NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3282-18T3
GAIL F. DEGRAAF, a/k/a GAIL DEGRAAF and JACOBUS DEGRAAF, her spouse,
Plaintiffs-Appellants,
v.
STARLUX GOLF, LLC, a/k/a STARLUX MINI GOLF, and OCEAN RIO INVESTMENTS, LLC,
Defendants-Respondents,
and
HARRIS MINIATURE GOLF COURSES, INC., and RICHARD LEHEY,
Defendants. _____________________________
Submitted March 23, 2020 – Decided May 1, 2020
Before Judges Ostrer and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2007-17.
Davis Saperstein & Salomon PC, attorneys for appellants (Jorge R. de Armas, of counsel and on the briefs; Steven Benvenisti and Robert S. Florke, on the briefs).
Reilly McDevitt & Henrich, PC, attorneys for respondents (Tracey M. Mc Devitt and Ryan Alan Notarangelo, on the brief).
PER CURIAM
In this slip and fall negligence case, plaintiff Gail F. DeGraaf (plaintiff)1
and her husband plaintiff Jacobus DeGraaf appeal from orders granting
summary judgment to defendants Ocean Rio Investments, LLC and StarLux
Golf, LLC, and denying plaintiffs' motion for reconsideration. We have
carefully reviewed the record, agree with the motion court that plaintiff failed
to present evidence defendants breached any duty owed to plaintiff, and affirm.
I.
In our review of the record before the motion court, we accept the facts
and all reasonable inferences therefrom in the light most favorable to plaintiff s
because they are the parties against whom summary judgment was entered. Brill
1 Because plaintiffs share their surname and Jacobus DeGraaf asserts only a claim for loss consortium, we refer to Gail F. DeGraaf as "plaintiff." A-3282-18T3 2 v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Applying that
standard, the record before the trial court established the following facts.
Plaintiff, her adult daughter Sarah DeGraaf, and two friends played
miniature golf at an eighteen-hole course owned by Ocean Rio Investments,
LLC and operated by StarLux Golf, LLC in Wildwood. Plaintiff was playing
the course for the first time. After playing the first fifteen holes, Sarah DeGraaf
fell and skinned her knees.
To obtain paper towels to clean her daughter's knees, plaintiff walked
toward the course's clubhouse, traversing the area of the course comprising the
sixteenth hole. While doing so, plaintiff stepped into a depressed area on the
sixteenth hole and injured her ankle.
Plaintiff previously played miniature golf at other courses and was aware
miniature golf courses are designed with uneven surfaces and other obstacles to
make the game enjoyable and challenging. After playing the first fifteen holes
at defendants' course, and prior to traversing the sixteenth hole to get the paper
towels, plaintiff knew the course had uneven surfaces and other obstacles. The
depressed area of the sixteenth hole where plaintiff fell was an intended part of
the course's design.
A-3282-18T3 3 Prior to the course opening, a Wildwood construction official inspected
the course and issued a certificate of occupancy for it. Defendants displayed a
sign at the course and included a notice on the scorecard given to patrons,
stating: "[s]tay on designated walkways and fairways. The course has uneven
terrain. Please pay attention and watch your step." There was no separate sign
at the sixteenth hole warning about an uneven surface and no direct means of
egress from the fifteenth hole, where Sarah DeGraaf skinned her knees, to the
course clubhouse other than by traversing the area comprising the sixteenth hole.
In support of their claim, plaintiffs obtained an expert's report from Kelly-
Ann Kimiecik, P.E., a consulting engineer. In her report, Kimiecik identified
the documents and discovery materials she reviewed, and she explained she
conducted a physical inspection of the course. She concluded the sixteenth hole
includes an unmarked, unsafe, steep surface slope that "creates a distinct hazard
for pedestrians." She further opined "[t]he homogenous blending of the turf
walking surface obscured the steep slope," and the course "fails to provide
proper slopes for pedestrians wanting to egress the facility." She found the steep
slope on the sixteenth hole presented a dangerous condition; defendants failed
to post a warning about the slope on the sixteenth hole; and defendants failed to
A-3282-18T3 4 provide patrons with walkways separate from the various holes on the golf
course and information about where to go in the event of an injury.
