Martin McGuinniss v. Ski Campgaw Management LLC

NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-0058-25

MARTIN MCGUINNISS and
JAMIE MCGUINNISS, his
spouse,

      Plaintiffs-Respondents,                 APPROVED FOR PUBLICATION
                                                      April 20, 2026
v.                                                APPELLATE DIVISION


SKI CAMPGAW
MANAGEMENT LLC, SKI
BLUE HILLS MANAGEMENT
LLC, and CAMPGAW MOUNTAIN
SKI AREA,

      Defendants-Appellants,

and

COUNTY OF BERGEN,

     Defendant.
_______________________________

            Argued February 4, 2026 – Decided April 20, 2026

            Before Judges Smith, Berdote Byrne, and Jablonski.

            On appeal from an interlocutory order of the Superior
            Court of New Jersey, Law Division, Bergen County,
            Docket No. L-5138-22.
            Samuel J. McNulty argued the cause for appellants
            (Hueston McNulty, PC, attorneys; Samuel J. McNulty
            and Edward J. Turro, on the brief).

            Timothy J. Foley argued the cause for respondents
            (Davis, Saperstein & Salomon, PC, and Foley &
            Foley, attorneys; Matthew A. Schroeder and Timothy
            J. Foley, of counsel and on the brief).

      The opinion of the court was delivered by

BERDOTE BYRNE, J.A.D.

      In this interlocutory appeal, remanded to us from the New Jersey

Supreme Court, we are asked to determine the novel question of whether the

Ski Act, N.J.S.A. 5:13-1 to -11, applies to snow tubing. We conclude the

Legislature intended the Ski Act to apply to snow tubing activities, and,

pursuant to the facts of this case, plaintiff cannot demonstrate the operator of

the snow tubing site had actual or constructive notice of a hazard he alleges

caused his injuries. Therefore, we reverse the order denying defendant Ski

Campgaw Management LLC summary judgment. 1


1
   In its oral opinion on summary judgment, the trial court stated it was
granting summary judgment on the claims against defendants Ski Blue Hills
Management LLC and Bergen County. However, in its March 28, 2025 order,
the court granted defendants' motion for summary judgment only as to count
four, brought against Bergen County alone. As a result, defendants Campgaw
and Ski Blue Hills Management appealed from the final order. We conclude
the trial court's oral opinion, granting summary judgment as to the claims
against both Bergen County and Ski Blue Hills Management LLC, is
controlling. See Taylor v. Int'l Maytex Tank Terminal Corp., 355 N.J. Super.


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                                       I.

      The record shows that on December 29, 2020, plaintiff, along with his

wife and two children, went snow tubing at a site operated by Ski Campgaw

Management LLC (defendant). The snow tubing hill at Campgaw is separated

from the main ski slopes. At the time of the accident, it consisted of several

separate lanes divided by berms of snow.       Rubber deceleration mats were

placed at multiple points in each lane. Employees, who communicated with

one another via radios, were positioned on the top and bottom of the hill.

      Before he began snow tubing, plaintiff signed a release agreement. The

agreement included the following text at the top:

            I understand and acknowledge that SNOW TUBING
            IS AN INHERENTLY DANGEROUS ACTIVITY.
            By participating in this activity and signing this
            agreement:     I ACKNOWLEDGE AND ACCEPT
            THAT CERTAIN INHERENT RISKS EXIST WHEN
            PARTICIPATING IN SNOW TUBING and that I
            MAY SUFFER SERIOUS, IF NOT FATAL,
            INJURIES as a result. I additionally AGREE NOT
            TO SUE FOR INJURIES SUSTAINED and admit
            that my participation is completely voluntary.

      Plaintiff went down the hill "two or three" times in "various lanes"

before the accident. On his final run, plaintiff opted to descend the slope lying
__________________________

482, 498 (App. Div. 2002) ("Where there is a conflict between a judge's
written or oral opinion and a subsequent written order, the former controls.").
Therefore, we refer to Campgaw as the sole remaining defendant on appeal.


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flat on his stomach on the snow tube rather than sitting in an upright position

as he had during his previous runs. This riding position was permitted by

Campgaw. Plaintiff described what happened:

            I go up. They tell me to go to a lane. I went down
            head first. As I was going down, I noticed the mat
            was bunched up and it was too late. I was moving too
            fast. I hit it and I kind of catapulted off of it and
            landed on my left shoulder.

