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Snow Tubing is the Equivalent of Skiing Under the New Jersey Ski Act

At the end of December, 2020, Plaintiff Martin McGuinniss took his family snow tubing at Campgaw Mountain, operated by Defendant Ski Campgaw Management, LLC (Campgaw). After a few runs, McGuinniss went down the hill and struck a bunched-up rubber mat, “catapulting” him into the air. He landed on his left shoulder and fractured his collar bone. The question in McGuinniss v. Ski Campgaw Mgmt., LLC, 2026 N.J. Super. LEXIS 46 (App. Div. Apr. 20, 2026) became whether snow tubing was an activity similar to skiing that protected Campgaw from Plaintiff’s personal injury suit under the Ski Act.

The tubing hill at Campgaw Mountain was divided into several lanes separated by berms of snow. Positioned at multiple points along each lane were rubber deceleration mats, equipment the ski industry accepted as an effective method of moderating speed on tubing hills. Further, Campgaw had employees positioned at the top and bottom of the hill who communicated by radio when each lane was clear for the next tube to go down.

Upon arriving at the mountain, McGuinniss signed a release where he acknowledged the inherent dangers of snow tubing. On his final run, McGuinniss was mid-hill, about 20 to 30 feet away from the first mat when he saw it had bunched up. Moving too fast to stop, he hit it, sending him into the air. After landing, he went home, returning to the mountain the next day to fill out a report. There had been 45 prior reports of accidents on the hill in the previous 2 years, but none of them were due to bunched-up mats. McGuinniss sued Campgaw for their negligence and breach of their duties under the Ski Act in causing his injury.

The New Jersey Ski Act (N.J.S.A. 5:13-1 to -11) limits the liability of the operator of a ski facility and protects it from the risks inherent in the law’s listed activities. Arising out of the uncertainty ski resorts faced after a 1970’s decision opened them to greater liability for injuries on their slopes and raised the costs of insurance, the Ski Act limited an operator’s liability to one of the narrowly defined duties in the Ski Act. Those duties required the operator to remove obvious, man-made hazards. It also protected an operator for clearly marked  equipment necessary for the operation of the ski area, and only then would the operator be liable if they knew or should have known about such a condition and had time to correct it. The Ski Act’s language defined an “operator” as one who welcomed paying customers to “ski . . . or operate skimobiles, toboggans, sleds, or similar vehicles.”

After discovery, Campgaw moved for summary judgment, asking the trial court to dismiss Plaintiff’s complaint under the Ski Act. McGuinniss argued that the Ski Act did not apply to snow tubing and, under a basic theory of negligence, Campgaw failed to observe and inspect the placement of the deceleration mats which created an unreasonable risk. The trial court agreed with McGuinniss that the Ski Act did not govern snow tubing. The court focused on control, finding the free-sliding snow tubes were “fundamentally different” from skiing or sledding because snow tubes lacked steering mechanisms or any ability to control their speed. Campgaw appealed.

The Appellate Division reversed the trial court and specifically held that snow tubing fell under the Ski Act because a snow tube is a “similar vehicle” defined in the Ski Act. The Court read the “similar vehicle” phrase broadly to include those used in snow-based recreational activities because each of them involved moving over snow-covered terrain and were subject to the same variables and inherent risks of winter activities. The Court disagreed with the trial court’s focus on controllability because nothing in the Ski Act made any reference to whether any of the listed vehicles’ inclusion relied on the issue of control; indeed, many sleds and toboggans lack braking or steering mechanisms. As a result, despite Plaintiff’s arguments, snow tubing was not so “fundamentally different” from these other activities, warranting inclusion under the Ski Act.

Applying the Ski Act to facts of McGuinniss’ case, the Court focused on Campgaw’s duty to remove man-made hazards that was limited to those hazards they knew or should have known about and had a reasonable opportunity to fix. However, because McGuinniss himself said that he only saw the bunched-up mat when he was only 20 to 30 feet away and moving quickly, he could not establish Campgaw’s employees, who were located at the top and bottom of the hill knew about the condition – they had told him the lane was clear when he began his run. Also, despite prior accidents on the hill, McGuinniss could not show that any of them were caused by bunched-up mats, dooming his claim under the Ski Act.

Notable Win: New Jersey Superior Court Grants Summary Judgment Dismissal of Intentional Wrong Claim in Workplace Injury Case

Client: Tribeca Oven, LLC

Court: Essex County Superior Court

Brief Attorneys: Betsy G. Ramos, Esq., Gitika Kapoor, Esq.

