An update on New Jersey’s 90-day accident reporting notice statute
by Lary I. Zucker, Esq.
 Last year I defended two amusement park negligence lawsuits in which my client’s first notice of the accident was receipt of the summons and complaint years after the accident occurred. A Superior Court Judge dismissed both cases because the plaintiffs were unable to prove they complied with a precondition to filing suit against an amusement park that is unique to New Jersey; the plaintiffs were unable to prove they reported the accident to the park within 90 days of the occurrence.
In dismissing these two lawsuits, the court was relying on a section of the New Jersey Carnival-Amusement Ride Safety Act that encourages prompt reporting of accidents by patrons and spectators in amusement parks, waterparks, and carnivals operating in New Jersey. In 1992, the New Jersey Legislature amended the act to require injured patrons to provide written notice of an accident within 90 days of the occurrence. The public policy behind this legislation recognized that the New Jersey amusement industry is a summer business, and when a patron accident occurs, the amusement park needs to receive prompt notice of the accident so statements can be secured from seasonal employees before they leave the area. The New Jersey Amusement Association, which strongly supported the legislation, argued that without prompt notification of an accident, amusement parks would not be able to investigate incidents while the evidence is still fresh, thereby hampering their ability to develop an effective defense.
The law provides two exceptions to the 90-day-notice requirement. First, the law does not apply to accidents and injuries reported to the park on the day of the occurrence. In addition, the 90-day notice period may be extended to permit filing a late notice within one year of the occurrence, but that late notice may only be permitted by a judge based on proof demonstrating “sufficient reason” for failing to file a timely report and upon a finding by the court that the park owner is not “substantially prejudiced” by the late notice.
The law requires amusement park operators to post written notices of the 90-day-notice requirement. Indeed, the law provides that the amusement park operator may not claim the protection of the 90-day reporting requirement unless operators have posted visible notices of the reporting requirements in English and one other language in at least five different locations in the park, including each entrance and exit, each place designated for receiving reports of accidents, and each place designated as a first aid station.
When the requirement was initially made, some operators were concerned that posting these written notices would encourage patrons to file claims, but that has not proven to be the case. Thanks to this law, amusement park operators in New Jersey are no longer helpless when faced with unreported accidents and “no notice” lawsuits.
The most common excuse for not filing a timely written claim is that the patron did not see the notice signs before he left the park on the day of the accident. Last year, one patron claimed the signs must not have been conspicuously posted because he walked around the park for several hours after his accident and did not notice any sign. The court declined the plaintiff’s invitation to adopt a subjective standard for conspicuousness and ruled that an amusement park’s compliance with the posting requirements (number of signs and location) is all that has to be proved.
Plaintiffs’ attorneys have also tried to avoid operation of the act by sending written notices with made-up accident dates within the 90-day period. Courts generally reject these attempts to mislead a park once the true accident date is established.
To the best of my knowledge, New Jersey is the only state that requires a 90-day written notice as a precondition for filing a lawsuit against an amusement park. However, the public policy goal of protecting a seasonal business from frivolous lawsuits may apply to other states and jurisdictions as well. The New Jersey 90-Day Notice Statute is found at N.J.S.A. 5:3-57.
Lary I. Zucker is counsel to the New Jersey Amusement Association and the author of the 90-day-notice statute. He is a founding member of IALDA, Inc. and partner in Marshall Dennehey Warner Coleman & Coggins, where he serves as chair of the amusement sports and entertainment practice group. His e-mail is lizucker@mdwcg.com.
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