In her report, Kimiecik relied on a Wildwood municipal ordinance
requiring commercial structures "be kept free of . . . hazards to the safety of
occupants, pedestrians and other persons," including "holes" and other
conditions. She also cited International Building Code and American Standard
Test Method standards for walkways and egress ramps. Kimiecik asserted
"administrative code and industry safety standards for ramp walking surfaces
recommend that the steep ramp slope be eliminated in order to alleviate a
walking surface hazard," and the area where plaintiff fell did not "provide proper
slopes for pedestrians wanting to egress the facility."
At her deposition, however, Kimiecik testified the municipal ordinance
provision prohibiting hazardous holes and other conditions on commercial
properties "was not intended to relate to a playing hole" on a miniature golf
course and does not "apply to the uneven surface on" the sixteenth hole that
caused plaintiff's fall. She also testified she was not aware of any "regulation
or industry standard that requires separate paths separate from the actual holes"
on a miniature golf course, and she was not of the opinion defendants were
"required to have a separate pathway so people could leave the course without
A-3282-18T3 5 walking through the playing area." She also acknowledged Wildwood issued a
certificate of occupancy for defendants' miniature golf course.
Plaintiff also relied on the expert report and testimony of golf course
architect Michael Hurdzan. In his report, Hurdzan opined that the "drop off" to
the depressed area of the sixteenth hole "was measured to have a slope of 10.5%
which could easily cause [plaintiff] to lose her balance and fall." Hurdzan also
opined the fact that the artificial turf throughout the sixteenth hole was the same
color and texture "contributed to the depression and slope not being open and
obvious." Hurdzan acknowledged the depressed area was intended "to create
'strategy' for the mini[ature] golf experience." However, in his opinion, the area
could have been raised with a slight slope or left flat with a different height of
artificial grass to eliminate the "trip and fall hazard, but . . . still create strategy
for the mini[ature] golf hole."
At his deposition, Hurdzan described his experience as an architect of
standard golf courses and acknowledged he was not an expert in miniature golf
course design. He claimed the issue presented was unrelated to miniature golf
course design and instead related to the safety of putting areas and walking
surfaces. He testified there are no laws, regulations, or industry standards that
apply to depressions or the slopes of undulations on miniature golf course holes,
A-3282-18T3 6 or that require or recommend the use of different colored artificial turf on a
miniature golf course. Hurdzan did not rely on any building codes as a standard
or guideline for his opinion, and he testified he was unaware of any information
suggesting there was "any reason to believe that [the depression on the sixteenth
hole] was a hazard." He offered his opinion based on his "personal experience
with slopes based upon [his] many years as an expert."
Defendants also provided the motion court with expert reports from a
consulting engineer and the long-time owner of the company that designed and
constructed defendants' golf course and more than 900 other miniature golf
courses. Defendants' expert reports disputed the claims made by plaintiffs'
experts; asserted the sixteenth hole was designed and constructed in accordance
with all applicable building codes; and averred the depression on the sixteenth
hole constituted a standard obstacle that was inherent in the risks regularly
associated with miniature golf.
After hearing argument on defendants' summary judgment motion, the
court determined defendants did not breach a duty of care owed to plaintiff
because the slope on the sixteenth hole that caused her to fall constituted a risk
inherent in the intended design of the miniature golf course. The court found
the course was designed with slopes and undulations as part of the game, and
A-3282-18T3 7 the fact that plaintiff traversed the sixteenth hole to obtain paper towels after
playing the first fifteen holes did not convert the sixteenth hole into a means of
egress subject to different standards or requirements or into anything other than
what it was, "a miniature golf [hole] . . . with risks." Thus, the court rejected
plaintiffs' expert's reliance on construction standards for walkways to define
defendants' duty in designing the sixteenth hole on defendants' miniature golf
course. The court entered an order granting defendants' summary judgment
motion and dismissing the complaint.