**Results may vary depending on your particular facts and legal circumstances**

Matter Caption: Tribeca Oven, LLC, et al ads. Urzola, Marta

The Court granted summary judgment in favor of defendant Tribeca Oven LLC, dismissing claims that a workplace injury involving a bakery machine rose to the level of “intentional wrong.” Plaintiff sustained injuries while operating an industrial bakery equipment and alleged that the employer’s conduct constituted intentional wrong to bypass the exclusivity of the NJ Workers’ Compensation Act.

We successfully argued the absence of evidence in the record that Plaintiff needed to show the employer’s conduct surmounted the high threshold of substantial certainty of injury to her.

Personal Injury Complaint Dismissed Against County Due to Failure to Comply with Notice Provisions of Tort Claims Act

On August 26, 2020, Plaintiff Rachel Kasuch was injured while riding her bicycle in Middlesex County Greenway, owned and operated by Defendant County of Middlesex. As she rode on a path, her foot caught on a stabilizer leg of a front end loader being operated by a County employee. This contact caused her to fall over her handlebars and suffer injuries. The issue in Kasuch v. County of Middlesex, 2026 N.J. Super. Unpub. LEXIS 790 (App. Div. Apr. 20, 2026), was whether the lawsuit should be dismissed due to Plaintiff’s failure to provide proper notice of her claim to the County, as required by the Tort Claims Act (“TCA”).

To be able to sue a New Jersey public entity for an injury, the injured party must first provide written notice of the claim to that public entity within 90 days of the incident. This notice is a prerequisite to filing a lawsuit against that entity. N.J.S.A. 59:8-3 recites the basic information which must be included in that notice of claim. If the individual fails to meet the strict requirements of this law, the claimant could argue that there was “substantial compliance” with the notice requirement. That was the argument made by plaintiff in this case.

At the time of the accident, a County employee was clearing brush from a creek along a paved County path. The employee was using a yellow loader with a backhoe and front bucket parallel to the creek. One of the loader’s tires was on the stone along the path and the other tire was on the paved path, partially obstructing it. The employee extended the loader’s two stabilizer legs, which were low to the ground.

According to Plaintiff, she saw the yellow loader but did not see the stabilizer leg on the path. She assumed she could ride past it. As she rode past the loader, the pedal of her bicycle caught on the extended stabilizer leg. That caused her to fall over her handlebars and fall to the ground.

A County employee filled out an operations report which described the accident, her name, address, and driver’s license number. It mentioned that plaintiff suffered a cut chin and dizziness. There was also a police report prepared which included Plaintiff’s name, address, date of birth, and home telephone number.

After the accident, the defendant’s third party administrator’s adjustor reached out to Plaintiff to obtain personal information, asking for her social security number, gender, and date of birth for purposes of fulfilling Medicare reporting requirements. Plaintiff refused to provide this information. Thereafter, the adjustor received a letter of representation from Plaintiff’s attorney advising of his representation and providing a copy of the police report, which the adjustor already had. But, the letter failed to describe Plaintiff’s injuries, demand a specific amount of damages, or set forth a theory of defendant’s liability for plaintiff’s injuries.

After the expiration of the 90 day notice of claim period, not receiving a notice of claim, the adjustor closed his file. In response to a February 17, 2021 telephone inquiry made to the adjustor by the attorney whether he had received a notice of claim from the plaintiff, the adjustor sent out a denial letter.

On November 2, 2021, plaintiff filed a lawsuit against the County, asking for damages due to her accident. She alleged in her complaint that she had filed a notice of tort claim but did not identify the entity upon which the notice of claim was served. However, in discovery, plaintiff produced a copy of the notice of claim, showing that it had been filed with the State Department of Treasury. The notice identified the accident as occurring in Middlesex County Greenway and the responsible agency as Middlesex County. Yet, plaintiff produced no evidence that she filed the notice with the County.

Thereafter, the County filed for summary judgment on the basis that plaintiff failed to file a notice of claim with the County. Plaintiff opposed the motion, arguing that the police report and her attorney’s letter to the adjustor constituted “substantial compliance” with the notice requirement of the Tort Claims Act. The motion was initially denied without prejudice and the judge permitted the parties to conduct discovery.

After discovery, the County then re-filed its summary judgment motion on the notice of claim issue. Now plaintiff argued that the County must have received a copy of the notice from the State because the County conducted an investigation. In the alternative, she argued that she substantially complied with the notice requirement. The trial court accepted the latter argument and denied the motion.

However, thereafter, the County filed a summary judgment on the merits of the case, arguing that the temporary parking of the loader along the paved path did not constitute a dangerous condition and that plaintiff did not act with due care to avoid the loader as she attempted to pass it. That argument the trial court accepted and granted summary judgment, dismissing the lawsuit.

