Martin McGuinniss sued Ski Campgaw Management LLC after he was injured on December 29, 2020, while snow tubing at Campgaw Mountain Ski Area in Bergen County. On his final run of the day, McGuinniss descended the slope lying flat on his stomach. He testified that he struck a deceleration mat that was bunched up, was catapulted off his tube, and landed on his left shoulder, sustaining a comminuted fracture of the mid-shaft clavicle. He filed suit alleging common-law negligence and violations of the Ski Act, N.J.S.A. 5:13-1 to -11.
The trial court sided with McGuinniss on the threshold statutory question, ruling the Ski Act inapplicable to snow tubing because the activity was "fundamentally different" from skiing or sledding — there is no steering mechanism and no ability to control speed. The Appellate Division, in an opinion by Judge Berdote Byrne joined by Judges Smith and Jablonski, reversed. The case reached the panel on a summary remand from the New Jersey Supreme Court, which granted Campgaw's motion for leave to appeal after the Appellate Division initially denied it.
The court held that a snow tube is a "similar vehicle" within the Ski Act's definitions of "skier," "operator," and "ski area," each of which expressly covers persons using toboggans, sleds, or similar vehicles. The panel reasoned that snow tubing, like sledding and tobogganing, involves sliding downhill across snow-covered terrain and exposes participants to the same variables — surface conditions, ice, pitch, ruts, speed, and weather — that the Legislature targeted when it enacted the Ski Act in response to the Vermont Supreme Court's decision in Sunday v. Stratton Corp. The court also invoked the ejusdem generis canon, noting that even without the word "similar," the general term "vehicle" following a specific enumeration of winter-snow activities would be construed to cover only devices used for traversing snow-covered terrain. The panel further rejected the argument that a snow tuber's inability to brake or steer made the activity categorically different, observing that most sleds and toboggans also lack those mechanisms, and that riders can in fact influence speed and direction by dragging feet or shifting weight.
Because the Ski Act displaces the common law when it applies, the court reversed the denial of summary judgment on McGuinniss's common-law negligence counts. On the statutory claim, the court held that McGuinniss could not survive summary judgment on the question of notice. The Ski Act limits operator liability to breaches of enumerated duties and, under N.J.S.A. 5:13-3(d), bars suit unless the operator had actual or constructive knowledge of the condition and a reasonable time to correct it. Campgaw's uncontroverted expert testimony established that deceleration mats are equipment necessary for the ordinary operation of the area. McGuinniss's own expert declined to opine on the Ski Act, having concluded it did not apply to snow tubing, and was separately barred by the trial court from addressing the statute at all. On constructive notice, the court noted that while discovery revealed forty-five incidents involving snow tubers and deceleration mats over the two prior seasons, no party presented evidence that any of those incidents involved a bunched mat, the general propensity of mats to bunch, 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.
The court also addressed the pre-injury release McGuinniss signed, which acknowledged snow tubing as an inherently dangerous activity and included a covenant not to sue. Because the Ski Act applies, the panel noted — consistent with Campgaw's own concession below — that any agreement purporting to waive the operator's statutorily imposed duties is against public policy and unenforceable under Hojnowski v. Vans Skate Park.
The Appellate Division reversed and remanded for entry of an order dismissing McGuinniss's claims with prejudice, declining to retain jurisdiction.