*1 559 HARRIS, INFANT, HARRIS, COLIN BY GUARD- COLIN LITEM, INDIVIDUALLY, HARRIS, AD IAN AND COLIN C. CO., PLAINTIFFS-APPELLANTS, v. MENTES-WILLIAMS INC., JERSEY, A CORPORATION OF DEFENDANT- NEW RESPONDENT.
Argued February 9, Decided March1953.
Mr. Harold A. Price the cause for appellants (Mr. argued Gerson Isenberg, G. attorney).
(cid:127) respondent for Emory Mr. James B. the cause argued J. Mr. James Lamb, <& Emory, Langan attorneys: (Messrs. an, on the Lang brief). the court delivered by
The was opinion his The infant plaintiff, through guard- J. Wacheneeud, sustained litem, to for injuries ian ad sues recover damages His father 19, in an on October 1951. accident occurring sues per quod. to defendant, a a bulldozer contractor,
The using a lot owned Roman by Joseph’s excavate St. grade Lake Church, the Echo adjacent to immediately Catholic child, The six in West Milford Township. Public School in and on the day question, attended school years age, teacher, recess, excused by Some time after being during and was the excavation made defendant fell into feet a furrow three or four found bottom of lying line. grade property below area used children had been attending defendant’s as a for many years school playground the presence was aware of operator, bulldozer employee, the children upon premises. the issues as order framed follows: pretrial charge negligence by reason of defendant’s to “Plaintiffs failure condition, safeguard knowing and hazardous well proximity grade levels, for St. tomarily [*] Defendant S: it denies that Si” Joseph’s played thereon. concedes and that the school Homan airy duty and that a difference was the infant yard Catholic Church it was owed and the fact plaintiff engaged fell and sustained it that minor children cus- immediately thereby grading the infant created in the adjacent parking plaintiff injury, lot
Tlie trial court dismissed the on action and plaintiffs’ appeal J. Appellate Division, N. affirmed Super. by a vote, divided thus giving right pursue appeal taken.
There is no attack or with the rule upon enunciated quarrel v. Co., South 9 N. J. 38 Jersey Broadcasting (1952), but the centers rather its controversy upon applica bility the circumstances judice. sub *3 The majority the have Division “To Appellate thought: permitted the submission of this case to would have the jury been an unwarranted extension of the the Strang doctrine of case and those therein,” cited while the dissenter [cases] could not the same case “distinguish applicability” of and held it a controlling’, there should reversal. concluding
Before however, discussing issue, we note the court expressed the view that the been operation, bulldozing having carried on for about six weeks term, during “created a a condition of constantly changing grade land which must have been even obvious to children young school and it attending does not that lacked the appear they to realize the risk ability of within the area of coming operation.”
If this or was intended imputes either an to denominate of assumption risk or we contributory cannot negligence, subscribe to that it was such a matter law thought as of because of the tender of the child. We are aware of no age authority supporting conclusion intimated. in the majority Division reasoned the instru- did
mentality not cause the accident but rather “it was the in the contour the land change of caused bulldozer as it moved across land” and the so change wrought knew a condition which the contractor or employee
not have have which it realized or should or should known “or of death risk one an unreasonable realized to be involving of in the position harm children bodily standing or serious the infant plaintiff-.” of use defendant “There was no says:
The respondent effect which had the causative slightest a agency dangerous But we to the infant plaintiff.” the unfortunate injury upon a between dangerous distinction in principle no perceive of a condition the land and instrumentality dangerous on instrumentality. an the land created by case, was that the Strang supra, rationale of the a rise to a foreseeable instrumentality gave of use land as Here the condition of the changed risk of harm. risk of harm. to the foreseeable the defendant rise gave case, supra: from Quoting again harm, foreseeability “The basis of is duty proportion An risk. is care in the foreseeable measure of disregard obligation a remediable misfeasance.” act of this the church an invitee on not -plaintiff Granting licensee, a the rule still The question prevails. of the defendant toward a duty person here not duty respect mature but the child. years “Very' regulate rules conduct of man with few applied with the least show of reason to his his fellow could be every legal duty dealing with It is the one intercourse children. *4 protect against with a child to it its own indiscretion.” L. Co., N. 57 J. 463 Ct. (Sup. Danbeck v. J. Traction N. Schmidt, Inc., in Miller Oscar cited and followed v. 1895), N. L. 324 A. where the said: 1924), 100 J. & court (E. applicable a animo the to such situation. “Quo seems test manifestly, tacitly For, their allow immature children to exercise might playful legally propensities in environment charge an or licensee.” the owner with invitee
563 The rule here relates children, who because particularly their oí and want are immaturity of discretion given pro- tective consideration.
Where the is land foreseeable and trespass upon the condition an involves unreasonable risk of death or serious bodily injury child, of the possessor trespassing Torts, land liable. Restatement 339. sec. of acquiescence trespasses may “Habitual in constitute well license.” Strang Jersey Broadcasting Co., supra. v. South In a very America, recent McGill case, v. United States of 873, 200 F. 2d 10,839 No. A. (C. 7, January 1953), after court, extensively from of the quoting opinions and Appellate. Division Court in Supreme Strang case, said: opinions development “IVe two think these mark a real in the law quality judicial high thinking. of a stale noted for its of The court carefully building upon gone Jersey what has before New
judicial history based, giving but at the same time is it a direction arbitrary phrase, thoughtful not on an analysis use of catch but on a principles underlying development of sound of tort law. say Strang We think it is fair to from the of discussion case Appellate Supreme both the Division and the § 339 Court represents Jersey point the Restatement of Torts the New of view. represents point opinions It also view shown in well considered parts country. Torts, page courts other See Prosser on per- 620. The Restatement did not this make view of law haps helped development enunciating clarifying has in its and already going what was on.” We case, think the supra, applies question should have been submitted to negligence jury. below is reversed and the cause judgment remanded for a new trial. (dissenting). I would affirm the judgment Oliriiant, J.
below largely for reasons in the expressed majority opin- ion of the Division. N. Super. J. (1952).
There is no evidence whatever as to how the infant plaintiff received his injuries. There was no him contact between *5 across teacher He was seen by running bulldozer. shortly and toward church playground case; injured. he had been thereafter she was informed the defendant theory negligent
was tried on the haz and failure “to safeguard dangerous reason of its condition, school of the the proximity ardous well knowing customarily played that minor children yard and fact opin opinion minority here majority thereon.” The the rule enunciated Division applied ion in Co., 9 N. J. Broadcasting Jersey this court in v. South predicated As I read that opinion, 38 (1052). dangerous” an instrumentality “highly on the maintenance of furrow harm.” A death or bodity or cause serious “likely or inherently potentially feet not so three or four deep rule of the as to warrant application a condition such an unwarranted in that or to make enunciated case is here done. philosophy extension of its doctrine re inescapable the instant ease leads to the majority of lands or one who on behalf sult that owner thereon, condition any or creates owner erects structure a virtual insurer farm lands or they city property, be thereon, even though infants injuries sustained against or licensees. they trespassers J., dissent. Vanderbilt, concurs this and Hei-ter, Waciieneeld, Jacobs For reversal—Justices Brennan—4. Justice Justices and Vanderbilt, For affirmance—Chief Burling—3.
Oltctiant