*1 testimony was the detective’s want to. Also uneontr overted until lawyer consult defendant made no request and acknowl- read completed, after his statement had been the absence held that in has repeatedly court edged. right an accused’s an attorney, to consult with request denied. been has not interrogation counsel during police v. State Bindhammer, N. J. 372 (1965); State See J. 43 N. Vigliano, State 44 N. J. 151 Hodgson, (1965); 67, 83-84 Smith, 43 N. State v. 44, 49-52 (1964); Ed. 13 L. 1005, 85 S. Ct. U. denied 379 S. cert. (1964), 2d 706 (1965). his statement no contention made defendant has
The of the above that, in light We conclude involuntary. in evidence. admitted was properly his statement reasons, the cause is reversed conviction judgment new trial. for a remanded — and Justices Weintraub, Justice Chief
For reversal and Haneman—6. Schettino Proctor, Hall, Jacobs, For affirmance—Hone. INFANT, MAYER, AD BY HIS GUARDIAN AN
WILLIAM MAYER, MAYER, LITEM, AND JAMES INDIVID- JAMES PLAINTIFFS-RESPONDENTS, UALLY, AU- v. HOUSING CITY, A BODY THE CITY OF JERSEY THORITY OF THE STATE OF NEW AND POLITIC OF CORPORATE JERSEY, DEFENDANT-APPELLANT. 2, 1965 Argued Decided June 1965. March Mr. Robert E. Tarleton the cause for argued appellant *2 (Messrs. Beggans Keale, attorneys). Janet W.
Mrs. Freeman the cause for argued respondents Fred (Mr. Freeman, attorney). The is affirmed for judgment the reasons
Per Curiam. expressed in the opinion of Judge Labrecque Division. J., C. concurs in result.
Weinteaub, The facts with which we are (dissenting). Haneman, here concerned are generally recited in the adequately Ap- pellate Division opinion, 84 N. J. The
1964). thesis of plaintiff’s case is that hit he was by stone thrown some unknown person another (presumably child) while enjoying facilities playground provided by the defendant; of the stone and the con- throwing tact of that missile incident; with was a plaintiff foreseeable and that it was defendant’s to furnish sufficient super- visory personnel an such acci- prevent dent. The foundation of plaintiff’s case that the in- proof was jury caused such a stone, thrown as only upon affirmative determination of that postulate can the question of defendant’s arise.
Neither nor plaintiff the other any nine boys playing him, baseball with nor of the any numerous saw spectators, how plaintiff injured. was Aside from one of testimony by that after plaintiff’s playmates struck, plaintiff he noticed a profusely, stone on the bleeding near ground had been it,” where “with blood on plaintiff standing, plain- entirely upon tiff relies testimony antedat- stonethrowing this accident it proof must have been a thrown ing which struck him in the The eye. stone testimony that chil- threw stones on occasions ran prior dren gamut from three times to once or year two or twice week. The de- scription of the stones thus varied from thrown allegedly pebbles to the size of balls. There was no evidence golf stone-throwing ballfield on the vicinity day question. The evidence is that only on this particular point one of the participants in the baseball had seen two game nine-year-old boys stones about hour before throwing plain- tiff’s accident in a from, section some 350 feet and not away facing, field in plajdng question. manager housing project testified that there had been no complaints about nor of accidents stone-throwing any reports therefrom. from the
Proceeding hypothesis that the accident did occur as plaintiff the defendant can be liable if it had alleges, to this particular plaintiff provide supervisory personnel the tortious adequate prevent infant intervening *3 behaviorism, and if a it breached such after duty. Only the of such a imposition is the of duty e., i. question negligence, of breach reached. duty, I conceive that no such should be duty imposed. Division
