A-0183-24 – David Timpanaro, Etc. v. Jenkinson's Pavilion Inc.

• Court: New Jersey Superior Court Appellate Division
• Decided: May 18, 2026
• Docket: A-0183-24
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0183-24

DAVID TIMPANARO, individually and as Executor and Administrator Ad Prosequendum of the ESTATE of ANTHONY J. TIMPANARO, 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. ______________________________

Submitted October 20, 2025 – Decided November 21, 2025. Remanded by the Supreme Court March 10, 2026. Resubmitted May 4, 2025 – Decided May 18, 2026

Before Judges Sabatino, Walcott-Henderson and Bergman. Timothy J. Foley argued the cause for appellants (Sarno Da Costa D'Aniello Maceri Webb, and Foley & Foley, attorneys; Paul M. da Costa, Sherry L. Foley and Timothy J. Foley, of counsel and on the brief).

Michael C. Corcoran argued the cause for respondents (Murphy Sanchez, PLLC, attorneys; Dennis M. Marconi and Michael C. Corcoran, of counsel and on the brief).

PER CURIAM

This case returns to us by order of the Supreme Court to reconsider

Timpanaro v. Jenkinson's Pavilion, Inc., 482 N.J. Super. 557 (App. Div. 2025)

in light of the Court's recent opinion in Arias v. Cnty. of Bergen, 262 N.J. 479

(2026), wherein the Court expanded the definition of "premises" under the

Landowner Liability Act ("LLA"), N.J.S.A. 2A:42A-3: no longer confining its

application solely to rural landscapes, but instead compelling an analysis of the

subject land's "dominant character." Guided by the Court's holding in Arias, we

modify our prior opinion to conclude that the LLA applies to the beach operated

by defendants, adjacent to where the decedent drowned. We, however, reaffirm

all other aspects of our prior opinion.

A-0183-24 2 I.

As a preliminary matter, we adopt the extensive facts contained in our

prior opinion, which need not be repeated here in detail, and therefore limit our

recitation of the facts to those necessary to place our reconsideration in context.

In September 2020, plaintiffs David and Lia Timpanaro, their minor child,

C.T., and then sixty-nine-year-old father and grandfather, Anthony Timpanaro

("decedent"), visited defendants' beachfront property. Timpanaro, 482 N.J.

Super. at 563. The family met at defendant's parking lot, paid a fee to park, and

an attendant explained, although the beach was closed for swimming, the family

could "[f]eel free to go on the beach and walk and play." Ibid. As the summer

season had ended, there were no lifeguards on duty. Ibid. The family walked

onto the beach, "settled into beach chairs and decedent and his grandson began

searching for seashells and chasing seagulls." Ibid. Plaintiffs concede they

observed signs stating the "beach was closed[,] [n]o swimming" and "no

swimming when lifeguards are off-duty." Ibid. (alterations in original).

Later, decedent joined Lia and C.T. at the water's edge. Ibid. 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," causing decedent to teeter with the wave

and stepping back, and then losing his balance. Id. at 564. A wave engulfed

A-0183-24 3 decedent and suddenly decedent was out in the ocean yelling for help. Ibid.

Plaintiff entered the ocean in an unsuccessful attempt to rescue decedent, but

tragically, decedent passed away after a failed attempt to revive him by EMS.

Ibid.

Plaintiffs filed suit on May 19, 2021, alleging negligent wrongful death,

survivorship, and negligent infliction of emotional distress. On January 3, 2024,

after discovery ended, defendants moved for summary judgment, asserting the

following: (1) immunity under the LLA; (2) no duty to monitor the ocean or

warn the public of a dangerous condition during the beach off-season; and (3)

no duty to plaintiffs, as defendants had a legal obligation to keep the beach open

to the public. Plaintiffs cross-moved for summary judgment, arguing

defendants' property is not a premises under the LLA, and therefore defendants

were not entitled to immunity. Plaintiffs' further contended even if the LLA

applied, defendants were liable for willful or malicious failure to warn against a

latent dangerous condition.

On May 28, 2024, the court granted summary judgment to defendants,

concluding the LLA applied as the ocean, by its "unique form and untamable

nature," constitutes land in a natural condition that cannot be rendered safe for

recreational activity. Timpanaro, 482 N.J. Super. at 570. The court reasoned

A-0183-24 4 the LLA was intended to preclude liability under circumstances where decedent

observed warning signs but nevertheless entered the ocean. Ibid. The court

further rejected plaintiffs' contention defendants should have closed beach

access, finding defendants were obligated to maintain public access and that

plaintiffs' proposed precautions were unsupported. Ibid. As to defendants' duty

to warn invitees of potentially dangerous conditions, the court found plaintiffs

were not invitees, nor was their parking fee consideration for entry onto the

beach, both conditions to pursue claims against a landowner under the LLA. Id.

at 571.