That decision prompted the plaintiff to appeal the dismissal of her lawsuit to the Appellate Division. The County cross-appealed, arguing that its prior motion to dismiss for failure to comply with the notice requirement of the TCA should have been granted.

As it turns out, the Appellate Division agreed with the County that its motion on the notice requirement should have been granted, reversing the trial court’s denial of that motion. Hence, it did not reach the plaintiff’s appeal on whether summary judgment should not have been granted on the merits, finding it be moot

The Appellate Division noted that the Tort Claims notice provision serves several purposes. It permits the public entity time to review and settle meritorious claims prior to a lawsuit being filed, it provides prompt notification of the claim to adequately investigate the facts and prepare a defense, it affords the public entity a chance to correct the conditions, and informs the public entity in advance as to the indebtedness or liability that it might expect.

The notice of claim was due 90 days from the accrual of the incident, which here made it due by November 24, 2020. While plaintiff addressed her notice of claim to the State Department of Treasury, there was no evidence that she filed it with the County. Filing with the State Department of Treasury would not constitute filing this notice with the County. It must be filed directly with the specific entity against whom the claim is being made.

Next, the Court considered whether the written notification by plaintiff’s attorney constituted “substantial compliance” so as to fulfill the notice requirement. The Appellate Division found it lacking.

The notice must include basic information, including the person’s name and address. That requirement was fulfilled with the attorney’s letter and the police report.

It must identify the date, place and circumstance of the incident giving rise to the claim and must include the name of the public entity or employee causing the injury or damage, if known. The Court found that requirement also fulfilled.

But the Appellate Division found that the letter and police report did not provide “a general description of the injury, damage or loss incurred,” nor did it indicate “the amount claimed, including the estimated amount of any prospective injury, damage or loss, insofar as it may be known.”

The Court found that plaintiff claimed substantial injuries beyond a lacerated chin. Plaintiff failed to notify the County of the extent of her injuries. As a result, the County was unable to assess its indebtedness or potential liability. In addition, neither the operations report, the police report, nor the attorney’s letter identified plaintiff’s theory of the County’s liability for her claimed damages.

Further, the Court pointed out that the plaintiff failed to provide any explanation as to why she completed the State’s claim form, but failed to file with the County, the correct entity. The Appellate Division found that “[f]iling the incorrect form with the incorrect entity does not constitute a series of steps taken to comply with the notice provisions of the TCA.”  Nor did she provide any reasonable explanation why her attorney’s letter did not describe her injuries, quantify her damages, or set forth a theory of defendant’s liability for those damages.

The Court held that this failure to file a notice of claim prejudiced the County because “it was deprived of the opportunity to investigate and attempt to remediate a purported dangerous condition and assess and attempt to settle plaintiff’s damages claim prior to the filing of the complaint.”

Therefore, the Appellate Division concluded that the trial court’s finding that plaintiff had substantially complied with the notice provisions of the TCA was not supported by the evidence in the record. The Court reversed the trial court’s denial of the motion filed by the County based upon the plaintiff’s failure to comply with the notice requirement and remanded the matter back to the trial court to dismiss the lawsuit on that basis.

Court Upholds Oral Settlement of Personal Injury Claim Immediately Following Auto Accident

Plaintiff Ravon Hinton was involved in an automobile accident with Defendant Keyla Rivas Acosta on September 17, 2023. Immediately following the accident, Hinton offered to Defendant to settle the claim if Defendant would pay him $500 in cash. Acosta agreed to settle and, after negotiation as to the amount, paid Plaintiff $400. The issue in Hinton v. Acosta, 2026 N.J. Super. Unpub. LEXIS 806 (App. Div. Apr. 22, 2026) was whether this oral settlement agreement was enforceable so as to bar the lawsuit subsequently filed by Hinton against Acosta.

The accident happened when Hinton was walking across an intersection in Paterson and was struck by Acosta’s car. It was a dark and rainy night and Hinton was wearing dark clothing. Immediately following the accident and before police arrived Hinton told Acosta that there was no need to call the police or file an insurance claim or pursue any legal action against her in exchange for $500 in cash.

Despite that offer, Acosta contacted the Paterson police department and Officer Cesar Nunez arrived to respond to the call. Thereafter, the interaction between Hinton and Acosta was captured on Nunez’s body worn camera. In the footage on the camera, it shows Hinton repeatedly expressing his desire to accept $500 cash from Acosta. Caught on camera are the negotiations between Hinton and Acosta concerning a cash settlement for this accident in which Hinton eventually agreed to accept $400 to settle.

