Mayer v. Housing Authority of Jersey City, A--653

• Decision Date: 30 June 1964
• Docket Number: No. A--653,A--653
• Parties: William MAYER, an infant, by his guardian ad litem, James Mayer and James Mayer, individually, Plaintiffs-Respondents, v. HOUSING AUTHORITY OF the City of JERSEY CITY, a body corporate and politic of the State of New Jersey, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 411

84 N.J.Super. 411

202 A.2d 439

William MAYER, an infant, by his guardian ad litem, James Mayer and James Mayer, individually, Plaintiffs-Respondents, v. HOUSING AUTHORITY OF the City of JERSEY CITY, a body corporate and politic of the State of New Jersey Defendant-Appellant.

No. A--653.

Superior Court of New Jersey Appellate Division.

Argued March 16, 1964.

Decided June 30, 1964.

Robert E. Tarleton, Jersey City, for appellant (Beggans & Keale, Jersey City, attorneys).

Janet W. Freeman, Newark, for respondents (Fred Freeman, Newark, attorney).

Before Judges GAULKIN, LEWIS and LABRECQUE.

The opinion of the court was delivered by

LABRECQUE, J.S.C. (temporarily assigned).

This is an appeal from a judgment based upon a jury verdict entered in the Law Division in favor of the plaintiffs and from an order denying defendant's motion for judgment notwithstanding the verdict.

Defendant Housing Authority of the City of Jersey City, hereinafter referred to as the Authority, owns and operates Currie Woods Gardens, a housing project in the City of Jersey City. The parents of the infant plaintiff were tenants in the project and, at the time of the accident, had been residing there for a period of approximately 1 1/2 years. The project consisted of seven buildings housing 711 families having between 1200 and 1300 resident children under the age of 18 years. It contained certain play areas, the one here involved consisting of a paved area near its center, a portion of which was marked out and used as a baseball diamond.

On April 4, 1961, at approximately 1:30 P.M., the infant plaintiff William was playing baseball with a group of about ten boys. Approximately 100 to 150 children were in the general area at the time. They had been playing for over an hour, and one of them had just finished his turn at bat when the infant plaintiff walked over and bent down to retrieve a bat which was lying between home plate and first base. At this time the baseball was somewhere in center field, to which it had been hit by the previous batter. As plaintiff was straightening up from retrieving the bat, something hit him in the left eye. The impact caused him to scream, spin around and fall to the ground. The ultimate result of the injury was the removal of the eye.

No daytime recreational supervision was provided by the Authority. However, the Jersey City Recreation Department detailed two of its employees to supervise recreational activities on the premises between 6 and 9 P.M., on a five-day week basis. The Authority also employed three Sullivan Agency guards to keep order on the premises. Two of these men were on duty from 3 to 11 P.M., and the third from 6 P.M. until 2 A.M. The Jersey City police patrolled in the neighborhood, but only entered the project when called. Additional facts will be referred to Infra.

Defendant moved for dismissal at the end of the plaintiffs' case and again for judgment at the close of the entire case. R.R. 4:51--1. Both motions were denied. After the verdict in favor of plaintiffs, defendant made a motion for judgment notwithstanding the verdict, which was likewise denied. R.R. 4:51--2.

Defendant's grounds for reversal are, in substance, that: (1) plaintiffs failed to establish that the infant plaintiff was injured by a thrown stone; (2) there was no breach of any duty owing to plaintiff; (3) the incident complained of was not reasonably foreseeable, and (4) it was not proximately related to the alleged negligence charged.

We turn to consideration of the first point raised. The mere fact that no one specifically saw a stone strike plaintiff's eye was not fatal to recovery. Cf. Pfeifer v. Standard Gateway Theater, 259 Wis. 333, 48 N.W.2d 505, 507 (Sup.Ct.1951). If the circumstances were such as to take the case out of the realm of conjecture and within the field of legitimate inference from established facts, a Prima facie case was made out. What was required was that plaintiffs establish the probability, as distinguished from mere possibility, that the injury was caused by a thrown stone as alleged. Flexmir Inc., v. Lindeman & Company, 4 N.J. 509, 514, 73 A.2d 243 (1950); Hansen v. Eagle Picher Lead Co., 8 N.J. 133, 141, 84 A.2d 281 (1951). Proof to a certainty was not required. Callahan v. National Lead Co., 4 N.J. 150, 155, 72 A.2d 187 (1950). See also Mazzietelle v. Belleville Nutley Buick Co., 46 N.J.Super. 410, 417, 134 A.2d 820 (App.Div.1957).

