Strang v. South Jersey Broadcasting Co.

• Decision Date: 15 December 1950
• Docket Number: No. A--497,A--497
• Citation: 77 A.2d 502,10 N.J.Super. 486
• Parties: STRANG et al. v. SOUTH JERSEY BROADCASTING CO. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 486

10 N.J.Super. 486

77 A.2d 502

STRANG et al. v. SOUTH JERSEY BROADCASTING CO.

No. A--497.

Superior Court of New Jersey Appellate Division.

Argued Nov. 27, 1950.

Decided Dec. 15, 1950.

S. P. McCord, Jr., Camden, argued the cause for the appellant (Starr, Summerill & Davis, Camden, attorneys).

Gene R. Mariano, Camden, argued the cause for the respondents.

Before Judges JACOBS, EASTWOOD and BIGELOW.

The opinion of the court was delivered by

BIGELOW, J.A.D.

Should the defendant's motion for a directed verdict have been granted? The motion was made and denied when the plaintiff rested. Thereupon the defendant, without presenting any evidence, also rested, and soon the jury returned a verdict for the plaintiff in a very substantial sum.

The defendant owned a tract of 15 acres of land on Mt. Ephraim Avenue, close to the intersection with Olympia Road in Camden. There it had a broadcasting tower and a small administration building, but most of the tract was vacant land. On January 15, 1949, a Saturday, the defendant's janitor took waste paper and trash from the administration building and set it afire on the ground about 30 feet from the building. He then went back into the building to attend to other chores. Fifteen minutes or so later he heard screams and, running, out, found the infant plaintiff by the bonfire, with his clothes burning. The question that the court left to the jury was whether the defendant was liable for the injury to the child.

The defendant's land was unfenced and was commonly used by small boys living in the neighborhood as a playground, without objection by defendant. The janitor knew that boys often played on the property not far from where he set the fire, but he saw none around when he started the fire. The fire was a small one--described by one witness as about two feet in diameter. The Strang family, including the infant plaintiff, who was then six years old, lived in their home on Olympia Road, facing the defendant's property and separated from it by only the road and by vacant lots about 100 feet deep. The neighborhood is 'thickly populated.' Let us now turn to the law.

A landowner who invites another to come upon the premises, must use reasonable care to have his premises in a safe condition; but the landowner's only duty to a licensee or a trespasser is to abstain from acts wilfully injurious. Such is the general rule. Phillips v. Library Co., 55 N.J.L. 307, 27 A. 478 (E. & A. 1893). The rule was applied in the first of the turntable cases to come before our highest court, Delaware, L. & W.R.R. Co. v. Reich, 61 N.J.L. 635, 40 A. 682, 41 L.R.A. 831 (E. & A.1898), where it was held that one who places upon his land something which is of a character attractive to children and at the same time dangerous to them, does not thereby become chargeable with the duty of using care to keep them off the premises, or to protect them if they enter. The repudiation of the Dangerous attraction doctrine was reiterated in Friedman v. Snare & Triest Co., 71 N.J.L. 605, 61 A. 401, 70 L.R.A. 147 (E. & A. 1905).

Fifteen years later came Piraccini v. Director General of Railroads, 95 N.J.L. 114, 112 A. 311, 312, 36 A.L.R. 294 (E. & A. 1920). Defendant company had set fire to the grass on its land in order to clear it off, and a five year old child was burned to death. In an action under the Death Act, a verdict was directed for the defendant. The Court of Errors and Appeals reversed, holding that it was immaterial whether or not the child was on the company's property by invitation; that liability grew out of defendant's responsibility for a dangerous agency--fire. The test of liability was said to be whether injury to one of the class of which decedent was one, ought reasonably to have been anticipated. Holding that the child was such a one the court pointed out that the fire was set 'in the midst of a populous city, near a path frequented by the public for many years, with the acquiescence of the railroad company and frequented by school children; near also to land significantly called 'Playground. " Most of the cases cited by Justice Swayze, who wrote the opinion for the court, are illustrated by Van Winkle v. American Steam Boiler Co., 52 N.J.L. 240, 19 A. 472 (Sup.Ct.1890), and follow the rule that one who keeps a dangerous agency on his property must exercise great care to prevent its escape. They do not deal with the duty of a landowner to a licensee or trespasser. Two of the cited cases went further. Guinn v. Delaware & A. Tel. Co., 72 N.J.L. 276, 62 A. 412, 413, 3 L.R.A.,N.S., 988 (E. & A. 1905), held the defendant liable for death caused by a broken, highly charged wire, although decedent, at the time of contact, was a licensee or trespasser on land of a third person--but not on land of defendant. 'The case differs from one where a trespasser or licensee seeks to recover of the landowner. A landowner may, in fact, reasonably anticipate an invasion of his property, but in law he is entitled to assume that he will not be interfered with. His right to protect his possession and to use his property is paramount. It is these considerations which led this court to deny the liability of the defendant in the turntable cases. (Citations). The general rule is that a person is liable for those results of his negligence which are reasonably to be anticipated. The exemption of the landowner from liability as to trespassers and licensees is necessary to secure him the beneficial use of his land; but no reason exists for extending this exemption to the case where the rights of the defendant have not been interfered with.'

Meyer v. Benton, 74 N.J.L. 533, 65 A. 1023 (E. & A. 1906), was similar to the last case in that the accident occurred on property of a third person. The defendant was exonerated because of lack of proof that the presence of children at play should have been anticipated.

The exemption of the landowner, mentioned in the Guinn case, yields in Piraccini to the duty of care for a child, even though he be a trespasser, whose injury by the dangerous instrumentality, if care be not exercised by the landowner, ought to be foreseen.

Several more recent decisions have noticed Piraccini v. Director General. In France v. Lehigh Valley R. Co., 96 N.J.L 25, 114 A. 242, 243 (Sup.Ct.1920), Justice Swayze, after observing that injury to a mere trespasser need not be anticipated, said that 'a broader rule of liability where the defendant is dealing with a highly dangerous agency', had been approved in the Piraccini case. 'But the fundamental question is: Ought injury to the plaintiff to be reasonably anticipated?' Neff v. Daniel, 102 N.J.L. 422, 131 A. 900, 901 (E. ...