*1 his at which he can be and be hearing present represented by counsel. assigned Juvenile and Domestic' Relations judgments
Court are reversed and the cases are remanded to that court for further consistent with this proceedings opinion. reversal and remandment —Chief
For Justice Weintbaub, and Justices Jacobs, Pbancis, Pboctob, Hall, Schettino and Haneman —7.
For affirmance —None. GOLDBERG, PLAINTIFF-RESPONDENT, HARRY v. HOUSING NEWARK, THE AUTHORITY OF CITY OF A BODY POLI- JERSEY, TIC AND CORPORATE OF NEW DEFENDANT- APPELLANT. Argued September 10, 1962 Decided December 1962. *2 (Messrs. Mr. for Gaffey appellant John cause argued Schreiber, Webb, & Mr. Gaffey Sidney M. attorneys; counsel). B. argued respondent
Mr. Jacobs cause for Seymour Jacobs, & (Messrs. Balk attorneys).
Mr. filed curiae Samuel J. Davidson a brief amicus on be- half of the New Association of Authorities. Jersey Housing by
The the court delivered opinion milk delivering C. J. While tenant Weintraub, at was beaten housing project, plaintiff defendant’s p. The attack 1:30 robbed two men. occurred about m. in a self-service elevator. Whether the passenger assailants tenants, tenants, intruders, were is not guests known. The found and the Division jury Appellate af firmed. 70 N. J. We (1961). Super. certifica granted N. J. 233 tion. 36 (1961).
Plaintiff thesis that defendant prevailed upon single protection.1 had a provide police Defendant is a City created public corporation Newark under the Local Authorities Law J. Housing (N. 55 :14A-1 S. A. et It number of seq.). developed projects. acres, The one here involved 19.15 embraces with apart- houses, ment 12 stories, each of offering accommodations for 1,458 families. The residents at the time here involved num- 5,300 6,000. bered between Appellate Division said : (70 255) Super., p. defendant, housing hold “We since it created and maintained a which, project size, physical composition because of its beyond and method of operation, pale regular municipal police surveillance, yet susceptible because of these same factors was to criminal *3 activities, provide protection Hayes was under a to such in the
project necessary circumstances, question as was under the and that a complaint charged negligence general The in terms. The issue particularized pretrial conference, was as our rules direct. (a) (1) 1(b) (2) (7). provide police R.R. 4:29-1 and Failure to protection negligence specified pretrial was the sole claim of in the order, pretrial order, plaintiff’s opening jury, plaintiff’s amended to the expansive requests charge, charge jury. and the trial court’s to the summation, plaintiff pressed theme, In argued the same but addition : “* * they big apartment they What do do in a house when lying hallways don’t want these drifters in there in the with knives pockets, you in their They which I read to in all these exhibits? lock give keys. They the doors push the tenants have a call box and you in, they the button and we will let or else have a doorman outside right, in the more outside, exclusive ones. All don’t have a doorman put doors, give locks badge authorized tradesmen either a or a key get in.” excerpt acknowledge We read this that doormen are furnished only apartment houses, the “more exclusive” rather than a claim negligent furnishing that defendant was Surely in not them here. upon any case was not tried such thesis. Nor was the case tried on theory installed, that locks should have been and hence there was respect practice no evidence with feasibility standard or utility suggestion. any event, police-protection since the given jury, judgment thesis was upheld cannot be if that Jersey thesis was Coop Co., erroneous. Simmel v. New 28 N. J. ; (1958) Jersey 13-14 Light Guzzi v. Co., Central Power & 12 N. J. (1953). 259-60 pro jury whether as to presented consideration for was of fact adequate. guards police private were by for made visions proximate dereliction, any, cause was the if whether defendant’s As to suffered, again damage for the injuries plaintiff’s he and the robbery was jury assault whether from evidence decide required prove negligence. was not Plaintiff defendant’s a result place robbery defend have taken would not the assault and that policing protection. supplied better It is axiomatic additional ant Operating v. Willston Crammer a deterrent. have acted as would Cf. 1952).” (App. Inc., Super. Co., N. Div. Division, “a within city the project called Appellate The in terms of population may apt The description city.” isolated The is not project physically in no other sense. but fronts on Each house apartment the neighborhood. from development, another street bisects street and still public bisecting The of it and six south. four north being structures In terms of for traffic, reserved being play. street is closed to houses the apartment force of the police city, access owned apartments from distinguishable are not high-rise is located In fact developers. headquarters private nearby. held defend- Appellate notwithstanding Division nature, be ad- public liability
ant’s its must negligence on the law judged principles, applicable private reached owner of It that conclusion both because property. nature of the that term “proprietary” operation used in this field and under which defend- because statute a legislative ant formed reveals intent the local authorities be on that accountable basis. J. Super., *4 250-253. we agree. Thus far pp.