In the instant case, while there was no direct evidence introduced that the cause of William's injury was, in fact, a thrown stone, there was sufficient circumstantial evidence from which the jury could have concluded, on grounds of probability, that he was indeed struck in that manner. It was not disputed that William was injured at the time and place in question. Something struck him in the left eye. A sharp rock with blood on it was found nearby. He was not struck by the ball, since it was in the vicinity of center field while he was between home plate and first base. It is not suggested what other object could have struck him and escaped detection. Compare McManus v. New Jersey Water Co., 22 N.J.Super. 253, 261, 91 A.2d 868 (App.Div.1952).

Defendant next contends that even if the jury found that the infant plaintiff was struck in the manner claimed, it was error to submit the question of defendant's negligence to the jury. In support of this contention it is urged that there was no duty owing the infant plaintiff, that the incident which occurred was not reasonably foreseeable, and that the alleged breach of duty was not proximately related to the accident.

Initially, it is to be noted that the area in question is one over which the landlord retained control. It was designed for the use to which it was being put at the time of the happening of the accident. the rule is well settled that a landlord owes to tenants and their children a duty of reasonable care as to such portions of the premises. Doud v. Housing Authority of Newark, 75 N.J.Super. 340, 344, 183 A.2d 149 (App.Div.1962). Duty signifies conformance to a reasonable standard of legal conduct in the light of the apparent risk. Wytupeck v. Camden, 25 N.J. 450, 461, 136 A.2d 887 (1957); McKinley v. Slenderella Systems of Camden, N.J., Inc., 63 N.J.Super. 571, 581, 165 A.2d 207, 88 A.L.R.2d 1101 (App.Div.1960). Negligence arises from a breach of such duty and is relative to the time, place and circumstances. It is tested by whether the reasonably prudent person would recognize and foresee and unreasonable risk of harm to others. The standard of care is the conduct of persons of ordinary prudence under the circumstances. McCabe v. N.J. Turnpike Auth., 35 N.J. 26, 35, 170 A.2d 810 (1961). Notwithstanding the defendant's public nature, its liability for negligence must be adjudged on the principles of law applicable to private owners of property. Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 581, 186 A.2d 291 (1962).

The case was submitted to the jury upon the issue of whether defendant had exercised ordinary care in the manner in which it maintained and operated the recreation area in question. The jury was called upon to determine whether the occurrence in question could reasonably have been foreseen and whether it was a proximate result of defendant's lack of due care.

The negligence asserted here was not limited to lack of adequate supervision, as suggested by defendant in its brief, but was related more specifically to the fact that, with knowledge of dangerous conditions in the area, defendant, by omitting to take protective measures, failed to exercise reasonable care. Since reasonable care connotes care commensurate with the foreseeable risk of harm, we turn to consideration of the evidence bearing thereon.

As has been pointed out supra, the recreation area in question was located in the middle of the project. A four-foot cyclone fence, built to shut off adjacent grassy areas, virtually surrounded it. The area had a permanent hard surface, and it was on a portion of this that the baseball diamond had been marked off. The infant plaintiff testified that both prior to and on the date of the accident he had noticed many stones on the ball field, some little and some as big as golf balls. He had seen boys throwing stones around the baseball diamond on many occasions, the last time being two weeks prior to the accident. Other witnesses corroborated the presence of stones on the baseball diamond and testified that it was a regular occurrence to see children throwing them at one another. One witness testified that there was a garden alongside the baseball area which contained rocks which children were in the habit of throwing onto the baseball diamond. Another witness, who was one of the first to get to plaintiff and had observed stonethrowing by two nine-year-old boys about an hour before the accident, testified that he had never seen anyone clean up the area as far as the stones or rocks were concerned.

There was substantially no contradiction of this line of testimony. The deposition of Mr. Flesey, defendant's managing agent for the project since May 1960, which was read by plaintiff, was to the effect that, prior to the accident he had observed stones, sometimes as many as 50, around the ball field. He testified:

'Question: And did you ever see any of the children or any of the boys or adults prior to April 4, 1961 throw stones about the ball park area?

Answer: Yes.

Question: And how many times prior to April 4, 1961 have you seen that?

Answer: That I wouldn't know. My office does not face the play area, so I wouldn't be in a position to see it unless I were walking through the project site, you see.

Question: How often would you walk through the project site onto the ball park area during the week?

Answer: Sometimes twice a week.

Question: And have you seen the boys playing ball in that area?

Answer: Yes.

Question: And you have seen boys throw stones around...