Imre v. Riegel Paper Corp.

• Decision Date: 11 January 1957
• Docket Number: No. A--471,A--471
• Parties: Joseph James IMRE, Plaintiff-Appellant, v. RIEGEL PAPER CORPORATION, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 289

43 N.J.Super. 289

128 A.2d 498

Joseph James IMRE, Plaintiff-Appellant, v. RIEGEL PAPER CORPORATION, Defendant-Respondent.

No. A--471.

Superior Court of New Jersey

Appellate Division.

Argued Nov. 26, 1956.

Decided Jan. 11, 1957.

Frank G. Schlosser, Newton, for appellant (Mackerley & Friedman, Newton, attorneys).

Robert Shaw, Newark, for respondent (Shaw, Pindar, McElroy & Connell, Newark, attorneys).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

JAYNE, J.A.D.

During his lunch hour at midday on May 28, 1951 the plaintiff, a young man of 33 years of age, became the victim of a most unfortunate and exceedingly injurious and painful mishap. In the pursuit of our present appellate function we must accredit his testimonial narrative of the conditions and circumstances accompanying and surrounding the misfortune.

Adjacent to the Delaware River in the village of Milford, Hunterdon County, the defendant has a tract of land upon which it maintains its manufacturing plant. Approximately one-quarter of a mile southerly from its factory it has during several years utilized a portion of a large open area contiguous to the bank of the river as a site for the surface incineration of the debris and waste products of its manufactory. The useless materials were currently transported to the location by means of motor trucks and there ignited by its servants.

The area of which we speak is situate between the river and Frenchtown Road, along the westerly side of which highway extends a wire fence of the defendant with a gate through which the trucks enter and then traverse a winding roadway on the property to the dumping locality neighboring the river bank.

As a result of this practice, the so-called 'dump' had reached a length and breadth of some 300 feet, and its surface an elevation of 10 to 15 feet above the level of the river at its adjacent bank. The sections which were thought to be burned out were covered by 'fly ash,' coal ash, from the mill's boilers.

The plaintiff was one of the many employees of the defendant regularly engaged in service in the chemical mix department in the defendant's factory. His lunch hour recess from work was from 12 noon until 1 p.m. He customarily supplied his own box of lunch. The atmosphere in the factory and in its immediate vicinity was permeated by a gaseous aroma of chlorine, said he, and when the weather was propitious it frequently became his recreational convenience during the recess hour to take his car containing his lunch and fishing rod and bait, travel to and through the company's land to which reference has been made, to the shore of the river where food would to him be more palatable and fishing more refreshing.

Such was his chosen pursuit during the noon hour of May 28, 1951. He had motored from the factory southerly on Frenchtown Road, entered the open gate and parked his vehicle near the dumping area whence he proceeded on foot to cross a section of the dump which from his observations had apparently burned out and its ash surface solidified. He had arrived close to the river's edge when the surface of the dump caved in beneath him, submerging his body up to the waist in a pit of unextinguished hot embers. He sustained serious bodily injuries. His resultant medical expenses and wage losses are said to approximate $12,000.

To this summary of the characteristic aspects of the mishap should be added the supplementary information that the plaintiff, conceiving that the defendant was legally accountable to him for the cause and harmful consequences of the disaster, petitioned the appropriate administrative bureau for the allowance of the statutory workmen's compensation. The Deputy Director of the Division of Workmen's Compensation resolved that in the factual circumstances disclosed by the evidence, the accident did not arise out of or in the course of the petitioner's employment and dismissed the petition. No appeal was taken from that determination.

The present action was thereupon instituted and prosecuted in the Law Division of the Superior Court, Warren County, in the endeavor to establish the common law liability of the defendant for the alleged negligent causation of the mishap and its injuries consequences to the plaintiff as a member of the public.

At the conclusion of the introduction of the testimony by and on behalf of both parties, the court in response to a motion made by the defendant's attorney granted final judgment in favor of the defendant, which was entered on March 19, 1956 and from which the plaintiff now appeals.

A feature of the appeal relates to the effectiveness in the present action of the fact findings of the deputy director in the proceedings conducted in the Workmen's Compensation Bureau. Following the dismissal of the compensation claim, counsel for the company applied to the court to augment the pretrial order in the present action to embody an assertion of the defenses that (1) 'The judgment of the Workmen's Compensation Bureau as to plaintiff's relationship to defendant and his status upon the lands of the defendant at the time of the accident is Res adjudicata of those issues in this case'; (2) 'that plaintiff's right of recovery, if any, against defendant for his injuries was in the Workmen's Compensation Bureau, whereby this Court is without jurisdiction to award damages.'

