S1709

An Act concerning liability for injury or death occurring at certain beaches, and supplementing Title 2A of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. As used in P.L. , c. (C. ) (pending before the Legislature as this bill):

“Attendant, on-duty lifeguard” means an appropriately trained and credentialed individual who is stationed, on-duty, and physically present at a privately owned beach premises for certain specified hours of the day, and who is required, while so stationed, present, and on-duty, to actively monitor the safety of visitors to the guarded beach area and to provide immediate, on-the-scene rescue, first aid, and lifesaving services, as and when necessary to prevent and respond to injuries occurring on or within the guarded beach area or the tidal waters adjacent thereto.

“Beach” means the same as that term is defined by section 3 of P.L.1973, c.185 (C.13:19-3).

“Guarded” means that an attendant, on-duty lifeguard is on-site, is actively monitoring the safety of visitors, and is available to respond to injuries occurring, at a privately owned beach premises, or within a designated and demarked portion thereof.

“Guarded beach area” means that designated and demarked portion of a privately owned beach premises, or the entirety of such premises, as the case may be, which is covered by, and is situated within the defined boundaries of, the assigned duty station of an attendant, on-duty lifeguard, during any period of time in which the attendant, on-duty lifeguard is on-site and available for duty.

“Private beach owner or lessee” or “beach owner or lessee” means the private individual or entity which owns or leases a beach premises and is subject to potential liability for injuries occurring thereon.

“Privately owned beach premises” or “beach premises” means that portion of tidally flowed land, up to the mean high water line, and that portion of the dry, sandy beach area, landward of such mean high water line, which is owned or leased by a private individual or entity, and which is accessible and usable, by the general public, for recreation, navigation, commerce, or fishing purposes.

“Sport and recreational activities” means the same as that term is defined by section 1 of P.L.1968, c.73 (C.2A:42A-2).

“Unguarded” means that an attendant, on-duty lifeguard is not available, on-site, to monitor the safety of visitors, or to respond to injuries occurring, at a privately owned beach premises, or within a particular section or part of such beach premises, regardless of whether such beach premises, or the relevant portion thereof where injury or death occurs, either was or will be guarded by an attendant, on-duty lifeguard at any other time of day or on any other calendar date.

“Unguarded beach area” means any portion of a privately owned beach premises, or the entirety of such premises, as the case may be, where or whenever there is no attendant, on-duty lifeguard available, on-site, to monitor the safety of visitors and respond to injuries occurring on the premises or relevant portion thereof, as the case may be, and on or in the tidal waters adjacent thereto. “Unguarded beach area” includes any portion of a privately owned beach premises which is situated outside of the designated and demarked boundaries of a guarded beach area; and any guarded beach area, during any period of time in which the ordinarily attendant, on-duty lifeguard is not on-site and available for duty.

2. a. A private beach owner or lessee, who allows, or is required by the State to provide, public access to the beach premises for sport and recreational activities, shall have no duty:

(1) to keep the beach premises safe for entry or use, by members of the public, for sport and recreational activities, regardless of whether the beach premises is maintained in its natural condition, is improved, or is used as part of a commercial enterprise; or

(2) during any period of time in which the beach premises, or any portion thereof, is unguarded, to post or maintain signs or notices warning visitors to the unguarded beach area of the potential or actual dangers that may exist or arise as a result of the natural conditions of the beach or adjacent tidal waters, or due to the use of any structure or improvement, or the engagement in sport and recreational activities, thereon or therein.

b. A private beach owner or lessee who affirmatively grants permission to members of the public to access and use the beach premises and adjacent tidal waters for sport and recreational activities or purposes, does not thereby:

(1) extend any assurance that the beach premises, or the adjacent ocean or other adjacent tidal waters, are safe for such sport and recreational activities or purposes;

(2) effectively constitute any member of the public to whom such permission is granted as an invitee or a licensee to whom a duty of care is owed; or

(3) assume responsibility or incur liability for any injury to person or property which is caused by an action undertaken by any member of the public who has been granted permission to access the beach premises.

c. Regardless of whether any public warning or notice of potential or actual dangers is provided, a private beach owner or lessee shall not be liable to any person:

