Vega by Muniz v. Piedilato

• Decision Date: 31 October 1996
• Citation: 683 A.2d 845,294 N.J.Super. 486
• Parties: Samuel VEGA, an infant by his Guardian ad Litem, Migdalia MUNIZ, and Migdalia Muniz, Plaintiffs-Appellants, v. Robert PIEDILATO, Bruce Puff and Wayne Puff, Defendants-Respondents, and City of Perth Amboy; Housing Authority, County of Middlesex; Housing and Community Development, State of New Jersey, and Community Affairs Department, Division of Housing, Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 486

294 N.J.Super. 486

683 A.2d 845

Samuel VEGA, an infant by his Guardian ad Litem, Migdalia MUNIZ, and Migdalia Muniz, Plaintiffs-Appellants, v. Robert PIEDILATO, Bruce Puff and Wayne Puff, Defendants-Respondents and City of Perth Amboy; Housing Authority, County of Middlesex; Housing and Community Development State of New Jersey, and Community Affairs Department, Division of Housing, Defendants.

Superior Court of New Jersey Appellate Division.

Argued Sept. 24, 1996.

Decided Oct. 31, 1996.

Eugene A. Cross, Wall, for appellants (Ramp & Renaud, attorneys; Ann L. Renaud, East Brunswick, on the brief).

Thomas D. Monte, Jr., Sea Girt, for respondent Robert Piedilato (Monte & Marriott, P.C., attorneys; Mr. Monte, of counsel; Frank E. Borowsky, Jr., on the brief).

William C. Carey, Morristown, for respondents Bruce and Wayne Puff (McElroy, Deutsch & Mulvaney, attorneys; Mr. Carey and John T. Coyne, on the brief).

Before Judges HAVEY, BROCHIN and KESTIN.

The opinion of the court was delivered by

HAVEY, P.J.A.D.

This personal injury action involves the application of the infant-trespasser rule under the Restatement (Second) of Torts § 339 (1963) and (1964) (Restatement ). Plaintiffs appeal from a summary judgment dismissing their complaint in favor of defendants Robert Piedilato and Bruce and Wayne Puff. While trespassing on Mischief Night, fourteen-year old plaintiff, Samuel Vega, fell into an air/light shaft between two three-story apartment buildings owned by defendants. In granting summary judgment, the motion judge concluded that the air/light shaft did not pose an "unreasonable risk" because it was an "obvious" danger. Concluding that the fall was an "act of youthful recklessness and bravado" on Samuel's part, the judge found that plaintiffs failed to satisfy clauses (b) and (c) of § 339. We agree and affirm.

Defendants owned two contiguous multiple-family dwellings on State Street in Perth Amboy; Piedilato owned number 685, and the Puffs owned number 687. Both buildings are three stories, approximately forty-feet high at their respective rooftops. The roofs are relatively flat, pitched only for drainage. The structures abut at the front and rear of the buildings, but an air/light shaft separates them in the middle of the common property line. The air/light shaft is irregular in shape and approximately fifteen-feet long. At its greatest width, the air shaft is approximately fifteen feet across. A twenty-inch high parapet surrounds the air/light shaft on 687 State Street; there is no parapet on the 685 State Street side of the shaft.

Samuel was nearly fifteen years old on the evening of October 30, 1991, "Mischief Night." He and two friends, Manuel Rodriguez and Jose Rodriguez, decided to throw tomatoes and eggs at cars from the roof of the Puff building (# 687), in which Manuel lived. Vandals had damaged the locking mechanism on the entrance to the Piedilato building (# 685), enabling the boys to enter it without difficulty. They gained access to the Piedilato roof via a missing roof-hatch door, breaking through a plastic bag which covered the opening. Once on the roof of the Piedilato building, they simply stepped onto the Puff building. After the boys ran out of eggs and tomatoes they left the roof to retrieve more. They returned to the roofs and were joined by another friend, Omar Pichardo. Omar left before the accident happened.

All of the boys, including Samuel, had crossed back and forth between the two roofs several times during the evening. Manuel stated that they crossed at the front and rear of the air/light shaft in order to avoid it.

Plaintiffs' expert, Joseph Triano, when asked whether the air/light shaft would have been observable to Samuel, testified "I can only presume that since they entered the roof at 685 and went to the roof of 687 that the air shaft is very obvious and that they would know that it was there." Plaintiffs' other expert, Herbert Feist, described the air/light shaft as "fairly substantial."

