Cole v. Thompson, A--557

• Decision Date: 20 October 1953
• Docket Number: No. A--557,A--557
• Citation: 99 A.2d 817,27 N.J.Super. 561
• Parties: COLE et al. v. THOMPSON.
• Court: New Jersey Superior Court — Appellate Division

Page 561

27 N.J.Super. 561

99 A.2d 817

COLE et al. v. THOMPSON.

No. A--557.

Superior Court of New Jersey

Appellate Division.

Argued Sept. 28, 1953.

Decided Oct. 20, 1953.

Harry Green, Little Silver, for appellants (Louis M. Drazin, Red Bank, attorney).

Theodore D. Parsons, Red Bank, for respondent (Parsons, Labrecque, Canzona & Combs, Red Bank, attorneys; John Warren, Jr., Red Bank, of counsel).

Before Judges EASTWOOD, JAYNE and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.A.D.

The complaint here has to do with the action of the trial court in granting respondent's motion for dismissal which was made at the close of appellants' proof. The dismissal was predicated upon a determination that neither evidence of negligence nor of causal relation between respondent's conduct and the injury suffered by the infant appellant had been adduced.

The infant appellant sued on account of burns received because of a fire which had beem ignited on respondent's premises by her employee. The complaint charged that the infant was an invitee on the premises and that the employee was negligent in failing to guard the fire.

Respondent owns a tract of land known as Brookdale Farms in Lincroft, Middletown Township, Monmouth County, N.J. Originally the premises were used as a race horse farm. There were a number of small houses located thereon, some of which had been used by trainers and employees; there were also barns, a training stable and a race track. For some years prior to the event out of which the suit arose, Mrs. Thompson had rented these buildings to tenants, one of them being the infant's family.

There were at least 25 children living in the various buildings and the evidence indicates that they had the free run of the place for play purposes.

On December 1, 1951 one Burrows, a groundskeeper in respondent's employ, gathered a pile of leaves in a pebbled driveway near the training stable and set them afire. This was the usual site for such fires.

When the leaves were ignited, a number of children were playing football in the trainers' yard in another part of the premises. However, in a short time three or four of them appeared at the scene, one of whom was the infant appellant Jonathan Cole, aged 5 1/2 years.

Burrows had raked the leaves from the area around a tree located about 150 feet away. The fire was a good-sized one; according to one witness, it was about five feet in diamenter and about two or three feet high.

Burrows told the children four or five times to get away from the fire and to go home; also that he would tell their mothers if they did not obey him. But they ignored his command. He continued raking more leaves in the direction of the fire, never getting more than 50 feet away.

The children stood around the fire 'kicking the extra leaves' into it. Some of them had sticks and were poking at the blaze. No specific proof was produced to show exactly what young Cole did.

At a time when Burrows was 12 to 14 feet away from the fire and raking leaves toward it, he heard a scream and saw the boy's trousers ablaze. He dropped the rake and turned to the boy and beat out the fire.

In this posture of the case, the trial court agreed with the defense that as a matter of law there was a lack of evidence of negligence or causal connection between the fire and the youngster's burns. We must disagree.

A fire of this kind is a dangerous instrumentality and the defendant was under the duty of using care commensurate with risk of injury that inhered in it. Strang v. South Jersey Broadcasting Co., 10 N.J.Super. 486, 77 A.2d 502 (App.Div.1950) ; affirmed 9 N.J. 38, 86 A.2d 777 (1952); Davenport v. McClellan, 88 N.J.L. 653, 96 A. 921 (E. & A. 1916).

The duty of care imposed is stated in the Strang case, supra, to be

'That the possessor of land is liable for the reasonably foreseeable injurious consequences of the use of a dangerous agency on the land. Where an act carelessly done would be highly dangerous to the personal safety of others, the common law raises a 'public duty' of care commensurate with...