      According to plaintiff, he noticed the bunched-up mat only when he was

"20 or 30 feet" away, and at that point he was moving too fast to stop. The

mat plaintiff hit was placed in "the middle of the hill" and was the first of

several that were intentionally placed in each lane to slow down snow tubers.

The mats had been in place during plaintiff's previous runs. After hitting the

mat, plaintiff was "catapulted off [of the tube] and landed on [his] left

[shoulder]." Upon landing, he "felt like a quick pop, pop and then it just

basically got like that burning feeling." An employee at the bottom of the hill

asked plaintiff if he was okay, to which plaintiff responded, "I don't know" and

walked away. Plaintiff did not alert anyone about the bunched-up mat. None

of plaintiff's family members witnessed the incident.

      After the accident, plaintiff left Campgaw but did not speak to any

employees about the injury. He then went to the hospital to receive treatment.

He returned to Campgaw the next day, after speaking with a lawyer, and filled



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out an incident report. In its description of the incident, the report states:

"[G]oing head first[.] 1st mat[] was bunched up[.] Hit & flipped out of tube."

Plaintiff sustained a comminuted fracture of the mid-shaft clavicle.

        Discovery revealed there were forty-five incidents involving snow tubers

and deceleration mats in the two winter seasons before this incident ,

documented by Campgaw staff on "Winter Incident Report Form[s]." No party

presented evidence regarding whether any of these incidents involved a

bunched-up deceleration mat.

        Plaintiff filed a six-count complaint against Campgaw, Ski Blue Hills

Management LLC, Campgaw Mountain Ski Area, Bergen County, and various

fictitious parties, 2 alleging common law negligence and breach of the Ski Act's

statutory duties.    Count one alleged, against all defendants, "the careless,

reckless, and negligent, ownership, operation, lease, control, supervision,

management and/or maintenance and/or repair and/or inspection of the

premises and/or the tubing equipment."         Count two alleged defendants, as

independent contractors, contributed to the "careless, reckless, and negligent

upkeep and/or maintenance and/or inspection of the premises and/or the tubing

equipment." Count three alleged defendants violated their duties pursuant to

the Ski Act. Count four alleged defendant County of Bergen was responsible

2
    These fictitious parties were never served or identified.


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for the injury. Count five alleged negligence on the part of "Defendants John

Does 1-10 and/or XYZ Corps. 1-10." Count six was a loss-of-consortium

claim made by Jamie McGuinniss, plaintiff's spouse.

      The parties submitted expert reports. Campgaw's expert stated in his

report that rubber deceleration mats are "equipment that is necessary for the

ordinary operation of the ski area." He further stated, within the ski industry,

the mats are considered "effective as deceleration assistive devices and as

such, have become a generally accepted industry practice."

      Plaintiff's expert also submitted a report, which concluded Campgaw

"failed to reasonably observe and inspect the random placement of

deceleration devices in the deceleration zone, creating an unreasonable risk of

serious personal injury to its clients." However, importantly, plaintiff's expert

admitted during his deposition he was not asked to opine regarding the Ski

Act, which he deemed inapplicable to snow tubing.              Therefore, plaintiff's

expert did not posit an opinion as to whether deceleration mats are "accepted

industry practice" or whether they are "obvious, man-made hazards" pursuant

to the Ski Act.    Instead, his expert report sounded in general negligence

theories. Following a N.J.R.E. 104 hearing, the trial court ordered plaintiff's

expert was "precluded from giving any opinion testimony about or referring to

the New Jersey Ski Statute or its application to this case."



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      The parties later stipulated to dismissing the claims against defendants

County of Bergen and Ski Blue Hills Management, LLC, without prejudice.

All defendants then moved for summary judgment.

      The trial court agreed with plaintiff and found the Ski Act was

inapplicable to snow tubing. It reasoned that snow tubing was "fundamentally

different" than skiing or sledding because "there's no steering mechanism on a

snow tube and no ability to control one's speed." The court denied summary

judgment as to plaintiff's claims against Campgaw brought under both the

common law and the Ski Act (counts one, two, three, and six).