We cannot however has agree that defendant to think, That furnish police protection. duty, we the dirty is Since statute under which government. it,2 created does not- such impose upon question 2 Housing (N. 55:14A-1, Local In the Authorities Law J. S. A. created, Legislature seq.) et under which defendant was found “insanitary dwelling existed or unsafe there and that accommodations persons accommodations; of low income are forced reside” such persons occupy congested “such are forced overcrowded and
582 whether that can be found obligation upon principles applicable to owner residential private property. We note at once that no statute the owner of empowers residential have a force. Such property police authority has been limited situat granted private very enterprise ions.3 “furn Hence the owner of residential could property ish” to as police if the protection only municipality agreed at the sign special policemen owner’s expense, practice N. rests J. 8. 40 which authorizes seemingly upon A. :47— who shall governing body special policemen appoint not be shall under “the part police force but who be and direction of the chief of See supervision police.” Mularchuk, McAndrew N. 33 J. 172 Caronia v. (1960); Commission, N. Civil Service Super. Div. (App. And, statute, from the it would 1950). wording appear accommodations”; spread dwelling and that such conditions increase disproportionate crime, disease and and “necessitate excessive and expenditures public prevention punishment, for funds crime public safety, public protection, health and and other fire accident private Finding services and facilities.” N. J. 8. A. :14A-2. enterprise expected problem, Legislature cannot be to meet government housing which, authorized local with to create authorities program (42 1401-35), the aid of a federal U. 8. G. A. would §§ * * * provide “decent, sanitary rural” safe and urban or accom- may health, “community, modations which include facilities for recrea- tional, educational, purposes.” N. A. :14A- welfare or othеr J. 8. 3(i). Although foregoing legislative reveals awareness slums breeding places crime, I it no one take contends the statute require operate provide meant to defendant to an armed or fortress department department. its own force fire or health Rather provides only housing projects A. :14A-11 J. S. subject “shall planning, zoning, sanitary building laws, ordi- regulations applicable locality housing nances and which the project is situated.” appointment policemen only Our statutes authorize the specified utilities, :3-38; corpora- railroads and other N. J. 8. A. 48 organized agricultural exhibitions, tions to hold fairs and N. J. 8. A. 4:15-4, 5; exhibitions, of a stud farm owner who holds fairs or 9; 4:15-8, learning, R. 8. and universities and other schools of R. 8. 15:11—16 to 20. *5 subject be not would a so assigned policeman be under would but rather property of of the owner order police.” the chief of and direction supervision “the furnishing liable for not was here held Thus, defendant decision. its own it on provide cannot type protection this, later. Of more
I. must provide protec- party The whether a private question “forsee- recourse merely by for is not solved tion another vir- of crime the commission can foresee ability.” Everyone itself If foreseeability gave time. anywhere any tually others, every for protection provide “police” rise to duty store, manufac- every shop, every residential curtilage, every arms private have patrolled by would plant turing upon occupants And since attack the owner. hijacking foreseeable, would be duty are of motor vehicles also* his for passengers armed every provide protection motorist h> this at all course, Of and the others. none property of palatable. event is
The is not whether criminal question simply take measures to foreseeable, duty but whether exists to ultimately a ques- it. Whether a exists is against guard rela- involves a weighing tion of fairness. inquiry risk, and public the nature of the tionship parties, proposed interest solution. are aware of decision even
We which any approaches result below. A brief reached review of cases to reveals involved our attention has been drawn different they relationships. risks or different 'have a to use a high degree
Common carriers
of care
of their
In Exton v.
protect
persons
patrons.
Central
Co.,
R. R.
N. J. L.
Ct.
affirmed
(Sup.
1898),
o. b.
L.
&
A.
knew
(E.
1899),
railroad
prior
business,
cabmen
scuffling between
but nonetheless did not
deal
eject or оtherwise
with them. Plaintiff was injured
*6
(cid:127)when,
v. West
&
In Skillen
scuffling
Jersey
recurred.
Co.,
R. R.
& A. 1921),
Seashore
96 N. J. L. 492
a
(E.
passen
a
ger
injured by
was
The record showed the con
“spi-tball.”
ductor was 'aware of the
antics of
involved but
schoolboys
did
them.
In
&
nothing
stop
Sandler v. Hudson Manhattan
Co.,
R. R .
99
537,
8
J. Misc.
151
Ct. 1930),
A.
(Sup.
affirmed 108 N.
L.
J.
203
£ A.
a
1931),
(E.
passenger
injured
crush of the
and the issue was
crowd
the suffi
to deal with
ciency
guards
phenomenon of
regular
defendant’s business.
In
v. Wilson Line
Quigley
Massa
chusetts,
77,
338
154 N. E.
Mass.
2d
77 A.
499
L. R. 2d
a
(Sup. Jud. Ct.
a
1958), plaintiff,
vessel,
on
passenger
injured
unprovoked assault
aof
drunken passenger.
bar,
Defendant maintained a
and its guards,
knowing
assailant had already been in another fracas that evening,
failed
him
to restrain
on
In
keep
eye
Neering
him.
Co.,
v.
Illinois
R.
Central
R.
383 Ill.
Another of cases relates to the- group the proprietor aof business operation open public protect his guest from the predictable behavior of In other Williams v. guests. Essex Amusement 133 N. L. Corp., Ct. 1945), (Sup. a plaintiff, attending crowded theatre, was unintentionally n flooredby a running There boy. present. was no usher In Club, Inc., v. 180 Reilly 14 N. J. Div. Super. (App. 1951), at a patrons two bar engaged which led “needling” scuffle which plaintiff, nonparticipant, was pushed failed despite from his stool. bartender to intervene In Crammer v. events of which he was aware. portending Co., Inc., Operating Willston 19 N. J. Div. (App. Super. at a rink 1952), patron two skating unwittingly upset ladies. The young was whether there were sufficient question ushers to which was protect patrons skating from hazardous Newark, in view of the crowd. In Becker v. N. J. City of Div. Super. defendant’s (App. 1962), employee, contrary to rules and to ride a regulations, permitted five-year-old in the locker tricycle room. The lad hit a unintentionally bather. Lee National Baseball Club Mil League *7 waukee, 168, 4 Wis. 2d 89 W. 2d 811 an 1958), N. Ct. (Sup. elderly lady was when a injured number of at a copatrons ball a park scramblеd for foul ball. Defendant had provided ushers, with instructions order their patrons keep to to seats situations, in such and the court found ushers had theretofore proved effective in occasion, On regard. however, this- the usher had left post his to assume prepare to post-game duties on course, field. Of playing none of those cases would support proposition proprietors places such provide must police protection an against intruding thug. Fox, v. Genovay J. Super. Div. (App. 1958), Cf. reversed on other grounds, 29 W. (1959).
In the
a
following cases triable issue was found with respect
to criminal assaults
but
each the basis of liability is foreign
Trustee,
case before
In
&c.,
us.
Lillie
Thompson,
459,
332 U. S.
ated misconduct.” third forms of more serious to commit persons a safe place provide employer of an duty basic was the Also 128, No. Dist. County School Grant In McLeod v. of work. court, 1953), Ct. 2d 360 316, 255 P. (Sup. 2d 42 Wash. al was a complaint of 5 to sustained a vote by some by was carried female student a 12-year-old leged near the gymna unlocked room dark male students into upon placed holding its majority sium and there raped. Toris, that Restatement 320 of the of section principle takes wlm voluntarily to take or who is law required by “One to deprive such as under circumstances custody of another ox to self-protection subject power the other of his normal him, under a to harm likely him to association with persons the conduct of care so control reasonable exercising intentionally harming them from prevent third persons short, In the child other” under there stated. conditions school, and the district a to attend school compelled Der- her from fellow students. Wallace v. protect Ohanian, 2d 18 Cal. Rptr. (1962), Cal. App. child was children’s She was camp. quartered guest She rav house unattended night any employee. an intruder. The defendant knew ished court noted that were laborers and that defendant at migrant working nearby *8 times a The court held defendant had employed parolee. failed “due left exercise care for the of a child in her safety (p. custody” 894). we come to a cases
Finally
group
with
dealing
responsi
bility of
owner of
In Da Rocha
housing
v. New
projects.