The court also denied plaintiffs' subsequent motion for reconsideration

under Rule 4:49-2. In reaching its conclusion, the court briefly referenced Arias,

at the time an appeal from the Law Division, which the court acknowledged was

not precedent, noting that it agreed with its logic that the "premises" in this

matter pertains to the beach and ocean.

Plaintiffs appealed, arguing "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."

A-0183-24 5 On appeal, we affirmed the motion court's grant of summary judgment in

favor of defendants but parted ways with the court's conclusion that the LLA

immunity applies to defendants. Instead, we noted that under then-existing case

law, defendants' beach was not "the type of rural landscape whose owners are

typically entitled to immunity under the LLA." Timpanaro, 482 N.J. Super. at

577. Plaintiffs petitioned our Supreme Court for certification, which was

granted, and the Court summarily remanded the matter to us, "to reconsider in

light of [Arias]." Timpanaro, 263 N.J. at 49.

II.

Our Court's recent opinion in Arias, compels us to reconsider our analysis

of the LLA's application and to hold that the LLA is applicable to defendants'

beach area adjacent to where decedent was swept into the ocean and drowned.

In reaching this conclusion, we emphasize, as the Court did in Arias, the

expanding scope of the definition of "premises" under the LLA to include lands

well beyond those in mostly rural areas of our State.

In Arias, our Supreme Court first addressed whether a vast 130-acre park

in Bergen County––a densely populated suburban area––constituted "premises"

under the LLA, and if so, whether a rollerblader, who was injured after falling

into a pothole on a paved pedestrian path, could recover against the county under

A-0183-24 6 a theory of negligence. The Court held Bergen County was entitled to immunity

under the LLA, construing the statute more broadly to encompass land in any

surrounding environment whose "dominant character" is recreational or sporting

in nature. 262 N.J. at 492. The Court explained that the county park at issue "is

the type of 'premise' that the Legislature intended to protect and preserve"

because "its dominant character is that of open and expansive land onto which

the public is invited to recreate," a conclusion the Court found consistent with

existing precedent. Id. at 494.

The Court began its analysis by engaging in an extensive review of the

LLA's history, dating from its enactment in 1968, and its progeny.1 Id. at 486-

90. The Court highlighted the significance of the Legislature's 1991

amendments to the LLA, which broadened the statute's scope by directing 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." Id. at 488 (citing N.J.S.A. 2A:42A-5.1) (emphasis omitted). The

1 See Boileau v. De Cecco, 65 N.J. 234 (1974), Harrison v. Middlesex Water Co., 80 N.J. 391 (1979), Whitney v. Jersey Cent. Power & Light Co., 240 N.J. Super. 420 (App. Div. 1990), Toogood v. St. Andrews At Valley Brook Condo. Ass'n, 313 N.J. Super. 418 (App. Div. 1998), and Mancuso ex rel. Mancuso v. Klose, 322 N.J. Super. 289 (App. Div. 1999). A-0183-24 7 Court further observed that the amendments expanded the LLA's immunity

protections to encompass "improved" and "commercial" premises, while also

enlarging the statute's illustrative recreational activities to include "riding

snowmobiles, all-terrain vehicles or dirt bikes." Ibid. (citing N.J.S.A. 2A:42A-

2 to -3).

In its present form, 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).]

The Court reasoned that "what began as narrow immunity for hunting and

fishing in forested lands has evolved into a broader immunity that is intended to

be both 'liberally construed' and to 'induce[]' landowners to create or maintain

open lands for a broad and non-exclusive array of 'sport and recreational

activities' without 'fear of liability.'" N.J.S.A. 2A:42A-5.1.

A-0183-24 8 III.

In their supplemental brief, plaintiffs contend Arias does not alter the

outcome here because "the dominant characteristic of [defendants'] property is

generating revenue, not providing free public access." 2 Alternatively, plaintiffs

contend that even if the LLA applies, defendants remain liable under the statute's

exception for a "willful or malicious failure to guard, or to warn against, a

dangerous condition, use, structure or activity." See N.J.S.A. 2A:42A-4(a).

Defendants counter that Arias compels the conclusion that the subject

property constitutes a "premises" under the LLA because the year-round

"dominant characteristic" of the property is recreation and sport. Defendants

further argue plaintiffs' contention that the parking fee constituted consideration

sufficient to create a business-invitee relationship was previously rejected by

this court and should not be revisited. Notably, defendants do not address our

prior observation that the property was not "the type of rural landscape whose

owners are typically entitled to immunity under the LLA," Timpanaro, 482 N.J.

