees. They next argue, the court "erred in determining decedent exceeded
the scope of his business invitation when he 'voluntarily' enter[ed] the ocean"
even though they acknowledged the court clarified that decedent did not
voluntarily enter the ocean in its reconsideration decision. Plaintiffs further
contend the court ignored the "wide swath of damp sand along the water's
8
In 2019, the Public Trust Doctrine was codified as N.J.S.A. 13:1D-150(b).
Although, "[t]he public's right to access tidal waters and their adjoining
shorelines, while substantial, is not unlimited," the circumstances limiting
access are typically "necessary for" public health and safety. This could
include prohibitions on surfing immediately after a major storm, nighttime
swimming and other similar activities." Ibid.
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edge," and points to the absence of any evidence "[p]laintiffs understood
hurricane related ocean conditions were present or that walking along wet sand
near the water's edge presented dangers." Plaintiffs' arguments on this point
are without merit.
As the court explained in its reconsideration decision, decedent was an
invitee onto the beach, not the ocean, as he was specifically advised that no
swimming was permitted. Nevertheless, the court appropriately found
significant that "[d]ecedent voluntarily approached the water's edge in the face
of an approaching tide and was swept into the ocean," rolled up his pants, took
off his shoes, and walked onto wet sand, and concluded, he "clearly put
himself within reach of the ocean and its waves."
We further agree with the court that although its view of the facts may
differ from plaintiffs, there is no evidence to suggest the court failed to
appreciate the legal significance of probative, competent evidence.
C.
(The Alleged Duty to Close the Beach)
Having established the public's and plaintiffs' right to access the beach,
we now address whether there were conditions warranting closure of the beach
or should have precluded access on the day of decedent's drowning.
Based on this record, we are hard-pressed to conclude that there were
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atmospheric or weather-related conditions necessitating the closure of the
beach. We reach this determination based on the following undisputed facts:
the beach area in question is owned and operated by defendants; plaintiffs and
decedent alighted onto the beach area during the off-season at a time when
defendants had no duty to provide lifeguards; there were signs posted on the
beach, including at least one red flag warning the public that the beach area
was closed for swimming; plaintiffs and decedent were permitted to access the
beach but advised not to swim; and it was a beautiful beach day, without any
indication of inclement weather or rough surf.
The key issue in dispute on this point is whether, as plaintiffs contend,
defendants had a duty to close the beach because of the presence of a
"significant storm event" as defined in the Manual prepared in compliance
with the 2017 DEP settlement. We are not persuaded such a duty existed on
that day.
In support of their argument, plaintiffs aver that defendants had a duty to
warn them of Hurricane Teddy; "one of the four largest Atlantic Hurricanes on
record," which had formed on September 12, eleven days prior to decedent's
death. They argue defendants had at least constructive notice of the dangers
because ''the particular condition existed for such [a] period of time that an
owner . . . in the exercise of reasonable care should have discovered its
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existence." However, the record is clear: there were no hurricane watches or
warnings declared by NOAA and as the court noted, Point Pleasant premises
were never identified as being part of a coastal flood warning area, nor had the
Governor issued a state of emergency for storms or flooding. Thus, plaintiffs
cannot establish the presence of any conditions triggering the closure of
defendants' beaches.
Plaintiffs' argument that dangerous conditions persisted following the
passage of a hurricane at least one week before the day of decedent's drowning
does not satisfy the definition of a "significant storm event" as defined in the
Manual, as the area was not "within a tropical storm, hurricane watch or
warning." There was no evidence showing the boardwalk was within an area
where a surge of at least three feet of water was predicted, and the Governor
had not declared a state of emergency. We therefore reject plaintiffs'
unsupported assertions and conclude defendants had no duty to close their
beaches.
D.