York
N.
City Housing
109 Y. S. 2d 263
Ct.
Authority,
(Sup.
affirmed 282
1951),
728,
Div.
Y. S. 2d
App.
(2d
defendant, in a
area
Dept. 1953),
turned
play
provided,
on
a water outlet for the refreshment of
on a
children
hot day,
a
number who ran
thereby attracting
large
in and out of the
A child was struck
a
spray.
by cyclist,
violation
riding
a posted regulation. Liability
grounded
defend
upon
ant’s failure to enforce its own rules and failure to protect
In
v. New
an
Geigel
children in
it set motion.
activity
Ct.
2d 891
York
225 N. Y. S.
City Housing Authority,
(Sup.
reg
a baseball diamond
1962),
utilizing
children laid out
ular
know
Defendant,
walks upon
they painted
bases.
this,
prac
did
to-
ing
stop
remove the bases or
nothing to
tice. A
walk
a
The
by
child
using
player.
injured
court
failure in
consti
found defendant’s
the circumstances
tuted
invitation
an
ball
an
games,
activity dangerous
others in that
New
specific
City
Hansen v.
York
setting.
N. Y.
2d 71
Housing Authority,
Div.
S.
App.
(2d
1947),
child was struck
Dept.
by
play
on
swing
ground
defendant. The
left
provided by
ques
court
open
tion whether
had a
supervise
play
to-
duty
but found a triable
ground,
fact with
question of
respect
conditions.
in Kendall v.
physical
Finally,
Gore Prop
erties, 98 U.
S.
D. C.
The provide police protection is to the foreign history landlord-tenant relationship. the common By law there was neither an implied covenant landlord of the fitness of the premises for the intended use nor responsi in him to maintain the bility leased premises. respect With control, common areas in his his duty was to them keep in a safe reasonably condition. The landlord’s obligation was affected indirectly codes and building was modified by legislation to tenement relating R. houses. 8. :1-1 et seq. Brookchester, See Inc., Michaels v. 26 N. J. 379 (1958). Subject legislation, a modifying landlord offers to lease accommodations which a prospective tenant may false as he chоoses. landlord may offer sundry services, which of course will be reflected in the rental charge, but in the statute, absence of there no to furnish them. Thus a *9 or day a during to doorman provide landlord offer may know such not, and we clock, but he need around apartment more luxurious available only services are The sole average citizen. houses, the reach of beyond ap- attending personnel with respect mandate statutory Act, House the Tenement R. 55 :6-13 of to be S. pears families, “there shall more than six that if there are provides who person, other responsible a housekeeper be janitor, shall have of the house, charge and who shall reside said same, require.” if the board shall so for are with the of landlord liability
There eases dealing if Liability may theft his tenants. exist there property is a within the control property placed failure secure such theft if may And the landlord be liable for landlord. he a thief to entrance to the carelessly apart enables gain Capitol ment tenant. See v. Park Corp., McCappin Div. annotated in 1956), 42 N. J. Super. (App. L. R. But landlord is A. 2d 1289 case holds (1958). no under a duty protection. to provide police
II. as an original We come then whether question have the owner of structures should proposition multi-family said, As we have duty provide police, protection. is one fairness in the of the nature question light such hazard, impact the nature relationship, should not on the interest. We think public reasons! a number of imposed, not the owner of The first reason is that we should find deter for not police is liable property furnishing protection we find he has right criminals unless also invading how we force that end. We do see provide which vest in in view of statutes can find that right *10 government forces, with power police constitute certain exceptions, referred above, owner which do not include the of residential But in the property. if the statutes were not we would way, nonetheless a in find barrier welfare. public The police function is skills and highly specialized, involving training alone can There is no government provide. room for private devices the frontier days. proper is to approach state, if there be doubt any upon subject, of the constituted duty forces to move police wherever need they go, only to detect crime but also to prevent it. is This not to a say that private person shut his may eyes to the fact оf crime and indulge in conduct which aids or invites it. a bailee So automobile who leaves the car aon public street with motor or key the switch running indeed may be liable owner if the vehicle is stolen. But it is else to if something he turns say off the motor and removes the he must key, provide police protection vehicle because it nonetheless may be stolen.
The second consideration is the inevitable vagueness proposed duty. Fairness that a ordinarily man be requires able to ascertain in advance of a jury’s verdict whether the is his and whether he duty has it. To performed which multi- family houses would the duty apply? Would it depend upon so, the number ? If of tenancies can we now fix the ? number ifAnd from a duty combination of springs tenancies and prior unlawful events, what kind of suffice, offenses will in what will number, and crimes next door or around the corner or raise the neighborhood, And if obligation? a prescient owner concludes the his,, is what measures will it? is an It matter discharge easy to know whether a stairway defective and what repairs will it in put order. it is to decide how Again, fairly simple ushers many or guards suffice at rink skating railroad platform to deal with the crush of crowd and the risks of unintentional injury which the nature creates, the business birt how can one know what measures will protect against the thug, the narcotic addict, degenerate, and the psychopath psychotic? any We doubt that all crime-?
