Town’s boardwalk owners not liable for grandfather’s drowning, N.J. court rules

The owners of Jenkinson’s Boardwalk in Point Pleasant Beach are not legally responsible for the death of a grandfather who was swept into the ocean and drowned during an off-season family outing five years ago, an appellate court ruled.

Lifeguards were seasonally off-duty when Anthony Timpanaro accompanied his son, daughter-in-law and 7-year-old grandson for a day at the beach on Sept. 23, 2020. They brought chairs, and Timpanaro joined his grandson, “searching for seashells and chasing seagulls,” the decision says.

Standing at the water’s edge with his jeans rolled up, a wave knocked the 69-year-old into the ocean.

“A big wave took him and the ocean literally ate him with the undertow,” Anthony’s son, David Timpanaro, told NJ Advance Media about a week after the incident. “I grabbed his hand so hard but could not hold on.”

Timpanaro died despite the efforts of town police officers, who pulled him to shore and performed CPR. He was known as Tippy and lived in Bayonne before retiring from the postal service and moving to Manchester.

Timpanaro’s family filed suit against Jenkinson’s in May 2021, arguing the company, which also operates the town’s beachfront, was negligent on several fronts that led to the drowning.

A Morris County judge ended the suit before it reached trial by granting summary judgement to Jenkinson’s, finding the company was not responsible, relying partly on the state’s Landowner’s Liability Act (LLA).

On Friday, an appeals court affirmed the trial court’s overall ruling.

But in a precent-setting decision, the appellate judges disagreed with the trial court on one key point: they ruled Jenkinson’s cannot claim immunity under the LLA.

That law is meant to protect owners of rural or undeveloped land who allow the public to use their property for recreation.

The ocean, the decision says, was not an area intended to be covered under the LLA. “[Jenkinson’] are not owners or lessors of the ocean,” the judges wrote.

The judges said even if they were to consider Jenkinson’s as essentially the beach’s landlord, the beach still does not qualify for LLA immunity, as “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,’” the judges wrote.

The decision upheld the trial court’s other rulings, notably that the Timpanaro’s were “business invitees” to the beachfront so Jenkinson’s had a duty to warn and protect them from a life-threatening ocean condition.

The trial court, though, found, “The ocean cannot be rendered safe for ‘sport or recreation.’”

Additionally, the Timpanaros were advised before getting onto the sand that the beach was closed for swimming, and signage also stated this condition. The decision notes that Timpanaro (and his family) were invited onto the sand and beach, “not the ocean, as he was specifically advised that no swimming was permitted.”

Timpanaro’s lawyers also argued the beaches should have been closed due to ocean conditions caused by Hurricane Teddy which had formed in the Atlantic 11 days prior to Timpanaro’s death.

The appeals judges found no conditions to trigger beach closure. No hurricane watches or warnings were declared by forecasters, Point Pleasant was not part of a coastal flood warning area, nor had the Governor issued a state of emergency for storms or flooding, the decision says.

One of the three appellate judges, Jack M. Sabatino, while agreeing with the overall decision, wrote that the Timpanaro’s lawyers had a point in their arguments that Jenkinson’s had a confusing mix of signs at the beach that day.

One said, “BEACHES CLOSED” over top of “NO SWIMMING.”

The beach was not completely closed on September 23, 2020, as the family was welcomed onto the sand and entered through a gate left opened by Jenkinson’s, Sabatino opined.

The “BEACHES CLOSED” portion of the sign was “literally wrong” and that, “could breed confusion, and thereby endanger the persons it was intended to protect from harm,” Sabatino wrote.

The Timpanaros were otherwise aware that swimming was prohibited that day and the sign argument, he wrote, were “inconsequential” for this case.

However, “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.”

Paul da Costa, one of the Timpanaro family’s lawyers, said they respect the decision, but seriously disagree the result.

“We do think the appellate court has incorrectly removed the decisions that are necessary to the made in the case from a jury, who should be the ultimate fact finders in this case,” da Costa said.

“We do intend to request that the New Jersey Supreme Court review the case and are hopeful that the public policy issues in this case are addressed by the Supreme court,” he said.

Jenkinson’s lead lawyer declined comment on the decision.