(Signage)
Plaintiffs further dispute the adequacy of the signage on the beach that
warned:
BEACHES CLOSED
NO SWIMMING
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Plaintiffs stated that "not a single witness testified the sign meant the beach
was actually closed." Additionally, plaintiffs assert the red flag at the entrance
to the beach was insufficient to warn visitors not to swim or wade, when
presented without the attendant explanatory sign that is only present in -season.
Plaintiffs' expert argued defendants were "grossly negligent in failing to
provide clear and consistent messaging on their beach open or closed status,
and this put patrons in danger who would visit the beach with no knowledge of
the dangers inherent in any beach environment at any time." And, "the unclear
meaning of [BEACHES CLOSED] allowed visitors to unknowingly put
themselves at risk by entering an apparently open beach area with dangerous
conditions."
Although not specifically addressed in a separate section of its opinion,
the court incorporated the defendants’ use of signage—clearly warning the
public that the beaches were closed to swimming and that no lifeguards were
on duty—into its analysis of the defendants’ argument that plaintiffs were not
business invitees to the ocean and, consequently, that defendants owed no duty
to monitor ocean conditions.
The record reflects that defendants had prominently displayed signs in
both the parking area and on the beach, advising that swimming was prohibited
and beaches were closed. Plaintiffs do not dispute encountering signage
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bearing the message, "NO SWIMMING WHEN LIFEGUARDS ARE OFF-
DUTY," upon exiting the parking lot, in addition to at least one other sign in
the vicinity where they set up their chairs, stating "BEACHES CLOSED" and
"NO SWIMMING." David, in particular testified he observed a sign that said
"no swimming . . . when lifeguard is not on duty" in the area where they
parked and another sign saying (as he recalled it) "beach closed for
swimming." Further, two red flags were hung above the beach entrance used
by plaintiffs.
We recognize that the "BEACHES CLOSED" and "NO SWIMMING"
sign may be confusing to patrons as to whether the beach was indeed closed in
addition to prohibiting swimming. In this case, however, Lia testified she
understood the beach was not closed to visitors but rather closed only for
swimming. This testimony is consistent with the information provided to
plaintiffs by defendants' parking attendant. Further, plaintiffs maintain they
and decedent did not intend to swim, thereby undercutting their claim that the
signs were misleading because they actually understood the beach was open,
although not for swimming.
The court acknowledged that these measures undertaken by defendants
to warn the public about hidden dangers sufficiently fulfilled their duty of
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care. In our de novo review of defendants’ motion, we therefore discuss this
important issue in greater detail here.
Allowing plaintiffs all reasonable inferences, and accepting their claim
that they did not notice the red flags displayed above the entrance to
defendants' property, we nonetheless reach the manifest conclusion that
plaintiffs were unequivocally aware that swimming was prohibited and that no
lifeguards were present. As the court astutely observed, "[t]hese warnings do
not explicitly tell potential swimmers that the waters are dangerous because a
reasonable person can recognize that the ocean is dangerous twelve months a
year." Nevertheless, the warnings unmistakably convey to beachgoers that no
lifeguards were on duty should they encounter difficulties in the water.
Therefore, we remain unconvinced by plaintiffs’ arguments, and conclude that
defendants were properly entitled to summary judgment as no genuine issue of
material fact exist about the adequacy of the warnings.
E.
(Alleged Factual Errors)
Having concluded defendants had no duty to close the beach, we next
turn to plaintiffs' argument the court relied on factual errors by specifically
finding that the decedent was in the water when he was struck by the wave and
carried out into the ocean. We owe no deference to the court's summary
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judgment findings that are not supported by the record. Horne v. Edwards,
477 N.J. Super. 302, 312 (App. Div. 2023), certif. denied, 256 N.J. 439 (2024)
(citing Rova Farms, 65 N.J. at 484).