Although adverts to the opinion fact that: “Initially, it is to be noted that area in is one over designed
which the landlord retained control. It was for the use to being put happening which it was at the time of the of the accident. The rule is well settled that a landlord owes to tenants and their duty portions premises.” a children of reasonable care as to such of the Super., p. 417, N. J. 84 at it in does reality not bottom its conclusion on traditional rules which tortious govern liability from the land arising lord-tenant e. g., Doud v. relationship, Housing Authority of City Newark, 75 J. 340, N. 344 (App. 1962), of but the more flexible of a upon thesis generalized standard of all negligence applicable landowners, based care com upon mensurate with the reasonably foreseeable 84 N. J. danger, at 417—418. The Super., pp. Appellate Division, effect, that line of follows cases which has a imposed general duty on the owner or of land to use occupier reasonable care under Thus, circumstances of the case. when the presence of
570 anticipated, the child the land should been whether upon invitee, a licensee or a arises to trespasser, duty that child is that child from conditions dangerous existing protect harm; of The basis of is foreseeability land. foresee- and the measure of is care in duty proportion de- landowner risk, able of of the relationship regardless case leading fendant to the infant As stated in the plaintiff. Co., 38, of N. J. 45-46 Strang v. South Jersey Broadcasting rise to legal : “The relation (1952) particular gives foresight commensurate demands of reasonable with the 1, 9 (1958); harm.” v. 28 N. Co., See Simmel J. Coop N. Camden, (1957); N. J. City v. Wytupeck 444-445 v. N. J. Riegel (1957); Imre Paper Corp., N. J. Super. Healing Security Corp., Steel Equipment herein decision Thus, the 123, 132-133 Div. 1958). law now facts, but the proposition cannot be limited its landowner or public announced is as applicable private scope duty imposed. as is the authority, as to housing Camden, City is in Wytupeck defined Such J., 461-462, follows: pp. “ ‘Duty’ conception; of conduct and the standard is not abstract Duty particu out of a relation between the is not absolute. arises enjoins justice pro parties right lar reason and essential con of the one the other what the law common tection foreseeable, reasonably harm, deems an unreasonable risk of such as sent Heart, 549, (1957). 24 N. J. kar v. Church the Sacred Lo legal negligence, duty signifies conformance ‘to the field of risk’; light apparent of reasonable conduct standard *4 plaintiff’s is interests are entitled the essential whether ‘the protection against legal conduct.’ Prosser Torts the defendant’s Duty largely grounded (2d ed.), in the natural re section 36. is relations, living sponsibilities such as have the of social and human recognition men; is had reasonable and fulfillment correlative of conduct. standard ‘Duty’ rigid according is standards of a formalism simpler equally compelling present society, immune to the needs adjust order; necessity changing social relations must of fellows; accordingly exigencies and man’s to his and and relation reasonably commensurate with the the standard of conduct is care danger, light foreseeable such as would be of the reasonable * * * recognizable risk, negligence essentially for is ‘a matter of risk say recognizable danger Prosser, Ibid., injury.’ section 30.” See also Kahalili Inc., 595, v. 26 N. J. Realty, Rosecliff ; 56, Johnson v. (1958) Kolibas, 75 N. J. Super. (App. Camden, Div. v. Slenderella 1962); McKinley Systems of N. J., Inc., 63 N. 571, 581 1960).