      Defendant sought leave to appeal, which we denied.         It then moved

before the Supreme Court for leave to appeal, which the Court granted,

summarily remanding the case to us to determine whether the Ski Act applies.

                                      II.

      We review a trial court's grant of a motion for summary judgment de

novo. Christakos v. Boyadjis, 262 N.J. 447, 462 (2026). Pursuant to Rule

4:46-2(c), a motion for summary judgment shall be granted if "the pleadings,

depositions, answers to interrogatories and admissions on file, together with

the affidavits . . . show that there is no genuine issue as to any material fact

challenged and that the moving party is entitled to a judgment or order as a

matter of law."   We therefore consider "whether the competent evidential



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materials presented, when viewed in the light most favorable to the non -

moving party, are sufficient to permit a rational factfinder to resolve the

alleged disputed issue in favor of the non-moving party." In re Est. of Jones,

259 N.J. 584, 594 (2025) (quoting Padilla v. Young Il An, 257 N.J. 540, 547

(2024)).

      Likewise, we review questions of statutory interpretation de novo.

Musker v. Suuchi, Inc., 260 N.J. 178, 185 (2025). In doing so, "[w]e ascribe

to the statutory words their ordinary meaning and significance and read them

in context with related provisions so as to give sense to the legislation as a

whole."    Borough of Englewood Cliffs v. Trautner, 260 N.J. 410, 419-20

(2025) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). "If the plain

language of a statute is clear, our task is complete."    Savage v. Twp. of

Neptune, 257 N.J. 204, 215 (2024). But if the language is ambiguous, "we

may turn to extrinsic evidence, including legislative history, committee

reports, and contemporaneous construction."        Trautner, 260 N.J at 420

(quoting DiProspero, 183 N.J. at 492-93) (internal quotation marks omitted).

Additionally, we are "bound to apply clearly defined statutory terms." In re

S.O., 482 N.J. Super. 265, 284 (App. Div. 2025).




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                                      8
                                        III.

                                        A.

      We begin our analysis with a review of the history of the Ski Act, which

narrowly limits the liability of the operator of a ski facility and protects it from

risks inherent to the activities defined in the statute. The impetus of the Ski

Act was the Vermont Supreme Court's decision in Sunday v. Stratton Corp.,

390 A.2d 398 (Vt. 1978). In Sunday, the plaintiff was paralyzed after skiing

over a "clump of brush" concealed in the snow. Id. at 400-01. The court

upheld the denial of the ski resort's motion for a directed verdict. Id. at 403.

The holding in Sunday, as paraphrased by our Supreme Court, was that "the

common-law doctrine of assumption of risk would no longer serve as a

complete bar to skiers who seek to recover from ski-resort operators for

injuries caused by hazardous trail conditions." Brett v. Great Am. Recreation,

Inc., 144 N.J. 479, 495 (1996).

      Before Sunday was decided, the general rule was "[o]ne who takes part

in such a sport accepts the dangers that inhere in it so far as they are obvious

and necessary." Ibid. (alteration in original) (quoting Wright v. Mt. Mansfield

Lift, Inc., 96 F. Supp. 786, 791 (D. Vt. 1951)). According to this rule, a

collision with a snow-covered stump was considered an inherent risk of skiing.

Wright, 96 F. Supp at 791. Sunday eviscerated that concept by holding "the



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ski area operator had a duty to maintain the slopes, and the assumption of risk

doctrine could not bar suit if the injury was caused by the condition of the

'field' rather than by the 'playing of the sport' itself." Hubner v. Spring Valley

Equestrian Ctr., 203 N.J. 184, 199 (2010) (quoting Sunday, 390 A.2d at 403).