However, Acosta did not have that much cash and told the officer she would need to stop at an ATM to secure the funds to pay plaintiff. Hinton, Acosta, and the officer thereafter located an open ATM and, while on the officer’s camera, she withdrew the agreed upon cash and handed it to Hinton.

Despite this agreement, Hinton retained counsel who filed a civil complaint against Acosta on May 13, 2024. The lawsuit claimed that Hinton suffered serious injuries to his brain, neck, back, and knee due to the accident. Acosta’s attorney filed an answer, denied liability and included the affirmative defense of accord and satisfaction and release based upon the oral agreement between the parties as a complete defense to the lawsuit.

Defendant Acosta thereafter filed a motion for summary judgment, asking the court to enforce the oral settlement made at the scene of the accident. She used certifications from the officer and witnesses, deposition testimony from the officer, as well as his body camera video footage to support her motion.

The trial court judge granted the motion, dismissing the lawsuit. He found that the body worn camera footage and the officer’s testimony supported that the plaintiff was lucid, aware of the implications of his conduct, controlled the negotiations, and that there was clear evidence of an offer and acceptance.

This appeal ensued. Plaintiff argued that there was no meeting of the minds, that a hearing should have been held concerning its viability as a contract and plaintiff’s waiver of his personal injury claims were unenforceable because the settlement agreement occurred within 30 days of the accident in violation of N.J.S.A. 17:29B-15.

The Appellate Division noted that settlement agreements “are encouraged as a matter of public policy because they promote the amicable resolutions of disputes and lighten the increasing load of litigation faced by … courts.” These types of agreements are governed by principles of contract law. They are freely enforceable unless there is fraud or other compelling circumstances that should bar their enforcement.

To be valid, a settlement requires an offer and acceptance. And, the terms of the agreement “must be sufficiently definite [so] that the performance to be rendered by each party can be ascertained by each party with reasonable certainty.” The Court further noted that once the parties agree on essential terms and show an intent to be bound by those terms, then they have created an enforceable contract.

Here, plaintiff argued that he never accepted defendant’s offer to settle and that he did not have the requisite capacity to enter into an agreement. He also argued that the body worn camera footage was ambiguous.

The Appellate Division disagreed with plaintiff’s position. The Court found that the officer’s body worn camera footage showed that the parties voluntarily entered into a settlement agreement. That footage showed that a valid agreement was reached. Further, the footage showed that the plaintiff was not pressured into this settlement. To the contrary, it showed that Hinton repeatedly stated that “he just wanted his money” and “wanted to go home.”

The Court also rejected the argument that N.J.S.A. 17:29B-15 applied to these circumstances. Under this statute, no insurance release or waiver of rights by a claimant to compensation for personal injury or wrongful death, arising from an accident, executed within 30 days is enforceable without a written disclosure informing the claimant that he may seek legal representation.

The Appellate Division found that this statute only applied to a waiver or release with an insurance company and that it did not apply to private party settlements – which is what happened in this case. Hence, the Court found this statute to be inapplicable.

Thus, the Appellate Division upheld the trial court’s decision to dismiss this lawsuit based on the oral agreement reached between Hinton and Acosta at the scene of the accident.

Notable Win: New York State Appellate Division 2nd Department Affirms Defendant’s Summary Judgment Decision

Client: QMB Plumbing & Heating

Court: Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Brief Attorney: Alyson L. Knipe, Esq.

**Results may vary depending on your particular facts and legal circumstances**

Matter Caption: Hidalgo v. David Contractor NY, Inc., et al

Plaintiff tripped and fell over a hose that was on the sidewalk adjacent to ongoing construction at the abutting property. QMB Plumbing & Heating performed plumbing work at the subject premises. The Second Department affirmed QMB’s motion for summary judgment dismissing the complaint finding that QMB established it did not cause or create the dangerous condition, and that it did not own the hose or place it on the sidewalk.

Plaintiff’s Lawsuit Against Municipality Dismissed Due to Failure to Prove Constructive Notice of Alleged Dangerous Condition

Plaintiff Margaret Kelly, as Guardian ad litem for Rebecca Kelly, filed a lawsuit on behalf of Rebecca due to an accident at her parent’s condominium complex.  Rebecca was a guest of her parents at Back of Bay Condominium Association in Wildwood, when she fell in a trash collection and utility common area exterior to the condominium unit owned by her parents.  She fell and suffered serious injuries when she stepped on one of six water meter pits in the area, causing the lid to dislodge and her foot to fall into the pit.  The issue in Kelly v. Back of Bay Condominium Association, Inc., 2026 N.J. Super. Unpub. LEXIS 291 (App. Div. Feb. 19, 2026) was whether the City of Wildwood defendants could be held liable for her fall due to the condition of the loose pit cover.