Plaintiffs filed a motion for reconsideration. The record on appeal
includes only plaintiffs' notice of motion and the court's order denying the
motion. We are therefore without any basis to summarize the basis for the
motion or the reasons for its denial. In any event, following the court's entry of
an order denying the motion, this appeal followed.
II.
Plaintiffs argue the court erred by granting defendants summary judgment
because plaintiff was not in the act of playing golf when she fell, but instead she
was using the portion of the course comprising the sixteenth hole as a walkway.
Plaintiffs contend defendants owed a duty of care to patrons using the sixteenth
A-3282-18T3 8 hole as a walkway to provide warnings about hazardous slopes or, in the
alternative, to provide a separate and safe pathway to the clubhouse.
We review orders granting summary judgment applying the same standard
as the motion court. Shields v. Ramslee Motors, 240 N.J. 479, 487 (2020);
State v. Perini Corp., 221 N.J. 412, 425 (2015) (citing Town of Kearny v. Brandt,
214 N.J. 76, 91 (2013)). Summary judgment is proper if the record demonstrates
"no genuine issue as to any material fact challenged and that the moving party
is entitled to a judgment . . . as a matter of law." Burnett v. Gloucester Cty. Bd.
of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009). Issues of
law are subject to the de novo standard of review, and the trial court's
determination of such issues is accorded no deference. Kaye v. Rosefielde, 223
N.J. 218, 229 (2015).
The mere happening of an accident raises no presumption of negligence.
Malzer v. Koll Transp. Co., 108 N.J.L. 296, 297 (E. & A. 1931); see also Long
v. Landy, 35 N.J. 44, 54 (1961). Negligence will not be presumed; rather it must
be proven. Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320,
338-39 (App. Div. 2000). "The fundamental elements of a negligence claim are
a duty of care owed by the defendant to the plaintiff, a breach of that duty by
the defendant, injury to the plaintiff proximately caused by the breach, and
A-3282-18T3 9 damages." Shields, 240 N.J. at 487 (quoting Robinson v. Vivirito, 217 N.J. 199,
208 (2014)); see also J.H. v. R&M Tagliareni, LLC, 239 N.J. 198, 218 (2019).
Determining "whether a defendant owes a legal duty to another and the scope of
that duty are generally questions of law for the court to decide." J.H., 239 N.J.
at 218 (quoting Robinson, 217 N.J. at 208).
"In general, '[b]usiness owners owe to invitees a duty of reasonable or due
care to provide a safe environment for doing that which is in the scope of the
invitation.'" Stelluti v. Casapenn Enters., LLC, 408 N.J. Super. 435, 446 (App.
Div. 2009) (quoting Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563
(2003)). "The duty of due care requires a business owner to discover and
eliminate dangerous conditions, to maintain the premises in safe condition, and
to avoid creating conditions that would render the premises unsafe." Nisivoccia,
175 N.J. at 563; see also Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238,
243 (App. Div. 2013). The duty is imposed because "business owners 'are in the
best position to control the risk of harm.'" Hojnowski v. Vans Skate Park, 187
N.J. 323, 335 (2006) (quoting Kuzmicz v. Ivy Hill Park Apartments, Inc., 147
N.J. 510, 517 (1997)).
It is well established that the duty owed by the owner of a commercial
recreational facility to its patrons is defined in part by the purpose for which the
A-3282-18T3 10 facility is designed. In Young v. Ross, the plaintiff tripped, fell, and was injured
on a depression on the fairway of a hole on a miniature golf course. 127 N.J.L.
211, 213 (E. & A. 1941). At trial, a jury found the owners and operators of the
course negligent. Id. at 211. The Court of Errors and Appeals reversed, finding
the plaintiff assumed the risk of being injured by the obstacles presented as part
of the inherent design of the course and concluding:
as a matter of law, that the hazard whereat plaintiff met his injury was within the category of the dangers that were normally attendant upon an 'obstacle golf' course, that it was in the full spirit of the game, a characteristic feature which together with other obstacles gave the sport its atmosphere suggestive of golf, that to require the various barriers and traps to be marked by warning signs or equipped with handrails would detract from the fun and the illusion and serve to take from the enterprise that which the patrons wanted, and that the plaintiff, under the circumstances . . . , was, when he entered upon that stage of the game, chargeable with knowledge of the class of dangers there to be met with and that he assumed the risks thereof.
