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. 

NOT FOR PUBLICATION WITHOUT THE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.
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A-3282-18T3

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 plaintiffs

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 KellyAnn 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 
10 A-3282-18T3

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 
11 A-3282-18T3

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)).
12 A-3282-18T3

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
13 A-3282-18T3

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 
14 A-3282-18T3

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 
15 A-3282-18T3

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 are 

separate from the golf holes themselves.
17 A-3282-18T3

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 
18 A-3282-18T3

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 than 

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.