Rebecca was a disabled individual with a condition known as “brittle bone disease.”  The accident happened when she was carrying a recycling container, attempting to place it in the area of the water meter pits, when she fell.  She stepped on one of the water meter pits and, due to the loose lid, it dislodged and her foot fell into the pit.  She suffered serious injuries to her left foot and ankle, requiring surgery.  She also suffered an injury to her shoulder.  She needed surgery on both her left foot and her shoulder due to her fall.

Within a few weeks of her accident, the Senior Meter Reader and Water Inspector for the City of Wildwood inspected the condominium’s utility area to observe where Rebecca fell.  He found that the lid had a frozen nut and it would not allow the lid to be locked down by whoever was there last.  As a result, he took it away, put it on his truck and put a new lid on it.

Plaintiff filed a lawsuit against multiple defendants, including the condominium association, the City of Wildwood, the City of Wildwood Municipal Utility Authority, City of Wildwood Water Utility, and City of Wildwood Sewer Utility.  Plaintiff settled out with some defendants or reached voluntary dismissals as to others, but not the Wildwood defendants. 

In discovery, it was disclosed that the City had transmitters located on top of the lid and that the water meter pit and equipment in question was last replaced some years before the accident.  The testimony from the Water Director for the City was that the water meter pit lids had software or machines that pick up the readings from the meter and transfers the information remotely to staff as they ride up and down the street.  Thus, remote meter reading eliminated the need for quarterly on-site inspections of each meter and was both faster and more effective.  The meters were read electronically on a quarterly basis.

After the conclusion of discovery, the Wildwood defendants filed for summary judgment, seeking dismissal of all claims.  In response to the motion, plaintiff conceded that there was no evidence of actual notice of the alleged dangerous condition posed by the loose lid.  However, plaintiff argued that there should be constructive notice of the alleged dangerous condition.  The trial court disagreed and granted summary judgment.  This appeal ensued.

The Appellate Division noted that, under the Tort Claims Act, a public entity may only be liable for a personal injury caused by the dangerous condition of its public property.  Among other elements that a plaintiff must prove, the plaintiff must prove that the public entity had actual or constructive notice of the dangerous condition for a sufficient time prior to the injury to take measures to protect against the dangerous condition.

Because plaintiff conceded that the Wildwood defendants lacked actual notice of the dangerous condition, the Appellate Division only analyzed whether plaintiff had established constructive notice under the Tort Claims Act.  The Court concluded that plaintiff failed to establish that the Wildwood defendants had constructive notice.  Plaintiff argued that under the City’s ordinances, the internal policies on lid safety and the replacement of the frozen nut after the accident supported “a reasonable inference that unsafe conditions were regularly observable and existed for a sufficient period of time to establish constructive notice.”

The Appellate Division pointed out that although the Wildwood defendants conceded that there was a loose pit lid and that such condition presented a danger, it is well settled that “the mere existence of an alleged dangerous condition is not constructive notice of it.”  There were no proofs showing that Rebecca, her family members, or any of the condominium’s residents had reported or complained about a loose or unsecured meter pit lid prior to the fall.  As the trial court noted, there was no information as to how long the lid was loose, whether it was for an hour, a week, a month or a year. 

Plaintiff also argued that constructive notice may be imputed to the Wildwood defendants based upon their duty to “inspect, detect and correct missing and loose lids.”  The Appellate Division agreed with the trial court judge that this argument was a misinterpretation of the applicable law and would essentially impose strict liability on the part of the Wildwood defendants for any injuries that arose from any sort of dangerous condition that existed on their property.

The Court pointed out that such an interpretation of the Tort Claims Act would be antithetical to its statutory purpose “to provide general immunity for all governmental bodies except in circumstances where the Legislature has specifically provided for a liability.”  Thus, the Appellate Division agreed that the existence of a general duty, policy, or training for public utility employees was insufficient to satisfy the notice requirement of the Tort Claims Act under the circumstances presented. 

The Appellate Division also addressed whether the City’s conduct was “palpably unreasonable” in failing to detect and correct the loose water pit lid condition.  The Court found that because plaintiff did not establish that the Wildwood defendants had constructive notice of the loose water pit lid, its failure to repair it prior to plaintiff’s fall could not be viewed as palpably unreasonable conduct. 

Hence, for all of the above reasons, the Appellate Division upheld the trial court’s decision to dismiss the lawsuit as to all of the Wildwood defendants.

