Court Rejects Lawsuit Over Man's Drowning At Jenkinson's

POINT PLEASANT BEACH, NJ — A New Jersey appellate court panel has upheld a judge's decision dismissing a lawsuit filed against Jenkinson's in the 2020 offseason drowning of an Ocean County man.

The ruling, issued Friday by Appellate Judges Jack Sabatino, Kay Walcott-Henderson and

Sabatino, Walcott-Henderson and Stanley L. Bergman Jr., ruled that Jenkinson's was not liable in the death of Anthony Timpanaro, 69, of Manchester, who drowned when he was knocked down and pulled into the ocean by a wave in September 2020.

Timpanaro's family had argued in their lawsuit, filed in May 2021, that Jenkinson's had not done enough to warn people about dangerous surf and that the company should have locked the gates to the beach access points.

Jenkinson's did just that in September 2023, sparking a battle with the New Jersey Department of Environmental Protection, which requires entities to maintain some access to the beach for recreation purposes except in cases where there are hurricanes or other severe weather warnings that necessitate closing the beaches for public safety reasons. That access is guaranteed under the Public Trust Doctrine, which says the land between the mean high tide line and the water belongs to the public, not individual owners.

According to the appellate ruling, Timpanaro's family testified that there were signs in place saying no swimming was permitted and that they were told by a parking attendant at Jenkinson's that there was no swimming allowed but that people could "go on the beach and walk and play," according to ruling.

Because it was after Labor Day weekend there were no lifeguards on duty, which is the standard up and down the Jersey Shore.

The trial judge "rejected plaintiffs' argument they were business invitees to the ocean and defendants had a duty to render the premises reasonably safe, concluding the ocean cannot be made safe," the appellate ruling said.

The trial court judge also said that because there were no storm warnings in effect from the National Weather Service that would have required Jenkinson's to restrict public access to the beach, the claims by the Timpanaro family that Jenkinson's should have blocked them from going on the sand "are unsubstantiated."

"The record is clear: there were no hurricane watches or warnings declared by NOAA and as the court noted, (Jenkinson's) premises were never identified as being part of a coastal flood warning area, nor had the Governor issued a state of emergency for storms or flooding," the appellate ruling said. "Thus, plaintiffs cannot establish the presence of any conditions triggering the closure of defendants' beaches."

The trial judge also ruled and the appellate court upheld that Jenkinson's signs saying "no swimming" — which the Timpanaros said they had seen — were a sufficient warning, and that Anthony Timpanaro rolled up his pants, took off his shoes and approached the water's edge of his choice; he 'clearly put himself within reach of the ocean and its waves."

"Plaintiffs therefore cannot prevail as a matter of law because they cannot prove defendants breached a duty of care," the trial judge said, and the appellate court upheld.

"Plaintiffs were unequivocally aware that swimming was prohibited and that no lifeguards were present. As the court astutely observed, '[t]hese warnings do not explicitly tell potential swimmers that the waters are dangerous because a reasonable person can recognize that the ocean is dangerous twelve months a year.' Nevertheless, the warnings unmistakably convey to beachgoers that no lifeguards were on duty should they encounter difficulties in the water," the appellate ruling said.

In the wake of the Timpanaros' lawsuit, Jenkinson's closed all beach access points in the offseason in 2023, infuriating visitors and setting off a fight with the NJDEP. The NJDEP later ordered Jenkinson's to restore access, under the Public Trust Doctrine.

Jenkinson's reopened the beaches three weeks later.

In 2019, the Public Trust Doctrine was codified in state law as N.J.S.A. 13:1D-150 (b), and says that while the public has the right to access tidal waters and their adjoining shorelines, the right is not unlimited, and that access can be limited by "prohibitions on surfing immediately after a major storm, nighttime swimming and other similar activities," the appellate ruling said.