An element considered on integral to be the question existence of a is the factual determination whether there exists a foreseeable which the de- reasonably danger against fendant should has been said The test protect plaintiff. to be whether the reasonably prudent person recognize and foresee an or likelihood of harm or unreasonable risk Auth., to others. McCabe v. N. J. 35 N. J. Turnpike danger Nichols, v. 31 N. J. (1961); Rappaport . creation of a consist (1959) negligence may situation which involves unreasonable risk because of Nichols, action of another. expectable Rappaport J., at 201. that children There can be no doubt that it is foreseeable stones, will throw not neces indiscriminately of tender years in a or at a human but spirit combative sarily target, their mere their joy releasing pent-up energy testing Nor can their to throw snow propensity physical prowess. time, in fisticuffs at time, any in the winter or to engage balls does not the further cata permit Space pass unrecognized. which other natural many proclivities might of their loguing A list would reach to some third person. result in injury could a vivid Only imagination proportions. tremendous recite the activities which many and in advance abstractly their stimulate, by, curiosity and which are stimulated occa injuries All manner of accidents animal vitality. conduct are foreseeable whether on normal youthful sioned and by field, parks, highways at public the playing was most proposition aptly property. on private ways, Central Power Jersey Diglio by Judge Jayne expressed *5 & Light Co., 39 N. J. 1956), when he stated: “Although teenagers the modern inclinations have adults unpredictable, propensities become somewhat the natural of children years reasonably of tender continue to be foreseeable. Their instincts repeatedly ages have been too observed over the to elude common knowledge. responsiveness Their to allurement has existed before day Trojan horse; proclivity enough their climb to is old conception have been a contributive factor of the Darwinian theory; and, put it, they Lord Sumner are little barbarians who infancy prone trespass.”
in the wantonness of are And in Wytupeck City Camden, J., 25 N. at p. 464, the Court said: “Children innate climb, urge and to explore and to achieve.” See also Simmel N. J. Co., Coop 28 N. J., at 7.p.
Thus, it must be admitted that wherever children it gather may be reasonably anticipated that will they stones, throw and this without proof of actual prior occurrences of a similar at the site type of the accident. The Division Appellate such a recognized when probability it stated: that, prerequisite recovery, plaintiffs do not “While we hold aas required stone-throwing place during were to establish that took daylight hours, we note that there was evidence to this effect.” 84 Super., J.N. A it is foreseeable that someone time, at some may, fortiori be such injured by activity, natural it Im- though may be. plicit in the above statement is the conclusion that no proof of particular prior occurrences was to alert defend- necessary ant to the foreseeable danger wherever children gather, or small large groups, may be stone-throwing reasonably anticipated, that defendant should have such guarded against conduct at its and that the playground, to way effectively such an guard against occurrence would have been to provide supervisory personnel.
But the Division failed to consider apparently “foreseeability” infants, conduct of sense, this *6 should not of to necessity generate protect against risks created as a where, result thereof. is true especially as here, was occasioned plaintiffs injury by intervening, than a direct, rather cause of defendant’s breach of alleged e., i. its failure to The duty, provide supervisory personnel. defendant should not unless be liable its conduct has created or increased an unreasonable risk of harm from the interven Prosser et Torts, 49, cause. 266 It ing supra, p. seq. § has been stated that “the of care demanded of a person degree is occasion the resultant of three factors: the likelihood e., that his conduct others taken injure foreseeability], will [i. and balanced with the seriousness of the if it injury happens, which he must sacrifice to avoid the the interest O'Brien, risk.” F. 2d 612 Cir. Conway 1940), (2 reversed on other 312 U. S. See 2 grounds (1940.). James, Law Torts 16.9 and The Harper (1956). § Cf. Restatement, Torts, 291 (1934). § as to foresee- The to the solution of the inquiry key
(a) what a reasonably not what but actually happened, is ability would have foreseen as likely happen. prudent person “After the event prospective: is not but retrospective test fool; not of a it is But it is the hindsight even a.fool wise. deter- of the reasonable man which alone can is the foresight in Green, “Foreseeability Negligence responsibility.” mine Law,” L. Rev. 1417 (1961). 61 Colum. is governed part The amount of caution required