(1) for injury or death resulting or caused thereto when accessing the beach premises or adjacent tidal waters for sport and recreational activities at any time when the beach premises, or the relevant portion thereof where injury or death occurs, is unguarded; or

(2) for injury or death resulting or caused thereto when accessing the beach premises or adjacent tidal waters for sport and recreational activities at any time when the beach premises, or the relevant portion thereof where injury or death occurs, is guarded, except in cases where the injury or death results from:

(a) the willful or malicious failure, either by an attendant, on-duty lifeguard or by the beach owner or lessee, to guard or warn against a dangerous or potentially dangerous condition, use, structure, or activity, including, but not limited to, a dangerous or potentially dangerous condition of the weather, ocean, tides, or currents, or a dangerous or potentially dangerous sport or recreational activity, which is present or occurring at the guarded beach area or on or in the adjacent tidal waters;

(b) acts of negligence, either on the part of the attendant, on-duty lifeguard or on the part of the beach owner or lessee, where permission to engage in sport and recreational activities on the beach premises was granted for a consideration other than the consideration, if any, paid to the owner or lessee by the State; or

(c) acts of gross negligence, on the part of the beach owner or lessee, where the injured party has entered upon or is using the guarded beach area or adjacent tidal waters for a use or purpose unrelated to public access purposes.

3. This act shall take effect immediately.

STATEMENT

This bill would clarify the duties and liabilities of private beach owners and lessees with respect to injuries suffered by beachgoers, either while on the beach or while on or in the adjacent ocean or other adjacent tidal waters. Specifically, the bill would provide that any private beach owner or lessee who allows, or who is required by the State to provide, public access to the beach premises for sport and recreational activities will have no duty:

The bill would further provide that, regardless of whether any public warning or notice of potential or actual dangers is provided, a private beach owner or lessee will not be liable to any person for injury or death resulting or caused thereto when such person is accessing the beach premises or the adjacent tidal waters for sport and recreational purposes at any time when the beach premises, or the relevant portion thereof where injury or death occurs, is unguarded.

An “unguarded beach area” is defined, by the bill, to mean any portion of privately owned beach premises, or the entirety of such premises, as the case may be, where or whenever there is no attendant, on-duty lifeguard available, on-site, to monitor the safety of visitors and respond to injuries occurring on the premises or relevant portion thereof, as the case may be, and on or in the tidal waters adjacent thereto. “Unguarded beach area” would include any portion of a privately owned beach premises which is situated outside of the designated and demarked boundaries of a guarded beach area; and any guarded beach area, during any period of time in which the ordinarily attendant, on-duty lifeguard is not on-site and available for duty.

The bill would also provide a private beach owner with immunity from liability for injury or death resulting or caused to a person who is accessing the beach premises or adjacent tidal waters for sport and recreational purposes at any time of day when the beach premises, or the relevant portion thereof where injury or death occurs, is guarded by an attendant, on-duty lifeguard, except in those cases where the injury or death has resulted from:

(1) the willful or malicious failure, either by the attendant, on-duty lifeguard or by the beach owner or lessee, to guard or warn against a dangerous or potentially dangerous condition, use, structure, or activity, including, but not limited to, a dangerous or potentially dangerous weather, ocean, tidal, or current condition, or a dangerous or potentially dangerous sport or recreational activity, which is present or occurring at the guarded beach area or in the adjacent tidal waters;

(2) acts of negligence, either on the part of the attendant lifeguard or on the part of the beach owner or lessee, where permission to engage in sport and recreational activities on the beach premises was granted for a consideration other than the consideration, if any, paid to the owner or lessee by the State; or

(3) acts of gross negligence, on the part of the beach owner or lessee, where the injured party has entered upon or is using the guarded beach area or adjacent tidal waters for a use or purpose unrelated to public access purposes.

The immunities and associated duty of care exemptions, which would be applied to private beach owners and lessees under the bill,
are consistent with existing limitations on liability and exemptions from duties of care that are currently applicable, under Title 2A of the New Jersey Statutes, to the owners of various agricultural, horticultural, conserved, and other environmentally regulated lands, whenever a member of the public, who is permitted or required to have access such lands for sport and recreational purposes, is injured or dies either as a result of the natural or improved conditions of such lands or as a result of engaging in sport or recreational activities thereon.