Strang v. South Jersey Broadcasting Co.

• Decision Date: 03 March 1952
• Docket Number: No. A--6,A--6
• Citation: 86 A.2d 777,9 N.J. 38
• Parties: STRANG et al. v. SOUTH JERSEY BROADCASTING CO.
• Court: New Jersey Supreme Court

Page 38

9 N.J. 38

86 A.2d 777

STRANG et al. v. SOUTH JERSEY BROADCASTING CO.

No. A--6.

Supreme Court of New Jersey.

Argued Sept. 10, 1951.

Reargued Jan. 21, 1952.

Decided March 3, 1952.

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

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

The opinion of the court was delivered by

HEHER, J.

The question here is whether the defendant landowner in possession is liable in tort for negligence for injuries sustained by plaintiffs in these circumstances:

On January 15, 1949, the infant plaintiff, then one month less than six years of age, entered unfenced lands on Mt. Ephraim Avenue near the intersection with Olympia Road in Camden, owned and maintained by defendant for the operation of its radio station WKDN, and suffered severe burns when his clothing was inflamed by a fire set by defendant's janitor to consume waste paper and other combustible matter gathered in defendant's administration building situate about 30 feet away. Five or ten minutes after kindling the fire, the janitor returned to the building, leaving the fire unattended, and remained there, performing other duties, until he heard the infant plaintiff's cries of anguish some 15 minutes later. He found the child on the ground at the 'still smoldering' fire, his clothing aflame. The fire was small in area, about two feet in diameter; the burning materials were not confined within an incinerator or other receptacle. And the janitor had not been provided with fire-extinguishing equipment. The locus comprised approximately 30 acres in a 'heavily travelled,' 'built-up' and 'thickly populated' area containing also 'a lot of stores and miscellaneous business establishments.' Besides the administration building, itself a small structure, defendant maintained a radio antenna tower on the tract, both constructed four or five months prior to the day of the mishap. There was no other building or structure on the land. Plaintiffs' residence was at 1632 Olympia Road, facing defendant's lands, not far from the radio tower and administration building. The tract had been entirely vacant prior to the erection of these structures. There was no posted notice identifying the ownership or forbidding the longstanding use of the premises by the neighborhood children for play and recreation. The lands had been used by children living nearby, ranging in age from 4 or 5 years to 14 or 15 years, 'more or less continually as a place on which to play'; there were 'ball-games there, boys riding on bicycles, and playing generally, fishing in the creek' on which the lands abutted; it was 'commonly used for that purpose, and still is'; the children used the lands 'as a playground' and 'for a shortcut back to the creek and over to the Pike.' This was all known to the janitor, who also acknowledged that such use of the premises did not meet with objection by the defendant; and so it was open to the jury to find that such user was had with defendant's full knowledge and acquiescence.

Defendant moved for a directed verdict at the close of plaintiffs' case. The motion was denied. Defendant thereupon rested without adducing evidence. The jury returned a verdict for plaintiffs. On rule to show cause, the award made in the parent's action Per quod was reduced, and accepted by him as reduced. The Appellate Division of the Superior Court affirmed the consequent judgment. 10 N.J.Super. 486, 77 A.2d 502 (1950). And the case is now here by certification at defendant's instance.

The insistence is that negligence is an omission of duty in doing or forbearing, and there was here no duty laid upon the defendant possessor of the land to guard the infant plaintiff 'against intrusion into this fire,' and such conclusively appears as a matter of law. The point is premised on the want of an invitation to enter the lands, express or implied, and so the absence of the duty of reasonable care incident to that relation or the condition or instrumentality or agency by which the infant plaintiff came to harm. And it is urged that, even though the particular possessor of land was under the duty of reasonable eare grounded in invitation, there was no default in that regard.

But the case is ruled by the principle of Piraccini v. Director General of Railroads, 95 N.J.L. 114, 112 A. 311, 36 A.L.R. 294 (E. & A.1920). There, according to the factual preface to the opinion, land of the defendant railroad company enclosed only by a 'guard fence' where it abutted a public street was used in part as a 'playground.' Adults and children 'without let or hindrance' entered 'the playground portion of the property, and crossed the property by a pathway which had been used by the public for over 40 years.' The railroad maintained a signal repair machine shop on the lands. One of its employees, pursuant to orders, started a fire near the repair shop for the purpose of clearing the land of dry leaves. The plaintiff's decedent, a child of five years of age, 'was discovered not far from the playground on or near the property, 'all in flames. " The burns proved fatal. Invoking the doctrine of Van Winkle v. American Steam Boiler Co., 52 N.J.L. 240, 19 A. 472 (Sup.Ct.1890), the Court of Errors and Appeals held that liability for the fatal happening did not depend on invitation, but was grounded in 'responsibility for a dangerous agency.' It was affirmed that fire had always been deemed 'a dangerous as well as a beneficent agency, to be handled with care,' and that 'setting fire to dry grass in a populous town near a pathway and playground frequented by school children' constituted a 'dangerous act.' Citing the stringency of the early English law that he in whose house or chambers a fire originated, whether by negligence or mere accident, was responsible for injuries occasioned by its spread to other premises, extended by the King's Bench in 1697 to fires kindled in an owner's close, Mr. Justice Swayze declared that, while the English rule had not had full acceptance, it was then settled in New Jersey that 'the one who sets a fire and is negligent in setting or guarding it is liable if damage...