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Steven Owens v. William Gelhaus

December 28, 2011

STEVEN OWENS, PLAINTIFF-APPELLANT,
v.
WILLIAM GELHAUS, DEFENDANT, AND JERSEY SHORE BEACH AND BOARDWALK T/A KEANSBURG AMUSEMENTS,*FN1 DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3548-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 19, 2011

Before Judges Sapp-Peterson and Ashrafi.

Plaintiff appeals from the trial court order granting summary judgment dismissing his claims against defendants William Gelhaus*fn2 and Jersey Shore Beach and Boardwalk t/a Keansburg Amusements ("Keansburg"), (collectively referred to as "defendants"), arising out of his complaint seeking damages for personal injuries he sustained following a bicycle accident on defendants' property. We affirm.

The facts, when viewed in a light most favorable to plaintiff, Brill v. Guardian Life Insurance Company of America, 142 N.J. 520, 540 (1995), disclose that plaintiff was riding his bicycle on Beachway Avenue. He intended, as he had done on approximately six other occasions during the preceding week, to cut through Keansburg Amusement Park in order to have access to a paved walkway while riding his bicycle. The walkway on which plaintiff intended to travel was accessible without cutting through the amusement park, which is privately owned and operated by Keansburg. While traversing the driveway portion of the entrance into the amusement park, plaintiff fell from his bicycle after riding into a wire cable.

Signs posted at every entrance into the amusement park indicate that bicycles are prohibited. When the amusement park is closed, defendants set up a barrier at the entrance to the parking lot every night. The barrier is created by a wire that "stretches from one post to another post. In the center of the entrance there is an empty oil drum, and it would sit on top of that oil drum as support." There are also orange cones placed at both the entrance and exit lanes.

During his deposition, plaintiff testified that the incident occurred at dusk and that although he requires glasses for distance, he was not wearing his glasses at the time he fell from his bicycle. Instead, he was wearing non-prescription sunglasses.

In seeking summary judgment, defendants urged that plaintiff was a trespasser to whom a minimal duty of care was owed, and that they had not breached their limited duty to plaintiff. The motion judge agreed and granted the motion. The judge reasoned:

[T]he plaintiff was a trespasser and not an invitee. The park was closed. And although the purpose of the park is to invite people to come and partake of the various amusements, it was closed at this time. And we're talking about an entrance to a parking lot that was guarded by cones, a cable and this large red barrel that held up the cones - - or held up the cable, excuse me.

The [c]court is satisfied that only a minimal duty is owed to the plaintiff in this case and all Keansburg had to do was warn of the presence of the cable and did not - - and I don't think they breached any duty there because the fact that the cable was up with the red barrel and the orange cones is indicative that the area is closed to vehicular traffic. The fact that the plaintiff is not wearing his distance glasses only adds to the problem. And it's dusk. So, it's a - - while it could be considered a dangerous condition, the [c]court is satisfied that it's not such that it would cause, certainly cause death. It [could] cause bodily injury, and obviously in this case it did. But it's not the type of condition that needs any further warning than what was given. And I'm satisfied that the defendant[s] did not create a condition that intentionally caused harm.

Clearly, the plaintiff, by going another [ten] yards, could have gone right past the entrance to get to the sidewalk he was trying to ultimately go to. And there was no basis for him to cut through as he did. And as such, I'm satisfied he was a trespasser and that the duty owed to him was not breached.

On appeal, plaintiff contends the motion judge engaged in improper fact-finding as to disputes that should have been resolved by a jury. In addition, plaintiff urges that his status as a trespasser or an invitee is a question of fact reserved to the jury. We reject both contentions and affirm substantially for the reasons expressed by Judge Dennis R. O'Brien in his October 1, 2010 oral opinion. We add the following comments.

[E]ven though the rules of landowners' liability predicated on the common law classifications of trespasser, licensee and invitee described in the second Restatement of Torts may provide guidance in determining whether a duty of reasonable care should be imposed in particular circumstances, cf. Vega v. Piedilato, 294 N.J. Super. 486, 501 (App. Div. 1996) [, aff'd, 154 N.J. 496 (1998)]; Boyd v. Conrail, [291 N.J. Super. 608 (App. Div. 1996)], this determination should ultimately turn on the factors identified in Hopkins [v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)] and applied in Brett [v. Great Am. Recreation, Inc., 144 N.J. 479 (1996)], that is, the relationship of the parties, the nature of ...


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