Although the court, in part, based its initial grant of summary judgment,
on this apparently incorrect fact, the court clarified its holding in its
reconsideration decision, stating: "[t]he [court] is cognizant of the fact that
while standing on the beach at the water's edge, decedent was knocked off
balance by an ocean wave from the ocean’s incoming tide and was pulled into
the ocean." (emphasis added). The court therefore clarified its ruling when it
explained "[t]he [decedent] clearly put himself within reach of the ocean and
its waves. For all practical purposes it was [d]ecedent's decision to approach
the water that resulted in him being swept into the ocean." (emphasis added).
The court soundly concluded defendants were entitled to judgment as a
matter of law, based on its finding that decedent exceeded the scope of his
invitation by approaching the water’s edge, its interpretation of the posted
warnings and nature of the premises, and its application of the Public Trust
Doctrine. Thus, we remain unpersuaded by plaintiffs' argument for reversal.
F.
(The Gross Negligence Claim)
Lastly, we are not persuaded based on the record before us that plaintiffs
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31
establish gross negligence on the part of defendants by permitting them access
to the beach after warning them not to enter the water. Gross negligence is
"the failure to exercise slight care or diligence." Introductory Notes, Model
Jury Charge (Civil) § 5.12 "Gross Negligence" (2025). Although gross
negligence is something more than "inattention" or "mistaken judgment," it
does not require willful or wanton misconduct or recklessness. Model Jury
Charge (Civil) § 5.12 "Gross Negligence" (2025). See also Steinberg v.
Sahara Sam's Oasis, LLC, 226 N.J. 344, 364 (2016).
The New Jersey Civil Model Jury Charge defines gross negligence as
an act or omission, which is more than ordinary
negligence, but less than willful or intentional
misconduct. Gross negligence refers to a person's
conduct where an act or failure to act creates an
unreasonable risk of harm to another because of the
person's failure to exercise slight care or diligence.
[Ibid.]
The model jury charge also conveys that gross negligence is an
indifference to another by failing to exercise even scant care or by thoughtless
disregard of the consequences that may follow from an act or omission. See
Id. Here, we conclude plaintiffs fail to raise any genuine factual issues that
could establish defendants' actions or omissions were so extreme as to be
deemed grossly negligent.
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G.
(Conclusion)
In sum, we conclude the court's grant of summary judgment was proper.
Defendants owed no duty to close its beach to the public on the day in question
and their signage was admittedly adequate to convey to plaintiffs they were
allowed to use the beach but prohibited from swimming. Accordingly,
plaintiffs cannot establish a prima facie case of negligence and defendants
were entitled to summary judgment in their favor.
Affirmed.
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SABATINO, P.J.A.D., concurring.
As explained in Judge Walcott-Henderson's well-reasoned majority
opinion, the trial court justifiably granted summary judgment to defendants in
this tragic case, albeit not based on immunities they had claimed under the
Landowners Liability Act, N.J.S.A. 2A:42A-2 to -10. I write separately to
underscore certain points relating to plaintiffs' argument that the signage on
defendants' premises was confusing and inadequate to warn patrons of the
hazards existing on the day of the fatality.
Our law generally recognizes that, in order to be effective, warnings
about potentially dangerous conditions or products ought to be "accurate, clear
and unambiguous." Banner v. Hoffman-La Roche, Inc., 383 N.J. Super. 364,
382 (App. Div. 2006). Commercial landowners, such as defendants in this
case, may satisfy their duty of care to invitees if there is a dangerous condition
on their premises to provide a "reasonable warning of such danger." Rapp v.
Pub. Serv. Coordinated Transp., 15 N.J. Super. 305, 312 (App. Div. 1951); see
also Kingett v. Miller, 347 N.J. Super. 566, 568 (App. Div. 2002). "Where a
warning is given, the warning must render the premises reasonably safe to
fulfill [the defendant's] duty." Berrios v. United Parcel Serv., 265 N.J. Super.
436, 442 (Law Div. 1992), aff'd, 265 N.J. Super. 368 (App. Div. 1993).