      Sunday was "uniformly . . . interpreted as broadening the potential

liability of ski resorts." Brett, 144 N.J. at 495. Moreover, there remained

uncertainty about the extent of ski operators' liability "because the Sunday

decision essentially left open the question of where the line would be drawn

between those injuries that were caused by the condition of the field, as to

which the operator would be liable, and those that were the result of the

playing of the sport itself, as to which assumption of the risk would bar

recovery for the injured participant." Angland v. Mountain Creek Resort, Inc.,

213 N.J. 573, 584 (2013).

      Our Legislature passed the Ski Act to abate what it perceived to be these

alarming concerns. See L. 1979, c. 29. The committee statement expressly

noted Sunday's effect on ski operators' liability and sought to curtail the cost of

insurance for ski resorts. See Assemb. Judiciary, L., Pub. Safety & Defense

Comm. Statement to A. 1650, at 1 (Nov. 20, 1978) ("The uncertainty over

what effect the Sunday case will have on the liability of ski area operators for

skiing injuries has led to increases in the cost of liability insurance. It also



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poses a threat to the availability of this type of insurance which is currently

provided by only a few insurers.").         As our Supreme Court noted, "[t]he

Legislature's sole focus . . . was upon the continued viability of the ski industry

and, in particular, the ability of resort operators to secure insurance."

Angland, 213 N.J. at 584. The Ski Act achieved those goals

            by defining the responsibilities of ski area operators,
            by limiting the liability of ski area operators to a
            breach of one of those responsibilities, and by
            identifying the duties of skiers, and the risks that they
            assume, for which the operator will not be liable. In
            clear language, the Legislature provided that because
            of the participant's assumption of the identified risks,
            his or her suit arising from an injury due to any of
            those inherent risks would be barred. The Legislature
            further made plain that the principles embodied in the
            comparative negligence statute would apply if the
            claim arose because the ski area operator breached one
            of its defined statutory duties.

            [Ibid. (citations omitted).]

      Thus, the Ski Act bars any suit arising from the inherent risk of skiing or

any related activity. Only where a skier can demonstrate violation of one of

the operator's narrowly-defined statutory duties may a suit proceed. The Ski

Act relieves operators from liability for injuries caused by the "inherent" risks

of skiing. N.J.S.A. 5:13-5. "In the skiing context, an inherent risk is one that

cannot be removed through the exercise of due care if the sport is to be




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enjoyed," such as "the steepness of the mountain itself." Brett, 144 N.J. at

499-500.

       The Ski Act limits the liability of operators to breaches of the duties

outlined in N.J.S.A. 5:13-3(a). Those duties require the operator to:

            (1) Establish and post a system generally identifying
            slopes and trails and designating relative degrees of
            difficulty thereof; and to make generally available to
            skiers information in the form of trail maps or trail
            reports.

            (2) Make generally available either by oral or written
            report or otherwise, information concerning the daily
            conditions of the slopes and trails.
            (3) Remove as soon as practicable obvious, man-made
            hazards.

            [Ibid. (emphasis added).]

Thus an operator is not liable for injuries caused by: (1) "[a]brupt changes in

weather conditions"; (2) "[h]azards normally associated with the varying

conditions of snow"; or (3) equipment and facilities "necessary for the

ordinary operation of the ski area" that are clearly marked and are not obvious,

man-made hazards that can be practicably removed. N.J.S.A. 5:13-3(b)(1) to

(3).

       An operator's liability pursuant to N.J.S.A. 5:13-3(b)(3) is further

circumscribed unless it knew or should have known of the enumerated

violation and it had a reasonable time to correct it. N.J.S.A. 5:13-3(d) ("No



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                                        12
operator shall be liable . . . unless said operator has knowledge of the failure to

comply with the duty imposed by this section or unless said operator should

have reasonably known of such condition and having such knowledge has had

a reasonable time in which to correct any condition or comply with any duty

set forth in this section."). Thus, the Ski Act bars actions for injuries that are

inherent to the sport or caused by equipment or facilities necessary for the

ordinary operation of the ski area, unless the operator has actual or

constructive knowledge of an obvious, man-made hazard that could have been

practicably removed and reasonable opportunity to cure it.

      The duty to remove "obvious, man-made hazards" is simply a

restatement of the "proposition that operators have no duty with regard to

inherent risks of skiing." Brett, 144 N.J. at 500. In using the phrase "obvious,

man-made hazards," the Legislature "cast[] a wide net." Ibid. "[O]bvious,

man-made hazards" include man-made alterations to the natural environment:

            The placement of ski-lift towers, the use of artificial
            snow, and the layout of the trails all are man-made
            contributions to the skiing environment. Thus, for
            example, a jury could reasonably find that a tree left
            standing in the middle of a blind corner on a steep trail
            was an "obvious, man-made hazard," but that a tree
            was an inherent risk when it stood at the edge of a
            broad and straight fairway. . . .