(b) harm which may seriousness of the be fore- at least as to harm be so may great require great The threatened seen. as to preclude negligence.” Harper “so caution, slight or human 16.9, activity 931. Yet every James, p. and § harm, it ever so risk of be inconsequential some involves of an the reasonable probability it is therefore remote, its remote proportions, than minor of other accident a duty. rise to should give which possibility, sacrificed to avoid what interest must be evaluating (e) scales the value placed must be risk there which the out of activity particular society act or negligent omission arose. Dangerous conduct be may reasonable if it useful enough effective precautions are disproportionately burdensome in terms of inconvenience. 2 Harper James, 16.9, Thus, 935. Genovay § v. Fox, 50 N. J. Super. 538, 551-552 1958), reversed on other grounds N. J. 436 the court (1959), stated a similar conclusion in a different factual complex: expense precautions, together “The inconvenience and with of such accompanying impediment necessary to the untrammeled access premises by customers, probability bodily outweighs so far harm to a business invitee from an to make it un- armed robber as reasonable, judgment, put trouble, proprietor in our *7 expense keep and business inconvenience of measures to effective criminal out.” In the case sub judice the absence of of very proof any minor, prior severe, let alone from injury stone-throwing serves to man, demonstrate that an even ordinary of knowing such infant would not like- activity, reasonably anticipate lihood of the accident which re- grave here occurred. Such moteness of serious possible injury the bene- weighed against fits received from the of availability facilities, and playground the probable of expense in employing supervisors sufficient numbers to such prevent any accident as here occurred, dem- onstrates the burden disproportionate which in the final analysis be borne tenants of this low- cost housing development. Furthermore, in light natural recognizable propensities of children, it cannot be said that defendant’s establishment of a its failure to furnish either created or guards increased the risk the children of the housing complex using play- would throw stones—the basic risk ground relied upon by rise a The risk of plaintiff give duty. children’s throw- stones is ever whether the children ing present, live in a low- with a development cost or whether housing playground, they homes reside one family play streets, vacant property. lots neighboring
A fair read conclusion, I opinion Division, is that a landowner is now liable not em his land instrumentalities which he condition of and the 3, but thereon, p. or leaves see authorities cited ploys also as well for the tortious of all infant third parties acts as tres the said lands with his whether knowledge, enjoying whether liability appends, licensees or invitees. This passers, unless body, the owner be a individual or a private public such measures prevent any such owner takes protective potential natural and instinctive acts of children as have the under such circum To rise to a injury. causing give children against stances landowners to protect would oblige such In imposing normal dangers ordinary living. the landowners’ full circle completed have we liability Jersey rejected Diglio to infants which was liability 145 ? Co., & 39 N. J. Light Super., Central Power herein con has been “foreseeability” to me that It seems for the extension a convenient vehicle strued so as to make it such exten fault doctrine. With without liability concur. sion of I cannot a test as the of such and uncertainty
The very vagueness its adoption a duty for imposing mitigates basis liability upon basing tort doctrine existing under our still Auth. Goldberg Housing While agreeing fault. is not determinative Newark, 38 J. 578 (1962), City of *8 least herein, persuasive, especially it is at the facts under a duty. of such imposition the arguments against the policy J., 589-591): N. at pp. stated therein (38 Court pro- vagueness of the is the inevitable consideration “The second ordinarily requires ascer- duty. a man able to posed that be Fairness duty jury’s is his verdict whether the of in advance tain * * * performed it. has whether he duty uncertainty when the to furnish as to there be would Not discharge the police protection what measures will and as to arises uncertainty respect exceptional duty, with also be there would extraordinary speculation so because of This is of causation. issue upon subject of men bent criminal of deterrence inherent guessing game quite to determine whether be It would ventures. mentality thug unknowable character of some unknown 576 have been deterred if owner had some or some additional furnished
policemen. protection not, police It must be remembered that does cannot, provide attacks, assurance all criminal and so the topic presupposes inevitably that be committed crimes will notwith- standing sufficiency question proximate of the force. of Hence the exceptional difficulty.” cause is bound to be related to judice, the facts sub reasoning, equally ap- plicable to the manifold of infant behaviorism. ingenuity as
Similarly cause, to “in question proximate itself an Torts, unfortunate term.” Prosser on 44, 318. p. § While the of proximate cause is one question generally for the v. N. jury, Nichols, J., 303; 31 at Rappaport p. Bacak 417, v. 4 it is a Hogya, 434 (1950), law on appeal whether there was sufficient evidence sustain determination that the defendant's failure jury's to pro vide supervisors was the cause of proximate plain tiff's injury. Co.,
In Kulas v. Public Service Elec. and Gas
41 N. J. 311
said,
this
at
(1964),
page
Court
317:
showing
plaintiff
prevail,
“In order for a
addition
negligent,
prove
negligence
defendant was
he must
the defendant’s
proximate
determining
was a
cause
his
the existence of
loss.
