McColley by McColley v. Edison Corp. Center

• Decision Date: 21 July 1997
• Citation: 697 A.2d 149,303 N.J.Super. 420
• Parties: Steven McCOLLEY, an infant, by his Guardian ad Litem, Susan McCOLLEY and Susan McColley, individually, Plaintiffs-Appellants, v. EDISON CORPORATION CENTER, Garden Homes Management and The Kaplan Organization, ABC Corporation (a fictitious business entity), Edison Property Corporation and Bankers Trust, Inc., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 420

303 N.J.Super. 420

697 A.2d 149

Steven McCOLLEY, an infant, by his Guardian ad Litem, Susan McCOLLEY and Susan McColley, individually Plaintiffs-Appellants, v. EDISON CORPORATION CENTER, Garden Homes Management and The Kaplan Organization, ABC Corporation (a fictitious business entity), Edison Property Corporation and Bankers Trust Inc., Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued May 28, 1997.

Decided July 21, 1997.

Francis E. Wilton, Woodbridge, for plaintiffs-appellants (Gill & Chamas, attorneys; Mr. Wilton, on the brief).

Joseph A. Gallo, Newark, for defendants-respondents Edison Corporate Center, Garden Homes Management Co. and The Kaplan Organization (Wilson, Elser, Moskowitz, Edelman & Dicker, attorneys; James C. Orr, Newark, of counsel; Mr. Orr, Mr. Gallo and Elizabeth R. Charters, on the brief).

Robert L. Lieberman, Westmont, for defendant-respondent Edison Property Corporation (Margolis Edelstein, attorneys; Mr. Lieberman, on the brief).

John E. Lamastra, Florham Park, for defendant-respondent Bankers Trust, Inc. (Scanlon & Heim, attorneys; Mr. Lamastra, on the brief).

Before Judges PRESSLER, STERN and WECKER.

The opinion of the court was delivered by

WECKER, J.S.C. (temporarily assigned).

Fourteen-year-old Steven McColley was riding a motorized bike on private property in Edison, New Jersey when he was caught by a wire cable strung two-and-one-half feet from the ground across the end of a paved roadway. The motion judge granted summary judgment to all defendants because he concluded that Steven was a trespasser to whom defendants owed no duty. We disagree. The motion judge erred in finding no duty either to warn plaintiff about a wire cable across a path; or to remove an existing cable; or to refrain from placing such a cable. Material questions of fact required that a jury determine whether any defendant breached a duty to Steven. See R. 4:46-2; Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540, 666 A.2d 146 (1995). Because there were factual questions about ownership and control of the property among the defendants, we reverse and reinstate the complaint against all defendants.

Plaintiffs Steven McColley and Susan McColley ¹ (plaintiff or Steven) appeal from an order denying reconsideration of summary judgments dismissing their complaint against all defendants for injuries Steven suffered in the accident. Plaintiffs contend that Steven should be deemed a "tolerated intruder" and therefore more akin to a licensee than a trespasser. See Restatement § 330, Comment C. The defendants argue that Steven was a trespasser to whom the property owner(s) owed only a duty to refrain from willfully injurious acts. The motion judge concluded that Steven was a trespasser, and apparently concluded that there was no willful injury and therefore no liability on the part of any defendant.

The property was owned or controlled by defendants Edison Corporate Center, Garden Homes Management and The Kaplan Organization ² until May 19, 1992, less than seven weeks before the accident. On that date Bankers Trust as mortgagee took title by deed in lieu of foreclosure. In accordance with its usual procedure, Bankers Trust immediately transferred title to its wholly owned subsidiary, defendant Edison Property Corporation. Edison Property held title on the day of the accident.

For purposes of this appeal, plaintiffs' factual contentions must be assumed. The cable ran between two pillars where the asphalt ended and a dirt road began. Steven and other young people had been riding motorbikes on the property, including the path where Steven was hurt, for about two years prior to this accident. Until the day of Steven's accident, neither he nor his riding companions had ever encountered wire across the path, nor had they ever been warned off the property or away from this road. There was evidence that the wire was not visible from a moving motorbike, that the defendants were aware that youngsters were riding motorbikes in the area, that there was no posted warning to keep off the property or the road, and certainly no warning of the wire barrier.

Our decision is informed by the Supreme Court's discussion of premises liability in several recent cases, emphasizing general principles of tort liability over traditional common law classifications. See Kuzmicz v. Ivy Hill Park Apts., Inc., 147 N.J. 510, 688 A.2d 1018 (1997) (landlord had no duty to protect tenant from assault on neighboring vacant lot); Brett v. Great American Recreation, Inc., 144 N.J. 479, 677 A.2d 705 (1996) (ski-area operator owed common law duty to tobogganers using lighted ski trail after hours); Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (1993) (real estate broker owed duty to visitor touring open house). Under either traditional analysis or general tort principles, one or more of the defendants owed Steven some duty.

Under traditional analysis, the duty owed by a landowner depends upon how the injured party is classified.

The traditional common law approach to landowner or occupier tort liability toward a person who has been injured because of a dangerous condition on private property is predicated on the status of the person on the property at the time of the injury. Historically the duty of the owner or occupier to such a person is gauged by the right of that person to be on the land. That status is determined by which of three classifications applies to the entrant, namely, that of a business invitee, licensee, or trespasser. E.g. Snyder v. I. Jay Realty, 30 N.J. 303, 153 A.2d 1 (1959).

An owner or possessor of property owes a higher degree of care to the business invitee because that person has been invited on the premises for purposes of the owner that often are commercial or business related. A lesser degree of care is owed to a social guest or licensee, whose purposes for being on the land may be personal as well as for the owner's benefit. The owner owes a minimal degree of care to a trespasser, who has no privilege to be on the land.

[Hopkins, supra, 132 N.J. at 433, 625 A.2d 1110.]

Under traditional analysis, even an adult trespasser, much less a child, is entitled to warning of a serious artificial danger.

The duty owed to a trespasser is relatively slight. A landowner, under most circumstances, has a duty to warn trespassers only of artificial conditions on the property that pose a risk of death or serious bodily harm to a trespasser. Renz v. Penn Cent. Corp., 87 N.J. 437, 435 A.2d 540 (1981); Restatement (Second) of Torts § 337 (1969). To the social guest or licensee, the landowner owes a greater degree of care. Although the owner does not have a duty actually to discovery latent defects when dealing with licensees, the owner must warn a social guest of any dangerous conditions of which the owner had actual knowledge and of which the guest is unaware.

[Id. at 434, 625 A.2d 1110.]

See also Restatement § 335, Comment c. It can hardly be disputed that the wire cable, strung as it was, created an artificial condition that posed a risk of serious bodily harm.

We held in two recent cases that a railroad owed a duty of care to known trespassers, and the duty went beyond merely refraining from intentional injury. Ocasio v. Amtrak, 299 N.J.Super. 139, 690 A.2d 682 (App.Div.1997) (adult walking on elevated tracks accessible by open stairway at abandoned station); Boyd v. Conrail, 291 N.J.Super. 608, 677 A.2d 1182 (App.Div.1996) (child crossing tracks at known shortcut between homes and school). In both cases a key fact was the defendant's awareness that others commonly made similar use of the property.

In applying traditional trespasser liability rules, New Jersey has long followed the infant-trespasser exception of the Restatement (Second) of Torts § 339 (1963) and (1964). See Vega by Muniz v. Piedilato, 294 N.J.Super. 486, 492, 683 A.2d 845 (App.Div.1996). Section 339 provides:

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

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, 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, and

(d) the...