                  . . . Some man-made features of a ski slope are
            as inherent to the sport of skiing as the steepness of
            the mountain itself. One cannot have skiing without,


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              for example, towers to support the ski lift. A danger
              that may feasibly be removed, however, is not an
              inherent danger. A jury might properly find that a ski-
              lift tower placed where skiers might be expected to
              crash into it is a non-inherent, man-made risk if it
              could have been placed in a safer location.

              [Id. at 500-01.]
The existence of an "obvious, man-made hazard" is generally a jury question.

Id. at 505.

      The Act also enumerates duties applicable to skiers, see N.J.S.A. 5:13-4,

such as the duty to control their speed and remain on designated trails,

N.J.S.A. 5:13-4(c), (f).

                                             B.

      At issue before the trial court was whether snow tubers are included in

the definition of "skiers" as set forth in the statute because, where the Ski Act

applies, it completely "displace[s] the common law with regard to the

statutorily defined parties." Brett, 144 N.J. at 502. The Ski Act's "codification

of rights and remedies applies only between parties defined as skiers or ski -

area operators." Id. at 496.

      "Skier" is defined as "a person utilizing the ski area for recreational

purposes such as skiing or operating toboggans, sleds or similar vehicles, and

including anyone accompanying the person." N.J.S.A. 5:13-2(c) (emphasis

added). "Operator" is defined as "a person or entity who owns, manages,


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controls or directs the operation of an area where individuals come to ski,

whether alpine, touring or otherwise, or operate skimobiles, toboggans, sleds

or similar vehicles and pay money or tender other valuable consideration for

the privilege of participating in said activities." N.J.S.A. 5:13-2(a) (emphasis

added).   "Ski area" is defined as including "all of the real and personal

property, under the control of the operator . . . including but not limited to all

passenger tramways, designated trails, slopes and other areas utilized for

skiing, operating toboggans, sleds, or similar vehicles during the skiing

season." N.J.S.A. 5:13-2(b) (emphasis added).

      We conclude a snow tuber is included in the definition of "skier" within

the Ski Act because a snow tube is a "similar vehicle" within the meaning of

those statutory definitions.     More specifically, snow tubes are "similar

vehicles" within the meaning of the Ski Act's definitions because they are used

for a snow-based recreational activity, as are toboggans, skis, and sleds. The

term "similar vehicle" in N.J.S.A. 5:13-2(a) to (c) is preceded by other winter

activities—skiing (alpine or touring), tobogganing, sledding, and operating

skimobiles—all of which involve sliding across snow-covered terrain and are

subject to the same variables as traditional skiing and its attendant risks ,

including surface issues, ice, pitch, ruts, speed congestion, run outs, and

weather. Snow tubing fits comfortably into this class of activities. In fact,



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snow tubing can easily be classified as a subcategory of sledding or

tobogganing.

      We would reach the same conclusion even if the word "similar" were

omitted from the Ski Act's definitions.      According to the ejusdem generis

canon of interpretation, "where general words follow specific words in an

enumeration . . . the general words are construed to embrace only objects

similar in nature to those objects enumerated by the preceding specific words."

Williams v. N.J. State Parole Bd., 255 N.J. 36, 53 (2023) (emphasis added)

(quoting 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory

Construction § 47:17, at 364-68 (7th ed. 2022)).         Here, the general word

"vehicle" is preceded by a specific enumeration of winter activities —

tobogganing, sledding, skiing, etc. If the ejusdem generis canon is applied, the

word "vehicle" would not be construed broadly to include cars or airplanes, but

only to embrace the objects "similar in nature . . . [to] the preceding specific

words." Ibid. Thus, "vehicle" would mean a device used for traversing snow-

covered terrain. Such an interpretation encompasses snow tubes.

      Contrary to the trial court's ruling, the participant's ability to control the

vehicle is not dispositive of whether the activity is included in the statute.