proximate cause,
inquire
must first
defendant’s
we
whether
conduct
Harper
plaintiffs’
James, op.
constituted
supra,
cause in fact of
&
cit.
loss.
p.
regarded
‘[A]n
20.2
1110.
§
act or an omission is not
as
particular
cause of
event if
event would have occurred with
Torts,
Prosser,
44,
219,
(1955).
§
out it.’
And as stated
220
Professor Beale:
just
happened
‘[I]f
the result would have
it did whether
perform
actor had done his
the failure
result, or,
words,
was not a factor in the
in other
did not cause it.’
Citing
Moore,
322,
629,
(Sup.
Vt.
A.
L.
A.
Sowles v.
26
21
R.
;
Fisheries,
1893)
400,
Ct.
Trident
Ford
232 Mass.
122 N. E.
Piqua
(Sup.
;
Morris,
1919)
Jud.
Ohio
Ct.
St.
120 N. E.
;
(Sup.
1918) Montgomery Light
[Jud.]
7 A. L. R. 129
Ct.
&
Charles,
C.,
(D.
1919).
D.
Water Power
v. Co.
577 gent.’ following See also the illustrations section. Our courts recognized principles. Line, the above Monaco v. Bus Comfort (E. Inc., Beyer 1946) ; White, J. L. 553 & 22 N. A. J. Super. (App. 1952) ; Transportation Co., Div. Lutz v. Westwood 1954).” 31 N. J. Div. See also Nichols, Rappaport J.,N. 203; supra, Prosser on Torts, 219, 221. pp. §
The proximate cause here is the failure to provide a sufficient number of guards to have prevented children from stones. throwing There is no basis on the record for a con- clusion that the failure to furnish one or more at a guards the size here involved was a substantial factor in bringing about plaintiff’s nor was there evi- injury; any dence as to how supervisors many would be required pro- tect against incident; such an nor was the jury given yardstick which to determine the above. Common so upon which knowledge, called, the jury would have to rely solve such more questions, speculation. than nothing resolution of that is not problem even remotely removed from factually surmise. on unsupportable cannot, It the record us, before said reasonably be to furnish failure guards anwas omission which without the accident would not have happened that the likelihood thereof would have been sub- reduced. stantially
Uor are the cases cited Division in sup- of its expansion port liability determinative. Hone so go as far does this Court instant case toward making landowner for strictly liable acts of third on his parties land, from for an distinguished liability caused injury dan- existing conditions that land. gerous Thus, v. City Camden, 25 N. Wytupeck was imposed injuries to infant trespasser who fence and climbed came into contact eight-foot with an uninsulated electric wire. Da Rocha v. New York City 109 N. Y. Housing Authority, S. 2d 263 (Sup. Ct. 1951), 728, 122 N. Y. affirmed S. 2d 397 App. (Ct. App. imposed 1953), liability Housing Authority for *10 an- by hit ridden injuries by bicycle sustained a child a child, supervision, of lack of but other because directly for children the in motion an attraction because defendant set much an area too on a hot in spray water shower (a day) children, and throng small to accommodate the gathering riders it knew to children from protect bicycle failed those stated walks in of its rules. The court (109 used the violation at 2d, N. Y. S. 265): duty defendant, may be, urged by was no to “It as tbe that there special provided,
supervise play areas, play area was but when this came, barely it accommodate crowd that and of a size that would the very roadway upon naturally bicycle on the which riders was dangers duty guard adequately go, to known children to the age gratuitously certainly arose when the itself defendant of tender by turning water, encouraging situation this created the special area.” localized crowd New Housing York Geigel City Authority, Y. S. affirmed 2d 891 A. D. 2d (Sup. 1962), Ct.