Must the owner prevent that end. has achieved community in the friendliest force to protect is enough owner know what can the How then add parenthetic- in their and property? (We tenants persons no -rational would found, were there that if ally a common committed to crimes basis to confine liability Here, apartment.) from the tenant’s hallway distinguished 8 A. M. from interior walks city policeman patrolled *11 p. to assigned men were M. and in two maintenance addition to 8 From 4 P. period. each building during a. m. M. shifts, tire in there were three special policemen working were more conduct the incidents of unlawful record indicates ad- assume that in the We daytime. numerous then than to an absolute obligation do not intend liability vocates of crime, some unarticulated all but rather have in mind prevent Whatever be may short of that goal. level of effectiveness standard of any performance of there that degree safety, none, ? for We know of which the owner look may guidance are at a loss one, and we аnd the record does not suggest here the jurors employed. understand what standard to 12 men left jury unrevealing; simply charge owner prudent tire task of whether deciding and women whether, had, have if defendant more, would done That here would have been deterred. of course likely robbers of also the view the Division. Appellate would there be as to when the uncertainty Not only furnish arises and as what measures police protection there would duty, exceptional will also be uncer- discharge of respect with to' the issue causation. This is so be- tainty inherent in extraordinary speculation cause the subject men of deterrence of bent criminal ventures. It would upon be determine whether some unknown quite guessing game unknowable and mentality character would have been thug owner had furnished some deterred if the or some additional It mnst be remembered that policemen. police protection not, cannot, assurance all provide does criminal against attacks, and so the topic presupposes that crimes inevitably
5Ü1 will be of the force. sufficiency committed notwithstanding cause is to be of ITence the bound proximate question exceptional difficulty. in
Thus here all vagueness would facets conspicuous the issue of and causation. this is one of negligence Perhaps York, considerations which underlie refusal New statute, where was withdrawn sovereign immunity per mit actions for failure against municipality negligent provide protection, as for from distinguished, example, who, failure to for an individual be provide bodyguard his enforcement, cause of aid to law is threatened with crimi York, nal retaliation. Schuster City See New N. Y. 75, 180 Y. 2d 2d N. S. E. 2d 534 (1958). we Finally, should not let our understandable concern the unfortunate plaintiff the fact obscure burden of this would fall upon citizens can who afford it. hardly We are not with a risk dealing which can be passed along increase liability premiums. insurance We are talking men, employment if perhaps employment, some- like effective thing realized, assurance is to be of doormen around the clock to cover each of the entrances to the build- *12 a ings, here total of entrances. If the owner must provide service, that every insurance carrier will insist he that it. do The bill will be paid, owner, not the by but by the tenants. if, And as we apprehend, the of incidence crime is greatest the areas in which the poor live, must and the]', alone, they will be оut to singled for their pay own police protection. The burden should be the upon whole community and not the the upon segment of which is citizenry least able to bear it. we Hence believe this most troublesome problem be must left with ’1116duly constituted police forces. The job theirs prevent crime and to go wherever need be to that end. It may well be that the owner of re- multi-family housing may fuse to permit patrol areas common the public police, Smith, State and (1962), if the owner cf. should thus assert his property right, would indeed ap- visit propriate to him the upon losses sustained by those to were authorities the public the protection he denied whom protec- to provide police But the duty provide.4 willing to not of of government remain tion is and should a housing project. owner authorization may the owner not seek do not mean that We further armed to provide officials public from appropriate be in interest to do so. at his own cost. It his may protection him to him alone. It is for for problem is budgetary That within the he furnish such protection can decide whether tenants, or, his from case he can obtain rental income as the federal from such subsidy housing public project, But it is some- give. be able and willing may authorities take such indeed steps, the owner else to say thing must cost, on the pain liability ultimate for at the tenants’ damages. Division and of the trial judgments Appellate are reversed. accordingly
court permit that defendant refused to Plaintiff did contend furnish, contrary interior, city’s police department patrols. On the purpose (to appears for another from evidence offered it prove events) alleged criminal defendant had notice city’s Hous- Public was but that nonetheless the insisted purse Administration, agency ing which controlled federal willing expenditures strings, a need if to consider additional was city doing share. De- if it was its satisfied the were shown subject corporate minutes of June 1957 reveal fendant’s nighttime only police protection (whether raised as speak- daytime tell). Spatola, well, we cannot Commissioner ing projects generally, he found a need “of a mobile of defendant’s said Housing guards properly police trained force for Newark —-uniformed in,” and a resolution which recited that “the offered sworn statutory duty Department is under no to offer Newark Police Housing Projects patrols.” The resolution was not seconded. intеrior said, opposed expressed One “I am commissioners their views. Other supplemental force over and above or Newark Police job.” doing said, I think is Another wonderful “We force which protection Department Hayes. around the Newark Police asked *13 project by people is not within onr but who crime center come The project. Department I think we should ask our Police into our put police police to that area.” Another said that “To add more * ** good. department would of our own not be there. No (dis- and joined Schettino, JJ. Proctor Jacobs, J., ' housing with Hayes are here concerned the . We senting) by Springfield a tract bounded located in Newark on project, Street, Avenue, 17th Avenue Belmont Avenue, West Kinney build- It of ten residential Street. consists and Hunterdon an administration center height, each stories ings, and com- room, 'a boiler offices management which includes walks, areas and parking There are building. play munity areas the which accommodated almost project throughout 5 and 6 1500 families and had between thousand population A was assigned patrol Newark officer persons. police but he was not project grounds per- walks аnd streets on mitted enter unless buildings specifically any project functions. The en- police called for in performance the residential were never buildings trances to locked and no attendants were ever them. assigned doormen or other As of the time here involved the defendant had special three Parkway- department, police or landlord bas his own not even tenant Apartments, Ivy any larger apartments.” Hill or of the meeting July 10, “we said At the 1957 the executive director difficulty get approval from the have had considerable amount of agency] Special have on [the P.H.A. federal for Police that we Regional projects”; meeting, our that since the last “I called the adequate policing problem I and was Office discussed the of more response feeling policing with this ‘that the of the P.H.A. is that met Authority.’ However, they primary responsibility is not of the willing Housing Authority representatives are meet with the city analyse projects the needs of the which our are areas in city share, Housing to the will do located ity, end its Author- P.H.A., with the consent will do its share.” A committee thereupon appointed to meet with the mentioned authorities. 14, August September 11, The and October 16 minutes reflect meetings city proposals sharing problem with officials at Hillman, apparently P.H.A., Mr. were discussed. for the indicated “approval budgeting proof limitations, his was based on of need and city doing doing.” city suggested all it should be study need, retain a retired officer to extent according but, deposition director, of defendant’s executive “we scope study. So, satisfied with the that he weren’t intended to we more, for —.” therefore u The record reveals no ent foregoing doubtless because solely question was offered all on the of “notice.” *14 at the between in policemen patrol project who worked shifts r. m. special policemen of 4:00 and 8:00 m. No hours a. 8:00 a. were hours assigned daytime for between m. p. 4:00 m. The had been milk deliveries project making since it was in 1954. He made opened customarily first deliveries at 8:00 a. m. 1957 he altered but on December p. his hours 1:30 in a and was deliveries build- making m. Avenue. in the ing 45-17th While designated building’s he self-service elevator was and robbed and his severely beaten assailants ran off and were never July apprehended. he filed his in the Court complaint County seeking damages from the defendant for his he injuries charging suffered them because the defendant had failed negligently “adequately common and eleva- supervise” passageways tors of the had failed building, to take negligently “proper measures” to the premises safe it had keep though knowledge dangers through prior assaults, occurrence acts to be negligently permitted dangerous performed and premises continued on the without taking “any precautions or their safeguards” against happening.
