GAIL F. DEGRAAF v. STARLUX GOLF, LLC,

NOT FOR PUBLICATION WITHOUT THE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."
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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.




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      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




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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


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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,


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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


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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




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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


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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


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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)).



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      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


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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




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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


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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").


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      "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.


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      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


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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.




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