2 Following the Court's remand, in our order dated March 17, 2026 we invited the parties to provide supplemental briefs to address the question whether the LLA applies to immunize defendants. Additionally, we scheduled and heard oral argument on May 4, 2026. A-0183-24 9 Super. at 577, a premise subsequently rejected in Arias, 262 N.J. at 482, 485,

491.

Guided by the Court's holding in Arias, we reject plaintiffs' arguments as

unavailing. We are satisfied that to hold otherwise would require us to ignore

the import of the Court's focus on the dominant character of the land analysis.

See Arias, 262 N.J. at 494 (finding that the LLA must be read broadly to

recognize the declining availability of rural recreational spaces and in favor of

expanding immunity to areas across our State based on the dominant character

of the land). We are satisfied that our conclusion is consistent with the

"dominant character of the land" analysis articulated in Toogood v. St. Andrews

Condominium Ass'n, 313 N.J. Super. 418, 425-26 (App. Div. 1998), focusing

on whether the property itself is primarily recreational in nature rather than the

character of the surrounding environment in which it is located. In doing so,

Arias expressly deemphasized the framework set forth in Harrison v. Middlesex

Water Co., 80 N.J. 391, 401 (1979), concerning whether the property is situated

in a rural or semi-rural setting. Arias, 262 N.J. at 492. As the Court explained,

"[w]e no longer find [the Harrison] factors to be particularly relevant, let alone

determinative, in the context of an analysis that should be guided by whether the

A-0183-24 10 'dominant character' of the subject 'premises' itself is of a type of open land

conducive to engaging in sport and recreational activities." Ibid.

Consistent with this mandate, we are persuaded that the dominant

character of the subject beach "itself is of a type of open land conducive to

engaging in sport and recreational activities." Arias, 262 N.J. at 492. Indeed, it

was the enjoyment of the beach that was the stated purpose for plaintiffs' visit

to defendants' property on the day in question. Accordingly, no longer is the

definition of "premises" limited to areas and types of "rural landscapes,"

adopting the rural element that case law had previously recognized. 262 N.J. at

491. Applying the Court's reasoning in Arias, we conclude that the beach,

adjacent to where decedent drowned, is a premises covered by the LLA, even

though it is not a "rural" area. 3

We are unpersuaded by plaintiffs' contention that the property is not

covered by the LLA based on the fact that a fee was charged to park plaintiffs'

vehicle. Although the LLA may apply to "commercial enterprises," the fee here

3 See also id. at 581-82 ("[W]e 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."); see also id. at 586 (Sabatino, P.J.A.D., concurring) ("the defects in the signage cited by the expert were inconsequential on this record.")

A-0183-24 11 was not charged to engage in a recreational activity. See N.J.S.A. 2A:42A-3(a).

Rather, as it was the off-season, plaintiffs did not pay to access the beach

abutting the ocean, where the incident occurred. Plaintiffs' argument that the

entire property was a commercial enterprise not subject to the LLA immunity is

thus unavailing. Defendants do not challenge that the LLA immunity is

appropriate for their businesses located on the boardwalk; they simply contend

they are entitled to immunity for incidents that occur on the beach during the

off-season.

Lastly, we reject plaintiffs' contention that even if the LLA applies

defendants are liable for willfully failing to warn decedent of a dangerous

condition, as the LLA immunity does not extend to gross negligence or "willful

or malicious failure to guard, or to warn against, a dangerous condition, use,

structure or activity" under N.J.S.A. 2A:42A-4(a). As we have previously

stated, "willful" within N.J.S.A. 2A:42A-4 means to be "'done deliberately or

knowingly and often in conscious violation or disregard of the law, duty, or the

rights of others.'" Callahan v. Tri-Borough Sand & Stone, 478 N.J. Super. 505,

514 (App. Div. 2024) (citing G.S. v. Dep't of Human Servs., 157 N.J. 161, 178

(1999)). Nothing in this record supports plaintiffs' contention that defendants

A-0183-24 12 maliciously or willfully failed to warn decedent against any danger, or were

consciously violative or in disregard of any law, duty, or rights of others.

Accordingly, we reaffirm the motion court's grant of summary judgment

in defendants' favor and dismissal of plaintiffs' complaint. Lastly, nothing in

the outcome of our majority opinion or assertions made about signage in the

concurrence is affected by Arias.

Affirmed as modified.

A-0183-24 13