At the trial the plaintiff introduced evidence indicating the course 1957 and during prior the assault upon him, the defendant had received reports from many its special policemen of crimes and acts of violence at the Hayes project; some of reports these related to daytime occurrences and more on many bore nighttime events. daytime occur- rences included several incidents armed involving intruders lots at the project, in a parking mugging of a hallway residential the arrest of a building, hallway loiterer who reástance, offered an,d forceful of a molesting girl elevator of one residential A buildings. former special policeman at the Hayes project testified that during many monthly prior meetings December 1957 he had dis- cussed the need for additional with Mr. policing Bland, who employed by defendant as manager the Hayes and that he had project, recommended the employment of a 8:00 hours of between the special policeman assignment p. as a when called m. and 4:00 In his testimony A. m. he, defendant, witness for the Mr. Bland acknowledged turn, prior had recommended to the defendant at employed December 1957 that another special policeman *15 at the project. in
In addition all offered of the foregoing, Department’s evidence records the Uewark Police police is near Precinct, project. Fourth located the Hayes and These records referred to numerous of crimes complaints only acts of violence at the and included references not project occurrences such occurrences but also to nighttime daytime as and attempted assaults the elevators and rapes rapes of the residential The trial court refused hallways buildings. these records into permit police evidence although clear to me that have been J. they should admitted. N. S. Cf. 2A:82-35; Miesmer, v. 50 399, Schwartau N. J. 413 Super. 28 1958), denied, Div. certif. 34 State (App. (1958); 2 25 N. J. Evidence Wingler, 161, (1957); Wigmore, ed. 1940); Wigmore, 1530, 1530A. (3d supra § §§ did, however, The trial court admit into evidencе the official records of held Commissioners of the Hous meetings from to October 1957 Authority June as on the ing bearing extent of the notice to' the defendant of events at the alleged to the date of the Hayes project prior assault. These minutes comments contained to crimes many and acts relating defendant’s violence and housing projects the necessity precautions. additional Thus at taking held meeting 12, 1957 Commissioner Spatola on June referred to “a killing and a in one another” project raping and the need for a mobile force “uniformed guards properly trained in.” and sworn Commissioner Purcell noted that the Uewark had been asked “for Department Police protection around the view that “the Hayes” expressed crime center is not by people our but who come project within into our project.” held meeting 10, At later on July 1957, Mr. Danzig, of the Executive Director Housing Authority, reported that staffs the administrative he had met with managers and that they projects being operated by were of the were not “adequately belief that projects policed.” Executive Director expressed opinion special police should be areas and augmented specific committee was to meet with the appointed proper city officials and a Administration. representative Public Housing At a on meeting Housing Authority September Executive Director that conferences had reported been held with Newark’s Police who had sug- Commissioner gested the defendant a retired engage high ranking police officer to make a the need study for additional special At a policemen. on October meeting Executive Director that a further reported conference with the Police Commissioner would be held and that report thereon would be submitted. Di- Although Executive rector testified before trial that there was “some measure of crimes and juvenile at the delinquency” Hayes project *16 had testified again trial, the course of during the record contains nothing to that suggest any protective action was taken the defendant prior to the date of the assault on the plaintiff.
After the plaintiff completed his testimony, the defendant introduced Bland testimony by Mr. and Mr. Danzig along with a a copy cooperation of agreement between the of City Newark and the Housing That Authority. agreement pro vided that the would furnish city the facili Authority ties, including police and protection, health which were fur nished “other and dwellings inhabitants in the City.” Pur suant to this- agreement city did a provide police officer who patrolled streets and walks of the project, but the as testified understanding, Bland, Mr. was that city were policemen “not allowed to into the go Simi buildings.” lar Mr. testimony by was that Danzig city policemen were not enter permitted to buildings project except when called because actually of the commission or threatened com mission of crime. Mr. Bland testified that the responsibility
597 buildings to the project’s assigned men of maintenance duties,” and there “janitorial and other “cleanliness” with had any they responsibility to suggest nothing all testi At of the close and order. safety respect to the jury the case trial submitted court mony On $6,000 plaintiff. in favor of returned verdict of benefit was, course, entitled appeal, drawn from be inferences which might all reasonable Breeze Cor v. Menth the verdict. See to support evidence S., & Inc., 5 J. 428, Appeal 438 C. 4 N. J. (1950); poration, Division Appellate 1222 (1958). Error 1562(4), p. § thereon and the entered verdict judgment sustained jury’s N. 245 (1961). at 70 J. Super. in an opinion reported Division, the Appellate attack the action of the In its on it that was under relied on its position primarily guard any special “police protection” to furnish duty no landlord, re that, It did not it deny assaults. against elevators, hallways, and control possession tained facilities, and them in keep common owed other v. 15 safe See Taneian reasonably Meghrigian, condition. At J. 267, Hedges Housing N. 272 v. Authority, (1954); 1952); 21 N. J. Div. City, Super. (App. lantic Newark, Doud v. Housing Authority Super. however, Div. contended, It that that 1962). (App. the physical related to structure and did not safety furnishing protection against extend to crimes. Citing Fox, 1958), Div. 50 N. J. re Genovay Super. (App. Prosser, 29 N. J. Torts versed ed. (1959), (2d its stated relied on 1955), proposition “generally owner is not property obliged anticipate guard against the criminal acts of others.” that to so, courts Assuming held have nonetheless where there repeatedly are special *17 from, which the owner conditions operator premises should and foresee unreasonable recognize risk or likeli harmof or danger hood to invitees from criminal or wrongful others, he must take reasonable precautions acts circumstances, under the may, fairly justly entail 598 Exton v. Cen guards or See
employment special police. Co., tral R. R. 62 N. J. Ct. 7, aff’d 63 (Sup. L. 1898), 11 & N. J. L. 356 & A. v. West Sea Jersey Skillen (E. 1899); Co., & shore R. R. 96 N. J. L. A. Sand (E. 492, 1921); 494 Co., ler & N. v. Hudson Manhattan R. R. J. Misc. 537, 539, 8 & A. aff’d 108 N. J. L. 203 A. 151 99 (Sup. (E. Ct. 1930), N. Williams Essex Amusement J. L. v. Corp., 1931); 133 Club, Inc., Ct. v. 180 14 N. J. 218, 219 (Sup. 1945); Reilly Crammer v. Willston 420, 424 Super. Div. (App. 1951); Co., Inc., 19 N. J. Operating Div. 489, Super. (App. 490 Newark, Becker v. 72 N. J. Super. (App. 1952); 355, 358 Co., Div. v. Neering Illinois Central R.R. 1962); 383 cf. Ill. N. E. 366, 50 2d v. Wilson Line 497 (1943); Quigley Massachusetts, 338 Mass. N. E. 2d 77 A. L. R. 125, 77, 154 2d 499 v. Lillie ; 332 U. 68 Ct. (1958) S. 459, Thompson, S. 140, 92 L. Ed. 73 v. McLeod Grant School County (1947); Dist. No. 2d P. 128, Wash. 2d 360 Ken- 316, 42 255 (1953); dall v. Gore 98 U. D. Properties, App. S. C. F. 2d 236 378, Restatement, 673 (1956); Torts 348 See (1934). also § Da Rocha v. New York City Housing 109 N. Y. Authority, S. 2d 263 Ct. (Sup. Div. N. 122 Y. 1951), 728, aff’d 282 App. S. 2d 397 v. (1953); Geigel New York City Housing Authority,