N. Y. S. 2d 257 the defendant had App. 1962), ample (Ct. the near notice that children were area using pedestrian area. play Liability walks as was imposed against and in favor an infant pedestrian who Housing Authority a child thus injured by playing, was ground constituted bases invitation to painted implied existence And, at this unsuitable location. inappropriate ball play Authority, Hansen New York City Housing finally, 2d 71 68 N. Y. S. Div. 1947), App. struck in the the corner of eye by plaintiff swing infant the defendant. The operated owned plajrground whether had a duty defendant open left question court but found a triable fact supervise playground, conditions of the playground to the physical respect with area). construction e., improper swing (i. a specific
Thus, provide play- the imposition informal athletic activities is without supervision ground and raises some fascinating questions legal precedent, direct an accident such ability anticipate as defendant’s as to herein infant sustained. Is de- plaintiff example: Eor fendant’s furnish supervisors dependent upon notice of ? Does the the num- prior injury upon duty depend ber of children who have access to utilize the or who play- Where, here, ground? the apartment complex houses ap- 1,300 children, whom, proximately some of with together other children in the neighborhood, patronize playground, what standard should be employed in the num- determining ber of guards and the hours when days and required they should be in attendance? If have been supervisors supplied *11 occurs, and an accident is that evidence prima facie protection hours of the inadequate? During day, what week, how many a weeks in days many how the during year, is it furnish ? necessary to In the lat- guards answering ter is it not “foreseeable” query, that children frequent the week, vacations, seven days at least during and not after dark daylight hours but as well? during short, how is the defendant the extent of apprised of its and what must it do ? In duty, liability to avoid Gold- J., berg we are told (38 that : p. 583) “* * * ultimately Whether a exists is of fairness. inquiry weighing relationship parties, involves of the the public risk, proposed of nature and the interest solution.” It seems to me that neither public policy nor fairness requires vague type duty here rather imposed, but dictate the opposite conclusion.
Piercing theoretical terms of “foreseeability,” “duty” and in cause” which “proximate the Appellate Division’s con- clusion couched, reveals that ratio real decidendi is in strict turn liability, which is bottomed in large part upon the doctrine among parties that involved in accident, the best able to party bear distribute the loss should be liable. doctrine risk-bearing, risk-distributing is predicated different upon radically from concepts the fault theory. The availability insurance is one beam which undergirds this thesis; yet developments recent in the insurance field have well be constructed may this edifice
demonstrated that years public in recent that knowledge sand. It is common If to obtain. more difficult has become insurance costly become so in instances obtainable, many premiums Also, incident the expense prohibitive. as to be almost and lands required to buildings improvements repairs of a the issuance as a condition to insurer prospective many reach of the financial beyond coverage has policy placed where insur- in those circumstances owners. It follows not dis- unavailable the risk is is, for purposes, ance practical cannot in a project tenants low-cost Surely housing tributed. nor can the distri- “deep pockets,” be as having categorized no answer to them. It is philosophy apply bution risk ob- the financial ability a landowner should have say most, land- if not many, The same applies tain insurance. will be affected this decision. owners who insurance, the ulti- Furthermore, availability despite herein- personnel the supervisory mate expense providing bodies public furnishing of all apartments after required rest the tenants of the upon apart- facilities must recreational latter can case Only the taxpayer. ment regime case, And even in that distribution of risk. there be true deprivation this decision result effect of might *12 children to the extent that such facilities for of recreational assume the voluntarily unwilling are unable or bodies ? lawby them imposed upon hereinafter of supervision reverse. I would therefore in this dissent. joins
Justice Hall Weintraub, Justice and Justices For affirmance—Chief Francis, and Sciiettino—5. Jacobs, Proctor For reversal—Justices Hall and Haneman—-2.