"Implicit in the duty to warn is the duty to warn with a degree of intensity that
would cause a reasonable [person] to exercise for [that person's] own safety
the caution commensurate with the potential danger." Black v. Pub. Serv.
Elec. & Gas Co., 56 N.J. 63, 85 (1970). Logically, that "degree of intensity"
should also be accompanied by a reasonable degree of clarity and accuracy.
The majority opinion describes the warnings that defendants posted on
the premises when decedent and his family came onto the beach on September
23, 2020. Ante at 9. The warnings were essentially of two kinds: (1) one or
more red flags displayed near the beach; and (2) a sign posted by the beach
entrance.1 As noted above, the sign read as follows:
BEACHES CLOSED
NO SWIMMING
The sign itself provided no further explanation. Moreover, by the time of the
family's visit, defendants had removed, after Labor Day, separate signage that
explained the meaning of the various color-coded flags.
In his report and at his deposition, plaintiffs' beach operations expert
criticized the sign as "confusing," "vague," and not "effective." He further
opined that the juxtaposition of the two declarations ("BEACHES CLOSED"
and "NO SWIMMING") made it "unclear" whether the beaches were actually
closed or not on that particular day. He additionally noted that it was
1
Although David Timpanaro recalled seeing more than one sign, only one is
presented with a photograph in the appellate record.
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uncertain whether the sign was conveying "one entire thought or two separate
thoughts."
These are tenable criticisms. If, as we know from the undisputed facts,
the beach was not completely closed on September 23, 2020, and that
defendants left the gate open to admit patrons onto the sand, then the
"BEACHES CLOSED" portion of the sign was literally wrong. In truth, the
beach was closed that day only for swimming and wading, as specified in the
Standard Operating & Training Manual. The beach was otherwise open for
sunbathing, walking, seashell collecting, and other activities by visitors that
did not involve submerging themselves into the water.
The second line of the sign ("NO SWIMMING") could further add to a
reader's potential uncertainty and confusion. Having just warned on the line
above that the beaches were "closed," what meaning does a prohibition on
swimming add? One can't swim in the ocean if access (whether "vertical" or
"horizontal") to the beaches that adjoin the water has been completely closed.
Does the sign's second line signify that visitors can disregard the first line?
Does being admitted onto the beach mean that the sign is inoperative that day
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3
or for that hour? The sign could breed confusion, 2 and thereby endanger the
persons it was intended to protect from harm.
To be sure, as defendants and my colleagues rightly note, ante at 23,
under the Public Access Doctrine embodied in the DEP permits and the
settlement agreement, defendants did not have the right to close off access to
the beach unless an enumerated exception for severe foul weather applies. As
the majority opinion demonstrates, that exception did not exist here. But
visitors would have no reason to know what the terms of those documents
specified. What they would know is that a sign by the entrance to the beach is
telling them the beaches are "closed," but, at the same time, is instructing them
to refrain from swimming if they somehow manage to access those same
closed beaches.
To be accurate and consistent, the sign preferably should have said
something akin to "BEACHES CLOSED FOR SWIMMING." As is, the sign
instead presented an arguably ambiguous message. Plaintiffs' expert therefore
presented a plausible contention that the signage failed to meet the law's
mandate that a warning be "accurate, clear and unambiguous." Banner, 383
N.J. Super. at 382.
2
"Confusion now hath made his masterpiece." William Shakespeare,
Macbeth, act 2, sc. 3.
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4
Even so, the critical defect in plaintiffs' defective-signage claim is that
both David and Lia Timpanaro admitted at their depositions that they
understood the beach was open for use except that swimming was disallowed.
That understanding was fortified by the beach attendant's oral clarification to
the family when they paid their parking fee. There is no reason to believe that
decedent, who joined in this family activity, had a contrary impression. In
short, the defects in the signage cited by the expert were inconsequential on
this record.
Consequently, I concur in our court's decision, but with the caveat that
the result here should not be misconstrued as an endorsement of the
defendants' mixed-message signage.
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