Simmel v. New Jersey Coop. Co.

• Decision Date: 21 November 1957
• Docket Number: No. A--430,A--430
• Citation: 136 A.2d 301,47 N.J.Super. 509
• Parties: William Arthur SIMMEL, an infant by William Herman Simmel, his guardian ad litem, and William Herman Simmel, individually, Plaintiffs-Respondents, v. NEW JERSEY COOP. COMPANY, a corporation of the State of New Jersey, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 509

47 N.J.Super. 509

136 A.2d 301

William Arthur SIMMEL, an infant by William Herman Simmel his guardian ad litem, and William Herman Simmel individually, Plaintiffs-Respondents, v. NEW JERSEY COOP. COMPANY, a corporation of the State of New Jersey, Defendant-Appellant.

No. A--430.

Superior Court of New Jersey Appellate Division.

Argued Nov. 4, 1957.

Decided Nov. 21, 1957.

Jesse Moskowitz, Jersey City, for plaintiffs-respondents.

Edward V. Ryan, Newark, for defendant-appellant.

Before Judges CLAPP, JAYNE and HUGHES.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

Defendant appeals from a judgment of the Hudson County Court entered in favor of the infant plaintiff in the sum of $20,000 and in favor of his father in the sum of $7,500. The action was brought by the plaintiffs as a result of severe burns received by the infant from an open fire on certain vacant lots belonging to defendant, on which the infant was trespassing.

Twenty-one days before the accident, defendant acquired title to a number of lots, all fronting on one street and within the bounds of one block in Hoboken, including not only the vacant lots referred to, which were not fenced in, but also others which were fenced in, containing a building. The vacant lots were located just across the street from a large housing project containing over 700 families, including plaintiffs and perhaps 1,000 children, and the children were 'always,' 'all the time,' on them. 2 Harper and James, Torts, 1451 (1956).

There was testimony that various vehicles, including refuse trucks of the Department of Public Works of Hoboken, dumped rubbish and junk on the vacant lots both before the acquisition of title and thereafter, at least to the date of the accident. There was testimony, too, that practically every day this rubbish was set on fire by the men driving the trucks or sometimes by children, and that the fires were then left to burn and smolder, with no one to tend them. As a result of one fire--not a large fire--in which wood and rubbish were burning, including apparently an old bed and mattress, the infant plaintiff, then four years of age, sustained his injuries.

Defendant denied knowledge of the fires and of the dumping on those lots. However the jury could have found from the testimony that one of defendant's officers saw the property a few months before the acquisition of title. In fact, its then place of business was only ten blocks away. At some time prior to the accident, defendant started to move its business from there to the new location, but had not finished doing so when the boy was hurt. Indeed, the business was not actually in operation at the new site until 13 days thereafter.

Defendant's first point is that no landowner should be charged with liability to trespassing children because of fires on his land, unless By his own act he authorized the fires or permitted their continuance. The point was raised at the trial on defendant's motions for the dismissal of the case and thereafter on its motion for a new trial. Defendant also relies on the court's charge to the jury, but its objection to the charge was so vague as not to have brought to the court's attention either this matter or any question as to the language used there.

The jurisprudence of the past gave to the occupier of land a special privilege to be careless. But today the broad tendency of the law is to impose upon him, as upon other members of society, a duty to exercise reasonable care to avoid injury to others. Taylor v. New Jersey Highway Authority, 22 N.J. 454, 463, 126 A.2d 313 (1956); Harper and James, supra, 1440. This tendency to subject him to that duty, with all the elasticity inherent therein, wars not only against the severe traditional views governing an occupier's liability to trespassers and licensees, but also against the somewhat mollified, yet rather particularized, set of rules of the Restatement of Torts, §§ 329--342, which would limit his liability to certain specified cases. However, it is not to be forgotten that this branch of the law is in the process of development, and that a number of questions involved in that development have thus far not been answered.

One such question is presented here. Traditionally the courts have been reluctant to put an occupier of land under any duty to trespassers with respect to a natural condition thereon. However, they have been somewhat less reluctant in connection with an artificial condition of his own creation, even though at the time of the accident it had become static--and still less so with respect to an activity of his actually in process while the trespassing takes place. But it cannot but be noticed, looking at the matter from an A priori standpoint, that natural conditions shade into dormant artificial conditions created by him in the past; and, see Mistretta v. Alessi, 45 N.J.Super. 176, 181, 182, 131 A.2d 891 (App.Div.1957), the latter in their turn shade into his current activities. Where, as here, the activity is of third persons, neither caused by the occupier nor for his benefit, it would seem to lie nearer in this contrived spectrum to a natural condition than to a past or present activity of his.

