Caroff v. Liberty Lumber Co.

• Citation: 369 A.2d 983,146 N.J.Super. 353
• Parties: David CAROFF and Genevieve Caroff, Plaintiffs-Appellants, v. LIBERTY LUMBER COMPANY, Defendant-Respondent.
• Decision Date: 01 February 1977
• Court: New Jersey Superior Court – Appellate Division

Page 353

146 N.J.Super. 353

369 A.2d 983

David CAROFF and Genevieve Caroff, Plaintiffs-Appellants, v. LIBERTY LUMBER COMPANY, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued Dec. 14, 1976.

Decided Feb. 1, 1977.

Gerald H. Baker, Hoboken, for plaintiffs-appellants (Baker, Garber, Duffy & Baker, Hoboken, attorneys).

Robert C. Pollock, Jr., Bloomfield, for defendant-respondent (Pollock, Kennedy & Brogan, Bloomfield, attorneys).

Before Judges CRANE, MICHELS and PRESSLER.

The opinion of the court was delivered by

PRESSLER, J.A.D.

Plaintiff David Caroff, a state park ranger employed by the Division of Forests and Parks in the New Jersey Department of Environmental Protection, appeals from an order of involuntary dismissal entered pursuant to R. 4:37--2(b) at the close of his case on liability.

Plaintiff brought this action against defendant Liberty Lumber Company (Liberty), seeking recovery for personal injuries he sustained in September 1971 as a result of Liberty's alleged breach of the duty it owed him as an occupier of land. The question specifically raised on this appeal is the nature of the duty owed by an occupier of land to a governmental official who is required to enter upon the premises during the course of the performance of his public duties and whose presence thereon is therefore attributable to legal privilege rather than to the occupier's invitation. The essential issue is whether such an official is an invitee to whom is owed a duty of reasonable care or, as the trial judge concluded, merely a licensee to whom the occupier owes the lesser duty of giving warning of known but hidden perils.

Viewing the evidence and the inferences which might be reasonably drawn therefrom most favorably to plaintiff, the jury could have found the following facts:

Plaintiff was assigned in June 1970 to patrol Liberty State Park in Jersey City, then consisting of a tract of approximately 260 acres in area forming a half-mile wide strip immediately adjacent to the Hudson River. A portion of the tract had been leased by the State to defendant pursuant to a special use permit enabling it to conduct thereon a salvage business in respect of the disused bulkheads and piers and their appurtenances which remained within the park area. Liberty's operations included the dismantling of these structures, the preparation of the salvaged timber into saleable units, and the conversion of the balance into wood chips and sawdust. Its use of the premises included, among other things, a mill area as well as a warehouse building, a portion of which it used for storing heavy machinery and equipment and a portion of which, by agreement with the State, was used by plaintiff as his ranger station and personal quarters. Access to the Liberty premises was rpovided by a public thoroughfare known variously as Caven Point Road and Burma Road, which joined an unpaved dirt road running across at least a portion of the premises and connecting, among other locations, the mill area and the warehouse building. The jury could also have found that the use of this dirt road by Liberty's heavy equipment and vehicles caused deep ruts therein, which it filled with sawdust impregnated with creosote, a wood preservative which had been used to protect the original piers. According to plaintiff's expert, creosoted timber is very slippery, especially when wet, and obviously not reasonably or properly usable as a road-filling material.

The jury could have further found that plaintiff's duties included the patrolling not only of the state-occupied park area, but also of all leased premises in order to assure that the lessees were complying both with the terms of their respective special use permits and with applicable state and local ordinances and regulations. Plaintiff, of course, was present daily on Liberty's premises, not only to regularly patrol and inspect them but also to use the ranger station, to which he returned several times a day to make a telephone report to his superiors. He inevitably was aware of Liberty's use of the creosoted sawdust on the roadway and of the hazard it created, and in fact complained about it on several occasions to Liberty's agents and reported this condition to his superiors. The roadway in question was used not only by plaintiff and Liberty's employees but also at least by Liberty's customers and by contractors retained by Liberty to repair its vehicles and equipment. The jury, finally, could have found that the accident occurred when plaintiff returned in his truck from a patrol in order to use the telephone in the ranger station. He parked the truck within a reasonable distance of the building, and despite his caution and care in traversing the slippery roadway, nevertheless fell, seriously injuring his left knee.

In granting defendant's motion for an involuntary dismissal based on this factual complex, the trial judge, relying on Snyder v. I. Jay Realty Co., 30 N.J. 303, 153 A.2d 1 (1959), initially held that the extent of the duty owed by an occupier of land to a person coming thereon is determined by the status of the person--that is, whether he is classifiable as an invitee, a licensee, or a trespasser. Analogizing plaintiff's status to that of a police officer or fireman, he concluded that plaintiff was a licensee and, therefore, barred from recovery by his admitted knowledge of the dangerous condition and the risk involved. We are satisfied that he erred, and that his error lay in categorizing plaintiff as a licensee rather than as an invitee.

Plaintiff, in seeking a reversal, first urges us to abolish the historical distinctions between the invitee, licensee and the trespasser and to substitute therefor a single rule of reasonable care and foreseeability of harm in the particular circumstances of each case. Plaintiff's argument is not without cogency, and we note that an increasing number of jurisdictions are taking just that approach to the resolution of negligence actions based on the defective condition of land. At least three have expressly done so because of the difficulties and artificialities which they have perceived to be involved in classifying the status of a public official injured on private property while performing surveillance, inspection or similar duties. See Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43 (Sup.Jud.Ct.1973), and Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (Sup.Ct.1971), so holding in respect of policemen, and Smith v. Arbaugh's Restaurant, Inc., 152 App.D.C. 86, 469 F.2d 97 (1972), Cert. den., 412 U.S. 939, 93 S.Ct. 2774, 37 L.Ed.2d 399 (1973), so holding in respect of a health inspector. And see, abolishing the distinction at least between licensees and invitees in other status contexts as well, Antoniewicz v. Reszcynski, 70 Wis.2d 836, 236 N.W.2d 1 (Sup.Ct.1975); Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (Sup.Ct.1968); Pickard v. City and County of Honolulu, 51 Haw. 134, 452 P.2d 445 (Sup.Ct.1969); Mariorenzi v. Joseph Diponte, Inc., 333 A.2d 127 (R.I. Sup.Ct.1975); Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639 (Sup.Ct.1972). And see, abolishing the common-law rules of status in respect of maritime law, Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). See also, Occupiers' Liability Act, 5 & 6 Eliz. 2, c. 31 (1957), abolishing in England the historical distinction between licensees and invitees. Representative of the rationale of these holdings is this persuasive reasoning of Chief Judge Bazelon in Smith v. Arbaugh's Restaurant, Inc., supra:

* * * (W)e are once again struck by the awkwardness of fitting the circumstances of modern life...