Although portions of the Ski Act impose certain duties on skiers, such as the

duty to control their speed and remain on designated trails, N.J.S.A. 5:13 -4(c),



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(f), we are required to read the legislation as a whole. See W.S. v. Hildreth,

252 N.J. 506, 518 (2023) ("Pursuant to traditional rules of statutory

construction, 'each part or section should be construed in connection with

every other part or section to provide a harmonious whole.'" (quoting In re

Civil Commitment of W.W., 245 N.J. 438, 449 (2021))).          Nothing in the

statute limits the types of toboggans, sleds, or "similar vehicles" to those

whose speed may be controlled.

      Aside from the plain language of the statutory definitions, when we

consider the Ski Act as a whole, we easily conclude that the Legislature

intended the Act to apply to snow tubing. The Ski Act's statement of purpose

provides "that the sport of skiing and other ski area activities involve risks

which must be borne by those who engage in such activities and which are

essentially impractical or impossible for the ski area operator to eliminate."

N.J.S.A. 5:13-1(b).

      The inherent risks the Ski Act addresses are relevant to snow tubing as

much as they are to tobogganing, skiing, or sledding. Snow tubing involves

sliding downhill at high speeds and sometimes falling out of the snow tube.

As is the case with skiing or sledding, these are wholly foreseeable risks that

cannot be eliminated without taking the enjoyment out of the activity. See

Brett, 144 N.J. at 499 ("[A]n inherent risk is one that cannot be removed



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through the exercise of due care if the sport is to be enjoyed."). Additionally,

snow tubers, like skiers, tobogganers, and sledders, may be injured by

"[a]brupt changes in weather conditions" and "[h]azards normally associated

with the varying conditions of snow or undercover." N.J.S.A. 5:13 -3(b)(1) to

(2).

       In passing the Ski Act, the Legislature was concerned with the increased

cost of insurance for ski operators. See Assemb. Judiciary, L., Pub. Safety &

Defense Comm. Statement to A. 1650, at 1. The rationale of the Ski Act—

reducing those costs by eliminating an operator's liability for inherent risks —is

equally applicable to snow tubing and it has been extended previously to cover

other snow-sport activities such as snowboarding. See also Murray v. Great

Gorge Resort, Inc., 360 N.J. Super. 395, 399-400 (Law Div. 2003) (concluding

snowboarders are covered by the Ski Act because they are "exposed to the

identical risks as traditional down-hill skiers," and "it would frustrate . . . the

underlying goals of the Ski Statute to exclude snowboarding.").

       Plaintiff asks us to remove the activity of snow tubing from the purview

of the Ski Act. We decline to do so, and we disagree with plaintiff's assertion

that snow tubing "is a fundamentally different activity than sledding or skiing"

because a snow tuber "has no control over the speed or course nor any

mechanical br[aking] method."



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      According to plaintiff, it would be illogical to interpret the Ski Act to

apply to snow tubing when other provisions of the Act require "skier[s] . . .

[to] maintain control of [their] speed and course at all times." See N.J.S.A.

5:13-4(c). We find this argument unpersuasive. First, while snow tubes lack

braking or steering mechanisms, this fact does not make snow tubes

"fundamentally different" than most sleds or toboggans, which also lack those

mechanisms. Second, even though most snow tubes lack mechanical features

allowing them to be steered or braked, it remains possible for a rider to control

the speed and direction of the snow tube as it moves downhill. To control

speed, riders may drag one or both of their feet on the snow. To control

direction, riders may shift their weight, push off the berms on either side of the

lane, or descend headfirst to accelerate. In fact, the signs posted at Campgaw

directed snow tubers to drag their feet "to maintain direction and stability."

Therefore, the claim that snow tubes are so uncontrollable as to be

"fundamentally different" than sleds or toboggans is belied by the facts.

      We conclude the Ski Act applies to snow tubing. Because the Ski Act

displaces the common law when applicable, see Brett, 144 N.J. at 502, we

reverse the trial court's denial of summary judgment with respect to plaintiff's

common law claims (counts one, two, and five). The common law claims are




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extinguished as the Ski Act provides the sole means of asserting liability

against defendant.

                                       C.

      Having ascertained the Ski Act applies, it imposes limited, enumerated

duties on the operator, including the duty to "[r]emove as soon as practicable

obvious, man-made hazards." N.J.S.A. 5:13-3(a)(3).