225 N. Y. S. 2d 891 Ct. (Sup. 1962); Hansen v. New York City Housing Authority, 271 Div. 986, 68 N. Y. App. S. 2d Amoruso v. New York Transit City Author- (1947); cf. Div. ity, App. 2d 207 N. Y. S. 2d Abbott (1960); v. York New Public Library, Div. App. 314, 32 N. Y. S. 2d (1942); Siegel 1536-46 St. John’s Place Corpora- tion, 184 Misc. 57 Y. S. 2d (1945). Co.,
In Exton v. R. R. Central supra, plaintiff was knocked down by hackmen on a scuffling used walkway at the Central passengers Railroad depot. She sued the de fendant l’ailroad and introduced evidence that there had been prior and that scuffling the defendant had taken no steps to prevent and resulting injury passengers. The court held the matter was properly submitted to the jury -which returned verdict the plaintiff. In the course of his *18 defendant, out that pointed, Lippincott Justice opinion, to reasonable care use carrier, to obligated was as a common and its passengers for the use of its safe walkway keep sufficient furnish watchmen it was required while hap- unexpectedly when “all negligence, force or overcome precautions reasonable to take duty it was under pening” at any from quarter “from assaults its protect passengers occur, under be expected they reasonably might of the parties.” condition the case circumstances of L., 62 N. J. at 14. p. Co., the princi B. B. supra,
In Illinois Central Neering v. recovery by sustain Exton were applied ples expressed railroad defendant’s assaulted at the who had been woman The train. the arrival a suburban while awaiting station had been that, prior there no evidence indicated although hobos, assaults, tramps had permitted have reasonably its station and could to loiter about vagrants on patrons. of unlawful acts the commission anticipated evidencing noted circumstances Thompson Justice assault passengers placed potential danger upon “exercise reasonable affirmative the railroad to duty upon 2d, 503. 50 N. E. at for its prevention.” p. care caution Massachusetts, Line where See v. Wilson Quigley supra, was sustained ship an assaulted recovery by passenger on finding Judicial Court Massachusetts Supreme failed its discharge had shipping company negligently 2d, E. protection. p. suitable providing New Transit Authority, 80. also Amoruso v. York City See had where held that the a cause of plaintiff the court supra, the Transit sustained against injuries action Authority station; the result an assault him at a upon subway that it stated was for to determine whether the de jury “reasonable precautions” fendant taken its discharging 2d, of care. 207 N. Y. S. 856. p. Co., Inc., Willston Crammer v. Operating supra, at a rink when a man injured skating young skated her rapidly between and her companion and threw her crowded, very rink was ground. skating
fast, There on rowdyism. and there were some acts bordering were three although ordinarily were two attendance guards *19 In employed. sustaining 'plain- awarded to judgment tiff, the duty Division noted the defendant’s Appellate of due care extended “to acts third protection against the if he persons ought have the occur- reasonably anticipated rence” N. J. at (19 and that the evidence Super., 490) p. justified inference “better the rink would policing of have deterred” the conduct. 19 N. J. injurious at Super., p. Milwaukee, 492. See Lee v. National Baseball League Club of 168, 2dWis. 2d 811, N. W. 814 (1958). The principles Crammer underlying have been widely ap plied varying situations decisions which im may carry plications even more on bearing the case at In closely hand. Wallace v. Der-Ohanian, 141, 199 Cal 2d App. 18 Cal. Rptr. (1962), a court sustained from a recovery camp a child operator by who had been intruder; attacked by it found that the occurrence “was one which the defendant should have foreseen and better 18 Cal. guarded against.” at 895. In Rptr., p. McLeod v. County Grant School Dist. 128, No. the court supra, sustained from recovery a school district a child had who been attacked in the school gym nasium. The court held that a could jury find from properly the circumstances that the occurrence “was a reason danger to be ably anticipated” and that the school district was negli gent failing to take proper precautions to prevent it. 255 2d, P. at 364. In p. Abbott v. New York Public Library, the court noted that the supra, a owed of care its keep place reasonably safe and that this included a duty to supervise it adequately “so that persons lawfully it using exposed are unreasonably to danger”; it held that a visitor at the library had cause action against library for injuries sustained when he was assaulted by another visitor whose dangerous tendencies had earlier been brought attention. 32 N. library’s Y. S. 2d, at p. 966. In Lillie v. Thompson, supra, was employed defendant as a alone telegraph operator night work at an isolated she part the railroad While at work yard. beaten by an intruder and sued her injured. She seriously employer for her failing adequate precautions .take In safety. action, that she had cause holding Court Supreme pointed out that irrelevant foreseeable was from criminal danger conduct since the de fendant "nonetheless had a to make reasonable provision S., Ct., it.” against 332 U. S. p. p. Ed.,
L. at p. 75. Kendall Gore Miss Whitman was Properties, supra, in an tenant apartment the defendant. building operated by She was choked death who been by Hickey given her key to apartment by the defendant the purpose fox it. There was painting evidence from which a could jury find that care had not been taken in or in selecting Hickey *20 his activities. In supervising that the administratrix holding of the estate of Miss Whitman of had a cause action against the defendant which should be submitted the jury for its the court determination, views as broadly expressed its landlord’s duty of care under modern conditions and as to hazards, various if noting knows, that the landlord or in the of exercise care ordinary know, of a ought dangerous situation and "fails to take such as an steps ordinarily pru dent in view of person, circumstances, existing have would exercised to avoid his tenant, injury he may liable.” 2dF. at 680. See also v. p. 1536-46 Siegel St. John’s Place Corporation, where the defendant was supra, held liable from a injuries bite suffered the dog by while he plaintiff was a common of walking along apartment the stairway house defendant; owned by the the court pointed out that the defendant-landlord was under a duty the keep common in a ways safe apartment reasonably condition and that this the duty “extended to exclusion known of vicious animals from frequenting 2d, thereabout.” 57 N. Y. S. at 474. p. v. Maryland State Manor & Real Estate Trust Com Cf. pany, F. 2d (4 1949), Cir. where United States the of a tenant death Government was held liable the because from a flea of the bite by from a disease transmitted means Public Eederal rat infected at premises operated Authority found that the the court Authority; Housing in its care due not to exercise its discharged obligation F. of the premises. common areas maintenance 2d, 416. at p. Authority, supra, Rocha v. York City Housing