New Jersey Supreme Court Rules That Landowners Liability Act Bars Claim for Fall in County Park

Plaintiff Andris Arias was injured due to a rollerblading accident at a park owned by the County of Bergen.  Plaintiff Arias filed a lawsuit against the County for personal injuries. This case went all the way up to the New Jersey Supreme Court.  The issue in the Supreme Court case of Arias v. County of Bergen, 2026 N.J. LEXIS 68 (Jan. 22, 2026) was whether the County had immunity under the Landowners Liability Act for this accident. 

Fortunately, for the County, at all levels of the court system, the judges agreed that the County was immune from liability.  Further, when the case reached the Supreme Court, the Court clarified the test to be used, making it easier for more premises to quality for this immunity. 

Plaintiff Arias was rollerblading at Van Saun County Park owned and operated by the County of Bergen when the plaintiff fell into a pothole on a paved pedestrian path.  This park consisted of 130 acres, containing playgrounds, tennis courts, pathways, fishing ponds, and wooded areas.  It was available to the public free of charge.  Plaintiff sued the County, claiming negligence for failure to maintain the path or warn visitors of the pothole.

Before rendering its decision, the Supreme Court went through the history of the Landowners Liability Act.  The first version was enacted back in 1962 and was passed to protect landowners from liability for hunting and fishing on their property.  Then, it was replaced in 1968 and immunity was expanded to an “owner, lessee or occupant of premises” for “sport and recreational activities.”  Then it was further amended in 1991 to make it clear that it should be liberally construed to serve as an inducement for landowners to permit persons to come onto their property for sport and recreational activities without fear of being sued.  At that time, the immunity was also expanded to improved or commercial premises. 

Prior to this amendment, the Supreme Court utilized a four part test to determine if there should be immunity.  Pursuant to that test, the factors to be considered in determining the applicability of the landowners’ liability were as follows: “the use for which the land is owned, the nature of the community in which it was located, its relative isolation from densely populated neighborhoods, as well as its general accessibility to the public at large.”

However, in Arias, the Court decided that the analysis of whether this Act should apply would depend on the “dominant character” of the premises itself and whether it is open land conducive to engaging in sport and recreational activities.  Thus, the four part test was abandoned in favor of this simpler “dominant character” of the premises test.

The Supreme Court expressed its concern that, to hold otherwise, it might discourage counties and municipalities from opening existing or new properties to the public for free.  Further, the Court noted that if this park was not covered by the Act, it might cause public entities to close their parks to avoid liability and cause increased costs to taxpayers. 

There are two caveats for the Act to provide immunity.  First, the premises must be open to the public free of charge.  Second, while the Act immunizes negligent conduct, it does not immunize “willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure of activity.”  However, based upon this Supreme Court decision, more premises will qualify for immunity under the Landowners Liability Act.

Plaintiff’s Lawsuit Dismissed Due to Failure to Prove Causal Relationship Between Inhalation of Fumes and Her Fall

Plaintiff Yireika De La Rosa went to defendant LA Gypsy restaurant with a friend.  She drank half a beer and went to the restaurant’s restroom.  As she approached the restroom, she noticed maintenance staff spraying a blue liquid, which smelled like ammonia, onto the floor.  Plaintiff passed through the area, felt she could not breathe and began to run towards the front of the restaurant, ultimately falling to the ground and suffering injuries.  The issue in De La Rosa v. LA Gypsy, 2025 N.J. Super. Unpub. LEXIS 2521 (App. Div. Dec. 5, 2025) was whether the plaintiff had met her burden to show defendant breached any duty of care to her and whether she presented any facts tending to prove a causal relationship between her inhalation of fumes from the blue liquid and her fall outside the restaurant.

According to plaintiff, when she smelled the liquid, “she thought she was going to die.”  After exiting the restaurant, she passed out and fell to the ground.  After she woke up, she felt pain in numerous parts of her body.  There were no warnings in front of the bathroom as the staff person was cleaning the floor.  Plaintiff could not recall whether there was a descriptive label or other mark identifying the substance of the spray bottle which contained the blue liquid that the employee was using to clean the floor.

After the incident, plaintiff went to the emergency room.  She ultimately had neck and back surgery due to her injuries.

Plaintiff named Dr. Elkholy as an expert witness.  According to his report, plaintiff suddenly became dizzy and collapsed, due to inhaling ammonia in a closed restaurant that was not anticipated.  He attached an article to his report, confirming the toxic side effects of the sudden presence of ammonia wherein same is unanticipatedly inhaled.  He opined that it was a foreseeable consequence that an individual will suddenly experience a medical calamity, dizziness, and collapse.  He further opined that plaintiff’s cervical and lumbar injuries were all related to this incident at the restaurant.

Plaintiff had sued the defendant restaurant for negligence.  After completing discovery, the defendant restaurant filed for a summary judgment dismissal, which was granted. 