      Generally, whether a deceleration mat is part of equipment and facilities

"necessary for the ordinary operation of the ski area," which is clearly marked,

and is not an "obvious, man-made hazard[]" that can be practicably removed,

is a question of fact. See Brett, 144 N.J. at 505 ("[W]e believe that the trial

court properly left to the jury the question of whether an obvious, man -made

hazard existed, given the fact-intensive nature of this issue and its relation to

the balancing of fault."). However, in this case, plaintiff has not presented any

genuine issue of material fact to demonstrate the deceleration mat, either as

presented at the area or in a "bunched up" condition as plaintiff alleged, was an

"obvious man-made hazard" requiring removal pursuant to the statute.

Additionally, plaintiff has not shown either that the mat was unnecessary for

the ordinary operation of the area or inadequately marked.

      Specifically, plaintiff's expert refused to opine as to the applicability of

Ski Act at his deposition because of his legal conclusion that the Act did not



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apply to plaintiff's use of a snow tube. As a result, Campgaw's expert opinion,

that deceleration mats are equipment "necessary for the ordinary operation of

the ski area" and were clearly visible, is uncontroverted. The trial court ruled

plaintiff's expert was barred from addressing any aspect of the Ski Act.

Moreover, even if he had been allowed to opine, plaintiff's expert

acknowledged deceleration mats are ordinary equipment necessary for snow

tubing operations.

      And, if we assume, at this summary judgment stage, plaintiff may give

lay testimony to a jury positing deceleration mats are an obvious, man-made

hazard, plaintiff still cannot set forth any evidence the mat was bunched up

before he began his last, fateful run that day sufficient to defeat defendant's

motion for summary judgment. Defendant's duty to remove man-made hazards

is limited by actual or constructive knowledge of the hazardous condition.

N.J.S.A. 5:13-3(d). Notice and a reasonable opportunity to cure are essential

components to plaintiff's claim that defendant violated one of the duties listed

in N.J.S.A. 5:13-3(a). The statute codified the common law in this respect.

See Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245, 257 (2015) ("[A]n

invitee seeking to hold a business proprietor liable in negligence 'must prove,

as an element of the cause of action, that the defendant had actual or




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constructive knowledge of the dangerous condition that caused the accident.'"

(quoting Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003))).

         At his deposition, plaintiff testified the bunched-up mat only became

visible after he started descending the slope.             According to Mitchell's

testimony, Campgaw's employees were positioned on the top and bottom of the

hill and communicated with radios to make sure the run was clear before

sending the next snow tuber down the designated lane. Mitchell stated in his

deposition that employees would communicate about hazards in the tubing

lanes:

               Q. So a person from the top of the hill, the top
               attendant can look at the mats at the bottom of the hill
               and walkie-talkie to someone to the bottom that there's
               a problem with the mat; is that fair?

               A. Yes.

               Q. That could have been done if there was an issue?
               A. All the time, eyes always on the hill.

         And in the event of a hazard in one of the tubing lanes, Mitchell stated,

"We always shut down the lanes and make the repairs known. Everything is

visualized and walkie-talkied that all lanes are clear, go ahead and send it."

Plaintiff cannot establish actual notice sufficient to defeat summary judgment.

         Constructive notice is also lacking. Although in the two seasons before

plaintiff's accident there were over forty-five incidents in which snow tubers


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either flipped over or were thrown off their tubes after running into

deceleration mats, there was no evidence presented that these accidents were

caused by mats bunching, or regarding the general propensity of these mats to

bunch, or whether steps could have reasonably been taken to keep the mats

from bunching, or whether other facilities utilize different equipment to

facilitate deceleration and prevent bunching-related incidents. Therefore, even

assuming, as we must, the deceleration mat was bunched up, plaintiff has not

presented any evidence of defendant's actual or constructive notice that the mat

was bunched up before he began his run sufficient to defeat defendant's motion

for summary judgment.

      Finally, we briefly address the argument that the exculpatory agreement

bars plaintiff's claim. Because the Ski Act applies, an agreement attempting to

waive the ski operator's statutorily imposed duties is against public policy and

thus unenforceable—which defendant conceded before the trial court.          See

Hojnowski v. Vans Skate Park, 187 N.J. 323, 333 (2006).

      Reversed. We remand for an order dismissing plaintiff's claims with

prejudice. We do not retain jurisdiction.




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