In this connection defendant relies heavily on Gallagher v. Frederick, 366 Pa. 450, 77 A.2d 427 (Sup.Ct.1951), also a case where an infant was burned by fires on a vacant lot. That case apparently attempts to press on to a still finer distinction between a landowner's activity and his inactivity, namely, between 'a condition * * * which the owner Allows to exist' on his premises and the condition involved in that case, namely, of fires occurring 'daily,' which he Tolerates. For the purposes of our decision here, we pass over the cases holding that upon proof of continued toleration a jury question arises as to whether there has been an implied permission. Imre v. Riegel Paper Corp., 24 N.J. 438, 446, 132 A.2d 505 (1957); Strang v. South Jersey Broadcasting Co., 9 N.J. 38, 45, 86 A.2d 777 (1952); cf. Restatement, Torts, § 330, comment b; Prosser, Torts (2d ed.), 438, at n. 15, citing Pennsylvania cases. For we think that under the law of New Jersey the land occupier may be held liable for injuries to trespassing children resulting from an artificial condition of which he is aware, whether or not, by his own act, he caused or continued the condition or acquiesced therein. The duty which all landowners owe to the children of society, while at play on their lands, extends at least this far.

Authority for this conclusion is to be found in Taylor v. New Jersey Highway Authority, 22 N.J. 454, 126 A.2d 313 (1956), supra. The court there was dealing with an adult plaintiff who, if she was not an invitee, seems to have approximated more nearly the status of a licensee than that of a trespasser. Nevertheless, the court, assuming her to be either a trespasser or a mere licensee (22 N.J., at page 462, 126 A.2d at page 317), held the defendant to a standard of 'reasonable care' (22 N.J., at page 465, 126 A.2d at page 318). There a jury question was found to exist because of a breach of duty in connection with a natural condition, namely, the failure to clear snow and ice off the steps of an apartment house, and also in connection with sub-standard work of third persons in constructing the steps before defendant took possession of the house. Defendant acquired control of the house but a few weeks before the accident, and, so far as actually appears, it secured no rent or any benefit whatever from it. Incidentally, in reaching its broad conclusion as to the adult plaintiff there involved, the court relied upon a leading decision in this State dealing with trespassing children, Harris v. Mentes-Williams Co., Inc., 11 N.J. 559, 95 A.2d 388 (1953); it observed (22 N.J., at page 463, 126 A.2d at page 317) that the defendant in Harris was held to 'a duty of ordinary care.'

In certain other jurisdictions recovery has been had on behalf of child trespassers because of an artificial condition on defendant's land, caused by third persons and tolerated by defendant. Couer d'Alene Lumber Co. v. Thompson, 215 F. 8 (9 Cir. 1914); Smith v. Otto Hendrickson Post 212, American Legion, 241 Minn. 46, 62 N.W.2d 354, 359 (Sup.Ct.1954); Dehn v. S. Brand Coal & Oil Co., 241 Minn. 237, 63 N.W.2d 6 (Sup.Ct.1954). As to natural conditions, see Prosser's view of the law. Prosser, supra, 443. But cf. Restatement, Torts, § 339, which declares a possessor of land to be liable only for artificial conditions 'he maintains'; Gallagher v. Frederick, 366 Pa. 450, 77 A.2d 427 (Sup.Ct.1951), supra; Botticelli v. Winters, 125 Conn. 537, 7 A.2d 443 (Sup.Ct.Err.1939), which, however, turns on the question whether the possessor could reasonably be said to have anticipated harm and whether he had taken reasonable measures to safeguard the children.

The remaining contentions presented in conjunction with the first point in the case involve two other questions which are still open and undecided in this branch of the law. First, is the duty of a land occupier to child trespassers of such a nature as to call upon him, within reason, to inspect the land so as to ascertain whether there are conditions thereon involving an unreasonable risk of harm to children? See Restatement, Torts, § 339(b) (for the definition of the words 'should know,' see § 334, comment b); 2 Harper and James, supra, 1459; contra, Prosser, 445, at n. 89. As to a defendant's duty to inspect his land so as to ascertain whether there is a condition thereon involving an unreasonable risk to licensees, cf. Taylor v. New Jersey Highway Authority, 22 N.J. 454, 126 A.2d 313 (1956); Harper and James, supra, 1471 n. 2; Mistretta v. Alessi, 45 N.J.Super. 176, 131 A.2d 891 (App.Div.1957), where the court did not have to deal with this question. Second, is a land occupier's duty to child trespassers of such a nature as to call upon him, within reason, to inspect his...