The trial court found that the expert’s report was not probative on the question of causation.  The judge noted that there are a lot of other facts that could have helped support the fact that the blue liquid was ammonia.  The trial court judge found that the plaintiff’s expert did not identify what contents were in the spray bottle or what substances were discovered in plaintiff’s body afterwards which could have caused her to faint or collapse.  Even assuming that the substance was ammonia, the court held that the presence of ammonia in the hallway leading to the bathroom and the eventual collapse of plaintiff was insufficient to show that ammonia caused plaintiff’s collapse.

This summary judgment dismissal was appealed.  The Appellate Division noted that there was no dispute that the defendant restaurant owed a duty of care to plaintiff as a business invitee, nor that plaintiff fell outside the restaurant and suffered injuries.

The issue was whether defendant breached any duty of care to her, as well as whether plaintiff offered any material facts to prove a causal relationship between the fume inhalation from the blue liquid and a fall outside.

Under New Jersey law, the Appellate Division noted that a business owner was required to guard against any dangerous conditions on the property that the owner either knows about or should have discovered and to conduct a reasonable inspection to discover any latent dangerous conditions. 

The Court stated that plaintiff offered no competent evidence, other than her own testimony, to establish what the blue liquid substance she observed was, its composition, whether defendant’s cleaning staff sprayed the blue liquid in a proper manner and the size and ventilation of the hallway where she observed the liquid.  The plaintiff failed to proffer any testimony that it was unreasonable for the defendant’s staff to use the blue liquid or how its use created a dangerous condition.  The Appellate Division noted that the plaintiff failed to depose defendant or any of its employees to ask what kind of solution the cleaning staff used on the date of the accident.

Hence, even giving plaintiff all reasonable inferences, the Court determined that plaintiff had failed to meet her burden to show a genuine issue of material fact which would tend to prove that defendant breached its duty of care through its cleaning personnel improperly using an unidentified blue liquid.  Plaintiff’s own testimony about the presence of ammonia in the hallway was unsupported by facts and represented self-serving testimony which would be insufficient to defeat summary judgment.

Next, the Court considered whether the plaintiff had proved proximate causation.  The Court noted that to prove proximate cause, plaintiff bears “the burden to introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.”  Expert testimony on the topic of proximate cause would be necessary when it is outside a juror’s common knowledge.

Plaintiff argued that her expert, Dr. Elkholy, rendered an opinion that established a nexus between plaintiff’s collapse and the blue liquid that was sprayed.  The Appellate Division disagreed.  Dr. Elkholy failed to conduct any testing of the restaurant, did not review any records of the composition of the blue liquid, and reviewed  no toxicological reports of plaintiff after her exposure to the blue liquid.

Thus, the Court found that the plaintiff’s expert had no factual basis to reach any conclusions about what plaintiff was exposed to, for how long, or how and if it affected her in any way.  Without evidence of what the blue liquid consisted of and a toxicology report to show what plaintiff had inhaled, the Appellate Division found that Dr. Elkholy’s opinion was without foundation and was a net opinion.  Hence, without an expert to prove causation, plaintiff’s claim could not survive summary judgment.

Thus, the Court determined that plaintiff had failed to meet her burden to show defendant breached any duty of care to her, nor did plaintiff meet her burden to prove proximate cause.  The Appellate Division affirmed the trial court’s order, granting summary judgment and dismissing the lawsuit.

Landowner’s Liability Act Does Not Extend to Local Beaches or the Ocean

In Timpanaro v. Jenkinson’s Pavilion, Inc., 2025 N.J. Super. LEXIS 71 (App. Div. Nov. 21, 2025), the estate of Anthony Timpanaro sued Jenkinson’s Pavilion, a boardwalk amusement complex with access to Point Pleasant Beach, for negligence arising from Anthony’s drowning death.

The case arose when, a few weeks after Labor Day, 2020, grandfather Anthony and his son’s family, visited Jenkinson’s for a day at the beach. Though the summer season had ended and there were no lifeguards on the beach, ordinances and permits required Jenkinson’s to keep the beach premises open. Jenkinson’s posted signs saying, “Beach Closed No Swimming” and “No swimming when lifeguards are off-duty.” While walking on the beach in his bare feet and his pants legs rolled up, Anthony and his grandson looked for seashells and chased seagulls on the wet sand of the water’s edge. Suddenly, a wave unexpectedly rolled in and knocked Anthony down; a second wave pulled him into the ocean. Despite the efforts of his son and local first responders, Anthony drowned.