On the bases of those proposed defenses an accompanying motion was made for a summary judgment in favor of the defendant. Proposed amendment (1) was granted; amendment (2) was denied. The application of the defendant for a summary judgment in its favor was denied 'without prejudice to defendant to renew the same at or during the course of the trial.'

It may be promptly stated that the contention that the adjudication in the Compensation Bureau forbade the prosecution of the present action at law occasions no serious cogitation. Indeed, the prior adjudication supports the maintenance of the common law action. Where there is a right to compensation under the statute, the remedy thereby afforded is exclusive, but where the injury or the circumstances of its occurrence do not come within the embracive terms of the act, the compensation legislation does not constitute a bar to a common-law suit for compensatory damages. Smith v. International High, etc., Co., 98 N.J.L. 574, 120 A. 188 (E. & A.1923); Downing v. Oxweld Acetylene Co., 112 N.J.L. 25, 169 A. 709 (Sup.Ct.1933), affirmed 113 N.J.L. 399, 174 A. 900 (E. & A.1934); Estelle v. Board of Education of Borough of Red Bank, 26 N.J.Super. 9, 26, 97 A.2d 1 (App.Div.1953), modified on other grounds, 14 N.J. 256, 102 A.2d 44 (1954); 2 Larson, Workmen's Compensation, § 65.10. Cf. Wilford v. Sigmund Eisner Co., 13 N.J.Super. 27, 80 A.2d 222 (App.Div.1951).

The basis of the Bureau's determination was that at the time of the occurrence of the accident the petitioner was not engaged in the pursuit of his employment by virtue of a then existing relationship of employer and employee. True, the deputy director did expressly resolve that the petitioner was where he 'had no right to be' under his employment.

The pivotal questions addressed to us for solution implicate the amplitude of the duty of care owed by the defendant to the plaintiff in the conditions, situation, and circumstances disclosed by the evidence, and, secondly, the existence of competent evidence, if any, which might rationally cause fair-minded jurors honestly to differ concerning the defendant's alleged infraction of that duty. The conventional considerations governing a motion for a judgment at the conclusion of the introduction of the evidence are inventoried in Gentile v. Public Service Coordinated Transport, 12 N.J.Super. 45, 78 A.2d 915 (App.Div.1951).

Yes, we recently discussed the so-called 'attractive nuisance doctrine' in its transformed application to injured infant 'tolerated trespassers' in Diglio v. Jersey Central Power & Light Co., 39 N.J.Super. 140, 120 A.2d 650 (App.Div.1956), but that decision seemingly has little Factual relevancy here except to illustrate that the modern, more pragmatical, decisional law regarding the protection of certain classes of intruders on the lands of another is reducing the precedential impressiveness of the much earlier decisions, and shrinking the former immunities of the possessors of land.

In the present instance the plaintiff was not allured to enter the defendant's premises by the burning debris, nor was he an infant. However, the doctrine enunciated in Van Winkle v. American Steam-Boiler Co., 52 N.J.L. 240, 19 A. 472 (Sup.Ct.1890), relative to the responsibility for the maintenance of a dangerous agency is familiar. The concept that human safety, even that of trespassers, is of more serious concern than unrestricted freedom in the use of land has achieved progressive ascendancy in our social policy and responsively in the reformation of our statutory and decisional law. In general, the evolution has been toward placing upon the owner or occupier of land a legally recognizable duty of care in the artificial uses of the premises commensurate with the demands of reasonable foresight for harm. See, Strang v. South Jersey Broadcasting Co., 9 N.J. 38, 45, 86 A.2d 777 (1952); Taylor v. New Jersey Highway Authority, 22 N.J. 454, 126 A.2d 313 (1956); Tahan v. Wagaraw Holding Co., 28 N.J.Super. 436, 101 A.2d 38 (App.Div.1953), certification denied 14 N.J. 599, 103 A.2d 651 (1954); cropanese v. Martinez, 35 N.J.Super. 118, 113 A.2d 433 (App.Div.1955); Hoff v. Natural Refining Products Co., 38 N.J.Super. 222, 233, 118 A.2d 714 (App.Div.1955); Prosser on Torts (2d ed., 1955), pp. 432 et seq.; 2 Harper and James, on The Law of Torts (1956), pp. 1435 et seq.

Those recent opinions in our jurisdiction have made hospitable references to the legal responsibility of the owner and occupier of land expressed in §§ 334 to 339 inclusive of the Restatement of the Law of...