In Da New city housing a 40-acre was of a a child tenant plaintiff along ridden He was aby bicycle improperly project. injured was area one within the pаths project. Although at the time of- was observable policed three none guards, had a cause plaintiff the accident. In that holding Authority, Housing which could be asserted action against supervision that absence of any out pointed court be inferred fairly a was vital it could from guard have rider would bicycle he had been present, if Yorh City Housing Authority, In New kept away. Ceigel was injured was when who supra, boy playing ran her. She sued the at the into punchball housing project that there testimony introduced Authority Housing vicinity no officer on the immediate housing guard that the defendant had ample at the time of accident and had been the area for play -purposes. notice that children using the court plaintiff, pointed awarding judgment area the defendant under keep out that “in safe for the its condition reasonably protection it could dan tenants” “the foreseeable ignore 2d, 225 N. 893. Y. S. gers.” p. *21 in be borne in mind that the instant
It must matter at is not all concerned with the multi ordinary private court There apartment house. the owner’s customary dwelling on the measure of afforded- protection by public- reliance by may force criminal acts intruders police against perhaps viewed, as a as not unreasonable in law, matter relation' , Fox, risk involved. Genovay to the nature supra Cf. at 551-552. court Here, 50 N. J. the- is con- Super., pp. has cerned with a situation which the special which, built virtue high-rise multi-unit housing project by size, its and composition operation, presents special mode Mulvihill, “Prob dangers See requiring special precautions. Q. lems in the L. of Public Temp. Management Housing,” Jacobs, 179 (1962); The Death and Great cf. Life of “Slums, New,” American Cities Old and (1961); Harrington, 30 Commentary ; The Shoolc-Up 118 (1960) Salisbury, Generation Such and (1958). surveillance activities patrol as were were con engaged Newark officers police fined strictly to the streets walks. were They per and mitted to enter the and Authority buildings Housing relied on its own entirely supervision employees It hours buildings. special between the engaged policemen p. of 4:00 M. and 8:00 a. m. decided, but for obscure reasons own, of its not to engage between any special policemen p. hours of daytime 8:00 a. m. 4:00 It took no action m. decision, to alter its recommenda specific notwithstanding tions from one of its special officers and project its manager at Hayes, its awareness of the notwithstanding daytime crimes and acts of violence at re Hayes, notwithstanding peated expressions individual commissioners of the housing need for additional and elsewhere. Nor policing Hayes did it take any action to alter its policy permitting entrances to the residential buildings Hayes remain unlocked always Indeed, unattended. the record indicates that, though daytime special were evident, the dangers defendant took special precautions no at all with respect them. Under the circumstances it seems clear to me that a jury find, could readily that a prudent reasonably person, as situated was defendant, would have foreseen and recog nized an risk unreasonable or likelihood of harm or danger to invitees such from plaintiff, criminal or wrongful acts of others, and would have taken reasonable protective precautions through of its enlargement special own force or in Times, other manner. appropriate New York Cf. September 13, 1962, col. 5. p. *22 that, assuming
The has advanced the contention defendant precautions in to take failing of on its part dereliction there policeman, a daytime special such as the employment have prevented would his presence is to indicate that nothing knows onе course, true that no is, the assault. It have would daytime policeman certain the effect of a what been; employment know whether anyone nor does in injuries have would guards prevented additional Crammer, recovery where in cases Geigel, many other Nevertheless, daytime police was it that likely allowed. reasonably could as a deterrent man would have served sense, the was, proximate in a be found that his absence legal v. ton Crammer Wills cause plaintiff’s injuries. See Co., Inc., 492; Lee 19 N. J. at Super., p. Operating supra, Milwaukee, v. National Baseball Club League supra, case, Lee a ball 2d, N. W. 814. In the at p. spectator to recover other injured spectators stampeded was when game for money recovered a a foul ball. The plaintiff judgment the ball club and this was sustained .damages against in which held that of Wisconsin Supreme opinion Court find that properly permitted the jury have an his in usher at failing assigned negligent the defendant’s conten in the area. response position usher have even would not presence tion that jury the court out prevented injury, pointed have inferred that usher’s presence could reasonably his have been effective” аbsence constituted “might 2d, ultimate event. 89 W. a “substantial factor” A broad be approach may 815. found p. comparably where New the court held it is Jersey recent cases if the defendant’s constituted a sub negligence sufficient occurrence; limits, within outer stantial factor in the wide cause is left to the proximate justly the issue of jury. See Nichols, 31 N. J. v. (1959); Martin Rappaport Inc., Bengue, (1957). 25 N. precedents overwhelmingly support cited the plain- may, course,
tiff’s cause of action. They differentiated *23 for action since them involved a factually negligence none of project. in the of a Newark housing suffered elevator injuries & Western J., v. Frankfurter, in Still concurring Norfolk Cf. Co., 103, 35, 148, 7 L. Ed. 2d Railway S. 82 Ct. U. S. all But since (1961). legally be differentiated they may of them which are involved soundly grounded principles indeed, most of them involved'circum- patently applicable; those, far less stances than here. compelling High- presented rise have with them housing projects problems brought have caused serious concern the nation. See throughout Harrington, at supra, 122; at 75. p. Salisbury, supra, p. Cf. News, 15, 7, 1; Newark No- 1962, November col. Evening p. 19, 1962, 20, vember col. Jane Jacobs has referred p. spe- 1. in cially dangers violence corridors elevators and has projects that the safe suggested reasonably way dealing with them is'to provide full-time'attendants (Jacobs, supra, p. 399); and others have suggested possibility of suitable alarm or “video guard” See the New systems. Times, 14, York 1960, 20, 2. March col. When an p. act violence occurred at a New recently York City housing proj- ect, locks were changed and private were guards additional Times, engaged. See the New York September 13, 1962, p. 1, 5; col. September 15, 1962, 27, col. 1. Here p. the Newark Housng Authority some recognized and the dangers need for taking precautions by special engaging policemen who were presumably employed in accordance with N'. J. A. S. 40:47-19 and the Civil Service specifications to hous- relating But it ing guards. neglected engage any assignment during daytime hours or to take other any suitable precau- tions it was though fully aware of the daytime serious as well That nighttime dangers. this amounts to actionable negli- gence finds ample support not only the precedents but also strong underlying considerations of fairness and justice.
