Haase v. North Hudson Scrap Iron Corp.

• Decision Date: 20 February 1973
• Citation: 62 N.J. 263,300 A.2d 561
• Parties: Gary HAASE, an infant by his guardian ad litem John Haase, and John Haase, individually, Plaintiffs-Appellants, v. NORTH HUDSON SCRAP IRON CORP., a corporation of the State of New Jersey, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 263

62 N.J. 263

300 A.2d 561

Gary HAASE, an infant by his guardian ad litem John Haase and John Haase, individually, Plaintiffs-Appellants, v. NORTH HUDSON SCRAP IRON CORP., a corporation of the State of New Jersey, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Jan. 8, 1973.

Decided Feb. 20, 1973.

Maurice B. McLaughlin, Jersey City, for plaintiffs-appellants (Edward J. Lynch, Union City, attorney).

William V. Roveto, Union City, for defendant-respondent (Moser, Roveto & McGough, Union City, attorneys).

PER CURIAM.

In this infant trespasser personal injury suit against the property owner, the trial court, at the conclusion of the presentation of evidence by the plaintiffs, took the case away from the jury and granted defendant's motion for a dismissal of the complaint. ¹ The Appellate Division affirmed in an unreported Per curiam opinion. This Court granted certification. 62 N.J. 67, 299 A.2d 65 (1972).

The infant-plaintiff Gary Haase, a 13 year old boy, was injured by a flying piece of metal propelled by a metal cutting machine located in defendant's scrap metal yard. Haase and several other boys had entered defendant's yard after the workmen had left for the day. One of the pieces of equipment in the yard was a scissor-type metal cutting machine. Apparently the electric power to the machine had not been turned off at the control point and the boys were able to activate it by pushing a starter button on the machine. Haase was standing about three feet away from the machine while another boy was cutting sundry metal objects when he was struck in the head by a piece of flying metal.

The sole issue involved is whether plaintiffs' proofs were sufficient to present a jury issue of liability. In infant-trespasser cases New Jersey has consistently applied the rule of liability set forth in 2 Restatement of Torts 2d, § 339 (1965); Simmel v. N.J. Coop Co., 28 N.J. 1, 143 A.2d 521 (1958). The provisions of section 339 of the Restatement pertinent to this appeal are as follows 'A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it * * *.'

In the instant case the trial court ruled that plaintiffs had failed to satisfy conditions (a) and (c) of section 339. It held (1) there was no evidence that defendant knew or had reason to know that children were trespassing in a way that involved the particular piece of equipment which was the danger; (2) it affirmatively appeared that the infant-plaintiff realized it was dangerous to start the machine or to be near it. The Appellate Division upheld the dismissal on the ground that the infant-plaintiff 'fully realized the machine was a source of danger and the fact that he was hurt in a manner he did not anticipate is immaterial.'

We conclude that a jury question was presented as to both matters and that a dismissal should not have been entered. R. 4:37--2(b).

Defendant's employees were aware of numerous after-hours acts of trespass and vandalism in the yard and had attributed them to juveniles. They had chased...