[Id. at 214-15.]
A patron's assumption of a risk inherent in an activity "is an alternate expression
for the proposition that [the] defendant was not negligent." Hojnowski, 187 N.J.
at 340 (quoting Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 49
(1959)).
A-3282-18T3 11 Similarly, in McLaughlin v. Rova Farms, Inc., the Court considered the
duty of the operator of a recreational area that included a lake equipped with a
diving board. 56 N.J. 288, 303 (1970). The Court explained the facility operator
"was bound to use care to have and keep [the facilities or accommodations
provided to the patrons] in a reasonably safe condition for the purpose for which
they were apparently designed," id. at 303-04, and the operator should warn
patrons about facility conditions when they are "not reasonably safe and suitable
for the use for which they were . . . adapted," id. at 304.
A commercial recreational facility has no liability "for injuries sustained
as a result of an activity's inherent risks so long as that enterprise has acted in
accordance with 'the ordinary duty owed to business invitees, including exercise
of care commensurate with the nature of the risk, foreseeability of injury, and
fairness in the circumstances.'" Hojnowski, 187 N.J. at 340-41 (quoting Rosania
v. Carmona, 308 N.J. Super. 365, 374 (App. Div. 1998)); see also Rosania, 308
N.J. Super. at 373 (explaining instructors and coaches of sporting activities "owe
a duty of care to persons in their charge not to increase the risks over and above
those inherent in the sport").
Here, plaintiffs do not dispute the depression on the sixteenth hole is part
of the course design and constitutes an inherent element of the miniature golf
A-3282-18T3 12 game offered at defendants' course. During her deposition, plaintiff
acknowledged she was aware obstacles, slopes, and depressions were part of the
course design intended to make the game challenging and enjoyable. She further
admitted she observed obstacles and depressions on the course as she played the
first fifteen holes and knew the remaining holes on the course, including the
sixteenth, would contain uneven surfaces. Indeed, plaintiff concedes defendants
would not have breached any duty if she had injured herself walking across the
sixteenth hole while playing the game with a golf club in her hand because the
depression in which she stepped was an obstacle that was an inherent part of the
course and game.
Plaintiff argues defendants owed to her a duty independent of the risks she
concedes she knew and understood were inherent in the golf course and game.
She asserts defendants breached the duty because she walked across the
sixteenth hole in pursuit of paper towels instead of a golf ball, and she was not
playing miniature golf when she fell. Plaintiff's distinction makes no
meaningful difference. The change in plaintiff's subjective intent in walking
across the sixteenth hole—pursuing paper towels instead of a golf ball—did not
modify defendants' duty or impose a different duty to eliminate or warn of
A-3282-18T3 13 obstacles, slopes, and depressions plaintiffs concede present risks inherent in
the golf course and game.
Moreover, the undisputed facts establish that, although plaintiff was not
playing the sixteenth hole when she fell, she traversed the sixteenth hole
knowing its inherent physical characteristics had not been instantly altered when
she chose to pursue paper towels instead of continuing to play golf. Based on
those circumstances, we discern no basis, and plaintiffs offer none, supporting
a finding defendants owed a duty to provide plaintiff a pathway across the
sixteenth hole free of the obstacles, slopes, and depressions she concedes were
an inherent and attendant part of the course and game.
We reject plaintiff's reliance on the reports and deposition testimony of
her experts to support her claim defendants breached a duty to provide a means
of egress across the sixteenth hole free of the hazard she otherwise concedes
presented a risk inherent in the course and game. Plaintiffs' expert's opinions
constituted inadmissible net opinions that did not provide competent evidence
supporting her negligence claim.
Where "an evidence determination" is presented to a trial court
considering a summary judgment motion, the evidentiary determination must be
addressed first. Townsend v. Pierre, 221 N.J. 36, 53 (2015). In our de novo
A-3282-18T3 14 review of the award of summary judgment to defendant, we "proceed[] in the
same sequence, with the evidentiary issue resolved first, followed by the
summary judgment determination of the trial court." Ibid.