Before the case could be heard by a jury, Jenkinson’s asked the court to dismiss the case by summary judgment, claiming in part that, because the beach and the ocean were large, outdoor areas open to the public, Jenkinson’s had immunity under the Landowner’s Liability Act, N.J.S.A. 2A:42A-5.1 (“LLA”). The trial court agreed and dismissed the suit. Anthony’s estate quickly appealed, claiming the LLA did not apply to Jenkinson’s.

The LLA states that the owner or occupant of premises, whether or not improved in a natural state or as a commercial enterprise, does not owe a duty to keep the premises safe for people who enter or use the premises for recreational activities, or to warn of any hazardous condition of the land or for any reason arising from people’s activities on the premises. The LLA’s intention was to permit landowners to allow people to use their property for recreational activity free from the tort liability that comes with the common law; with a few exceptions, including willful or wanton conduct or charging a fee for engaging in the recreational activity on the property.

However, prior courts have limited the LLA’s scope, noting that its intention was for largely unsupervised, rural or woodland activities (such as hunting and four-wheeling), and not improved lands that are freely used by the general public and located in populated urban or suburban neighborhoods.

It was on these grounds that the Appellate Division disagreed with the trial court, finding that the LLA did not apply to the beach. They found that it was not located in a rural area and remained openly accessible to and was used freely and frequently by the public. Moreover, it held the LLA did not apply to the ocean, the area that claimed Anthony’s life, as Jenkinson’s is “not [an] owner . . . of the ocean.”

Interestingly, despite disagreeing with the lower court on the LLA, the appellate court upheld Jenkinson’s dismissal on other grounds. The higher court agreed Jenkinson’s had met its duty to a business invitee by posting “no swimming” signs to warn Anthony, but he “was an invitee onto the beach, not the ocean.” It found that by taking off his shoes, rolling up his pants, and walking onto wet sand, he “clearly put himself within reach of the ocean and its waves.”

Appellate Division Refuses to Allow Plaintiff to Use the “John Doe” Rule to Avoid a Statute of Limitations Dismissal

New Jersey’s two-year statute of limitations is very strict, requiring a plaintiff to file their personal injury suit within two years of the date of the accident or injury or suffer a permanent bar to sue anyone for their injuries. New Jersey’s fictitious party rule (“John Doe” Rule), U. 4:26-4, provides a safe haven to a plaintiff “if the defendant’s true name is unknown to the plaintiff” after the statute of limitations has expired if they identify a John Doe as a placeholder for a to-be-identified defendant. This rule allows a plaintiff who timely files their complaint to amend their complaint to name the previously unknown, true defendant, after which the amended pleading will “relate back” to the original pleading and, thus, avoid the bar of the statute of limitations.

In Perez v. Rental Shop Holdings, LLC, 2025 N.J. Super. Unpub. LEXIS 1938 (App. Div. Oct. 15, 2025), plaintiff Leonidas Perez attempted this tactic. After falling down a flight of stairs in her apartment building in Newark, Ms. Perez went to an attorney with all of the critical information of her injury: the facts of her fall, the correct address of her apartment building, and the identity of her landlord, defendant Rental Shop Holdings. Three days before the two-year statute of limitations expired, her attorney filed a personal injury complaint identifying only the State of New Jersey and a fictitious “John Doe” as defendants. Two weeks later, realizing he entered an incorrect address for the building and the State as an incorrect defendant, her attorney filed an amended complaint under the “John Doe” Rule. He admitted that, despite having the correct information, he simply erred in naming the wrong defendant.

After service of the amended complaint, Rental Shop filed a motion to dismiss Ms. Perez’s complaint for violating the statute of limitations. The trial court denied the motion, ruling that because the attorney acted so quickly in filing the amended complaint, his conduct showed both due diligence and the lack of any prejudice to Rental Shop, two factors courts use to support the Rule’s application.

Upon appeal, the Appellate Division strongly disagreed, emphasizing the primary requirement in using the “John Doe” Rule is that that the plaintiff not know or have any reason to know the John Doe defendant’s identity. It discounted plaintiff’s due diligence claims because, despite quickly correcting the error, she and her attorney had two years to confirm the proper defendant, and her failure to do this “basic and easy investigation,” and name them in the timely filed initial complaint, was a simple lack of diligence.

This case sticks out from more traditional John Doe cases because courts will commonly grant, and affirm, the use of fictitious party practices, often opting to see cases resolve on their merits rather than more technical disqualifications. Yet, the starkness of the attorney’s error in failing to identify Rental Shop as the proper defendant in the complaint filed before the expiration of the statute of limitations, despite his client’s clear communication of that fact to him, and his candid admission of the mistake, likely made this determination by the Appellate Division quite simple.

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