After being on the Puff roof for approximately three hours, Manuel spotted a police car and yelled to Samuel and Jose that the police were coming. They all ran to escape. According to Manuel, in order to avoid being seen from the rear of the building he and Samuel decided to jump over the air/light shaft near the middle of the roofs. Manuel's deposition testimony is as follows:

Q Where did you run?

A We were trying to jump that big hole to the other building.

Q So you were going to try and jump over the big hole?

A Yeah.

Q Why didn't you go to the front or the back where the roofs were touching?

A We went to the back, the police was coming, so we were like, "Yeah, he's coming." So the big hole, we jumped that big hole. We were scared.

....

Q So after you saw the police coming did you start running toward the back of the building?

A No, to the middle.

Q You started running toward the middle of the building?

A Yeah.

....

Q Which way did [Samuel] start running after you told him the cops were coming?

A To the big hole.

Q He started running toward the big hole?

A Yeah.

....

Q So you were right behind him. When he got to the big hole what did he do?

A He hit a bump, I don't know, a little bump, and he just fell down.

Q Well, I thought you said he was going to try and jump over the big hole.

A He was going to try, but he felt like a bump, so he fell.

....

Q So what you saw was [Samuel] tried to leap from the roof on the left of this picture to the roof on the right, but when he jumped he got his foot caught right here where you drew the X? ¹

A Uh-huh.

Samuel sustained severe injuries from the fall, including brain damage. As a result of his injuries, he was unable to be deposed.

The thrust of the deposition testimony and written reports of plaintiffs' experts was that there should have been a roof barrier separating the two buildings; the Piedilato building lacked adequate security and failed to comply with pertinent state and federal codes; and a high fence should have been constructed around the air/light shaft.

Piedilato testified at his deposition that he was aware people were gaining access to his roof, and admitted that his tenants had told him that children were playing there. He called the police in response to these complaints and "cut the bottom two rungs off the [fire escape] ladder so it would be more difficult to pull it down."

Wayne Puff denied any knowledge that children had been using his roof, but acknowledged he was concerned about drug activity on the rooftops. To prevent this, he installed locks on the entrance doors and roof hatch. He made monthly inspections of the building, including the roof. As a result of the inspections, he knew that the Piedilato building was not maintained as well as his, and that his roof could be accessed easily from the Piedilato roof. He did not, however, walk across to inspect that roof and therefore had no knowledge of the type of security provided for the Piedilato building.

In granting summary judgment, the motion judge concluded that plaintiffs failed to make a prima facie case under the Restatement, § 339, the so-called infant-trespasser rule. The judge determined that there were fact questions as to whether Piedilato knew or should have known that children were playing on his rooftop. By contrast, the judge noted that Wayne Puff had denied knowledge, and declined to adopt plaintiffs' theory that the Puffs had a duty to discover whether or not children were trespassing on the rooftop.

However, the judge found that, although the air/light shaft "obvious[ly]" posed a risk of serious bodily injury or death to children, that risk was not "unreasonable." Restatement, supra, at § 339(b). According to the judge, the risk of harm posed by a fall from the roof was so obvious that "a 14-year-old child can be expected to appreciate" it. He incorporated comment i of the Restatement, which provides that liability "does not extend to those conditions the existence of which is obvious even to children and the risk of which should be fully realized by them." Restatement, supra, at § 339, comment i. It was the judge's view that, based upon the undisputed facts, it would be "incredible" for Samuel not to have been aware of the air/light shaft.

I

Restatement, supra, § 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 utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Section 339 is an exception to the common-law rule immunizing the possessor of land from liability resulting from injury to the trespasser, absent willful or intentional conduct. Simmel v. New Jersey Coop. Co., 28 N.J. 1, 7-8, 143 A.2d 521 (1958). This exception is rooted in a "prudent and essential" accommodation of the landowner's right to use his property and society's interest in protecting the life and limb of its youth. Strang v. South Jersey Broadcasting Co., 9 N.J. 38, 45, 86 A.2d 777 (1952). Since our Supreme Court's decision in Strang, the Restatement's infant-trespasser rule under § 339 has been firmly entrenched in the law of this State. See Haase v. North Hudson Scrap Iron Corp., ...