We are persuaded by defendants' argument plaintiffs' experts offered
inadmissible net opinions in opposition to the summary judgment motion. "The
net opinion rule is a 'corollary of'" N.J.R.E. 703, "'which forbids the admission
into evidence of an expert's conclusions that are not supported by factual
evidence or other data.'" Id. at 53-54 (citation omitted). In pertinent part, the
net opinion "rule requires that an expert '"give the why and wherefore" that
supports the opinion, "rather than a mere conclusion."'" Id. at 54 (citation
omitted). Under the rule, "a trial court must ensure that an expert is not
permitted to express speculative opinions or personal views[.]" Id. at 55. "[A]n
expert offers an inadmissible net opinion if he or she 'cannot offer objective
support for his or her opinions, but testifies only to a view about a standard that
is "personal."'" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 410 (2014)
(quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 373
(2011)); see also Riley v. Keenan, 406 N.J. Super. 281, 296 (App. Div. 2009)
(explaining experts "must be able to point to generally accepted, objective
standards of practice and not merely standards personal to them").
A-3282-18T3 15 "Evidential support for an expert opinion may include what the expert has
learned from personal experience and training; however such experience, in
turn, must be informed and given content and context by generally accepted
standards, practices, or customs of the . . . industry." Satec, Inc. v. Hanover Ins.
Grp., Inc., 450 N.J. Super. 319, 333 (App. Div. 2017). There must be some
"authority supporting [the] opinion," which can take the form of "any document,
any written or unwritten custom, or established practice that the [industry]
recognized as a duty it owes . . . ." Ibid. "[T]he source of the standard of care
enunciated, . . . by which to measure plaintiff's claimed deficiencies or to
determine whether there was a breach of duty owed [by] defendant[,]" must be
identified. Id. at 334.
Here, Kimiecik's opinion is founded on a municipal ordinance she
concedes does not define the requirements for miniature golf holes and building
codes that apply to walkways providing egress from structures. She concedes
depressions and obstacles are risks inherent in the miniature golf game and
courses, but her report does not cite to any industry standards applicable to the
construction of miniature golf courses. Further, she testified there are no
industry standards requiring pathways within a miniature golf course that a re
separate from the golf holes themselves.
A-3282-18T3 16 Similarly, Hurdzan acknowledged he was not an expert in miniature golf
course design, and he did not support his opinions with reference to any accepted
building codes or other standards in the miniature golf industry. To the contrary,
he conceded he was not aware of any laws, regulations, or industry standards
applicable to depressions or the slopes on miniature golf course holes or
requiring use of different colored artificial turf on a miniature golf course.
Hurdzan was unaware of any information suggesting there was "any reason to
believe that [the depression on the sixteenth hole] was a hazard," and he
acknowledged his opinions concerning the depression on the sixteenth hole were
based on his years of personal experience with slopes.
In sum, plaintiffs' experts' reports and opinions are untethered to any
standard or practice in the creation of the hazards, slopes, and obstacles inherent
in the risks associated with a miniature golf course. They constitute
inadmissible net opinions, see Satec, Inc., 450 N.J. Super. at 333-34, were based
on the experts' respective personal standards, and were not competent evidence
supporting plaintiffs' opposition to defendants' summary judgment motion.
We are convinced plaintiffs failed to present sufficient credible evidence
establishing defendants breached any duty owed to plaintiff. Plaintiff tripped
on a miniature golf course hazard that was an inherent part of the design and
A-3282-18T3 17 risks that were part of the game. Plaintiffs' experts failed to provide admissible
testimony defendants violated any law, regulation, or other industry standard
supporting a duty to construct or maintain the hazard in a manner different t han
that which existed on the sixteenth hole. The motion court correctly determined
that, as a matter of law, plaintiffs failed to present sufficient evidence
demonstrating defendants breached any duty owed to plaintiff.
Affirmed.
A-3282-18T3 18