Harris v. Mentes-Williams Co.

• Decision Date: 02 March 1953
• Docket Number: MENTES-WILLIAMS,No. A--96,A--96
• Citation: 95 A.2d 388,11 N.J. 559
• Parties: HARRIS et al. v.CO., Inc.
• Court: New Jersey Supreme Court

Page 559

11 N.J. 559

95 A.2d 388

HARRIS et al. v. MENTES-WILLIAMS CO., Inc.

No. A--96.

Supreme Court of New Jersey.

Argued Feb. 9, 1953.

Decided March 2, 1953.

Harold A. Price, Morristown, for appellants (G. Gerson Isenberg, Butler, attorney).

James B. Emory, Jersey City, for respondent (Emory, Langan & Lamb, Jersey City, attorneys; James J. Langan, Jersey City, on the brief).

The opinion of the court was delivered by

WACHENFELD, J.

The infant plaintiff, through his guardian Ad litem, sues to recover damages for injuries sustained in an accident occurring on October 19, 1951. His father sues Per quod.

The defendant, a contractor, was using a bulldozer to excavate and grade a lot owned by the St. Joseph's Roman Catholic Church, immediately adjacent to the Echo Lake Public School in West Milford Township. The child, six years of age, attended the school and on the day in question, some time during recess, after being excused by his teacher, fell into the excavation made by the defendant and was found lying in the bottom of a furrow three or four feet below the grade of the property line.

The area had been used by the children attending the school as a playground for many years and the defendant's employee, the bulldozer operator, was aware of the presence of the children upon the premises.

The pretrial order framed the issues as follows:

'Plaintiffs charge negligence by reason of defendant's failure to safeguard a dangerous and hazardous condition, well knowing the proximity of the school yard and the fact that minor children customarily played thereon.

'Defendant concedes that it was engaged in grading a parking lot for St. Joseph's Roman Catholic Church immediately adjacent to the school property and that a difference was thereby created in the grade levels, and that the infant plaintiff fell and sustained injury, but it denies that any duty wss owed by it to the infant plaintiff * * *.'

The trial court dismissed the plaintiffs' action and on appeal the Appellate Division 23 N.J.Super. 9, 92 A.2d 498, affirmed by a divided vote, thus giving the right to pursue the appeal taken.

There is no attack upon or quarrel with the rule enunciated in Strang v. South Jersey Broadcasting Co., 9 N.J. 38, 86 A.2d 777 (1952), but the controversy centers rather upon its applicability to the circumstances Sub judice.

The majority in the Appellate Division thought (23 N.J.Super. 9, 92 A.2d 500) 'To have permitted the submission of this case to the jury would have been an unwarranted extension of the doctrine of the Strang case and those (cases) cited therein,' while the dissenter could not 'distinguish the applicability' of the same case and held it controlling, concluding there should be a reversal.

Before discussing the issue, however, we note the court expressed the view that the bulldozing operation, having been carried on for about six weeks during the school term, 'created a condition of a constantly changing grade of the land which must have been obvious even to young children attending school and it does not appear that they lacked the ability to realize the risk of coming within the area of operation.'

If this imputes or was intended to denominate either an assumption of risk or contributory negligence, we cannot subscribe to the thought that it was such as a matter of law because of the tender age of the child. We are aware of no authority supporting the conclusion intimated.

The majority in the Appellate Division reasoned the instrumentality did not cause the accident but rather 'it was the change in the contour of the land caused by the bulldozer as it moved across the land' and the change so wronght was not a condition which the contractor or his employee knew or should have known 'or which it realized or should have realized to be one involving an unreasonable risk of death or serious bodily harm to children standing in the position of the infant plaintiff.'

The respondent says: 'There was no use by defendant of a dangerous agency which had the slightest causative effect upon the unfortunate injury to the infant plaintiff.' But we perceive no distinction in the principle between a dangerous instrumentality on the land and a dangerous condition of the land created by an instrumentality.

The rationale of the Strang case, supra, was that the use of a dangerous instrumentality gave rise to a foreseeable risk of harm. Here the condition of the land as changed by the defendant gave rise to the foreseeable risk of harm. Quoting again from the Strang case, supra (9 N.J. 38, 86 A.2d 780):

'The basis of liability is the foreseeability of harm, and the measure of duty is care in proportion to the foreseeable risk. An act in disregard of this obligation is a remediable misfeasance.'

Granting the plaintiff was not an invitee on the church property but a licensee, the rule still prevails. The question here is not as to the duty of the defendant toward a person of mature years but the duty in respect to a child.

'Very few of the rules that regulate the conduct of a man with his fellow could be applied with the least show of reason to his intercourse with children. It is the legal duty of every one dealing with a child to protect it against its own indiscretion.' Danbeck v. N.J. Traction Co., 57 N.J.L. 463, 31 A. 1038, 1039 (Sup.Ct.1895), cited and followed in Miller v. Oscar Schmidt, Inc., 100 N.J.L. 324, 126 A. 309, 310, (E. & A.1924), where the...