The defendant’s to take reasonable precautions; more no than vague is the test reasonable- ness our law throughout States, Nash generally. v. United Justice L. 780, (1913), Ed. U. 33 S. Ct. S. law test in the field of criminal that even
Holmes noted
infring
without
applied
bemay
to reasonableness
comparable
Similarly
of fairness
due process.
principles
ing any
374, 86
513, 62
Ct.
U. S.
S.
Ragen, 314
United States
Justice
Court,
through
the Supreme
L. Ed. 383 (1942),
so
Black,
statute
penal
out
fact
pointed
oE rea
the question
framed as
to determine
require
jury
afford a
“is not sufficient to malee
too vague
sonableness
S.,
at p.
conduct.” 314 U.
practical guide
permissible
Ed.,
many
86 L.
as to how
390. Here there was no issue
p.
The fact was
sufficient.
would have been
daytime guards
*24
daytime
the
failed
even
single
defendant
to engage
insofar
guard
any
or to take
other protective precautions
the
serious
daytime
were concerned. When
dangers
very
considered, the cost of a daytime
dangers
nature of the
insignificance.
fades into
reasonable precaution
or other
guard
be entitled
may fairly
that the
Any suggestion
of its
the
fácil-
high-minded purposes
because of
immunity
dissipated by
judicial opinions
reference
readily
ities is
Ear
27
J.
Eye
Infirmary,
v. Newark
and
N.
such as Collopy
compelling
where the court set forth
fully
29 (1958),
law immunity
common
of charit
reasons
discarding
it
Furthermore,
legislation
pertinent
able institutions.
have
notion
rejected any
be said to
may properly
self
was to be immunized from ordinary tort
Housing Authority
250-253;
N. J.
Super.,
pp.
See 70
responsibility.
cf.
454,
v.
J.
22 N. J.
466
Highway Authority,
N.
Taylor
Auth.,
v.
35 N. J. 26
Turnpike
McCabe
(1956);
Burr,
Housing
See also Federal
Administration v.
(1961).
242, 245,
488, 84
724,
309
60 S. Ct.
L. Ed.
728
U. S.
(1940);
&
v. Reconstruction Finance
306
Corp.,
U. S.
Keifer
Keifer
516,
The effort to confine procedural narrowly thesis theory or of action based on the absence of solely seems to me special police to be reversion to a period bygone where technism was placed event, above justice. any lacks the support trial record. The com- plaintiff’s did plaint not mention special but asserted that police 'defendant had failed to exercise over the proper supervision common passageways and elevators, had failed take proper measures to keep premises safe it had knowledge though dangers, perform- negligently permitted ance of acts' dangerous without any precautions taking safeguards their against pre- happening. supplemental trial order did refer to' special police, but it also referred the absence оf “other safeguards” set forth specifically the plaintiff’s contention that “the defendant failed to take proper adequate precautions and measures to safeguard on persons the premises including plaintiff, with regard to their personal safety.” trial there con- During siderable evidence with respect insufficiency special but there was also evidence indicating was never locked, building that no doorman or other attendant was ever it, and that assigned pertinent no day- protective *25 time precautions were ever taken. In his the summation to jury, counsel for the plaintiff stated that his case was pred- icated on the negligence of the defendant “in failing to furnish reasonable safety protection and to this plaintiff”; and while paid he considerable attention to the absence of special daytime he police, also referred to the self- “open elevators,” service to the fact that intruders “in the slept hall- ways and the and to stairways,” the fact that there were no locks on the doors or attendants in the At one building. in his point summation he noted representatives that of the Housing Authority not testified why “they didn’t put n the locks on didn’t they put there in the
.police daytime, why daytime.” in an attendant the doors, have why they didn’t the recognized trial judge his to the the jury In charge any not at He did claim. broad nature of the plaintiff’s of absence on the solely the claim rested time that suggest in the jury instructed the but, contrary, on the special police his follows: charge, of early part injury charges plaintiff and loss his that in this action “The n property- it failed exercise in that was caused the defendant having protection safety persons and care .reasonable right premises. hand the other The defendant on to be on the lawful police pro- plaintiff provide with no that it had asserts any duty respect tection, any it owed did fail in that it any danger reasonably plaintiff it could not have foreseen because plaintiff of the sort here encountered.” mainly In of his the trial dealt judge the remainder charge con- terms with fundamental general principles negligence, jury instructed the and causation. He tributory negligence it in the issue that the test to be applied by. deciding was defendant exercised in whether “the negligence care which reason- of its Operation Housing Authority time and place man would have exercised able, prudent the circumstances.” And summarizing under. he it consider of the jury, suggested responsibility of the' whether there the defendant aware danger, whether care, the defendant to exercise was a fáilure reasonable efficient, defendant’s failure was the and whether the produc- all injury. light cause ing foregoing see it now said that it is how may plaintiff difficult his the absence of strictly confined claim that issue. jury'on case was submitted free any a full trial which was error prejudicial After 255-256), found jury that the Super., pp. (70 unreasonably had acted to take failing protective notice of the serious despite precautions dangers for his Its compensate resulting injury. should based on the evidence on firmly established verdict *26 law no presents and the record principles negligence Indeed, as I view the it. rational ground upsetting un- matter, the verdict not only operates upsetting also disserves the policy but justly strong in the maintenance and that, considerations which dictate under the of its be operation project, placed justly of due care accountable traditional of its breach. I vote to affirm. those the result injured For reversal—’Chief Justice Justices Wbintkatjb, and Haneman —4. Hall Eranois, For Jacobs, Pkoctok and Schettino affirmance —Justices —3.