Vega by Muniz v. Piedilato

Decision Date23 June 1998
PartiesSamuel VEGA, an Infant by his Guardian ad Litem, Migdalia MUNIZ, and Migdalia Muniz, Individually, 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, Community Affairs Department, Division of Housing, John Doe, Richard Roe, ABC Corp., and XYZ Corp. (the Last Four Names Fictitious as the True Identities are Unknown), Defendants.
CourtNew Jersey Supreme Court

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

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

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

The opinion of the Court was delivered by


We granted certification, 149 N.J. 139, 693 A.2d 109 (1997), to consider whether our decision in Brett v. Great American Recreation, Inc., 144 N.J. 479, 677 A.2d 705 (1996), modified the infant-trespasser rule as formulated in section 339 of the Restatement (Second) of Torts (1965) (Restatement ), and whether, under that formulation, the negligence of the trespassing child is double counted, first to determine whether a duty exists on the part of the landowner and again to reduce or eliminate an award for the minor. We conclude that our holding in Brett did not modify the Restatement and that there is no double counting. We, therefore, affirm the judgment of the Appellate Division dismissing the minor's claim.


Because the case arises on defendants' motion for summary judgment, we accept the facts alleged in a light most favorable to the minor claimant. Plaintiff, Samuel Vega, 1 was fourteen years old at the time of this incident. On the evening of October 30, 1991, he and two friends were on the roofs of adjoining three-story apartment buildings located at 685 State Street ("685"), owned by Robert Piedilato, and 687 State Street ("687"), owned by Bruce and Wayne Puff, in Perth Amboy. It was "Mischief Night," and the boys were throwing tomatoes at cars on the street. The children entered 685 through an unlocked door. They walked to the third floor and went out on the roof through an access-way secured by only a plastic bag. Once on the roof of the building, they could move freely from the roof of 685 to the roof of 687. The owner of 685, Piedilato, was fully aware that it was common for children to enter his apartment building and access the roof.

Between the two buildings there is an irregularly shaped air shaft running the full height of the building. At its widest point, the air shaft measures fifteen feet. There is a short parapet on the 687 side of the air shaft but none on the other side. Samuel Vega had not been on the roof of the two apartment buildings prior to that night. It was dark when he went on the roof.

As the youths were throwing tomatoes from the roof of 687, a police car turned onto State Street. Fleeing from the police, the children ran toward the back of the building. As Samuel reached the area of the air shaft, he tripped and fell into it. He suffered devastating injuries and had to be air-lifted from the bottom of the air shaft by helicopter. He suffered paralysis and brain damage. He was unable to recount what happened that night. The Court has since been informed that Samuel passed away on May 18, 1997.

The trial court granted summary judgment in favor of defendants, ruling that "an air shaft between two buildings is a condition which is apparent even to children and the risk of falling in the shaft should be fully realized." The court characterized plaintiff's action as one of "recklessness and bravado [that] does not fall under the terms of [the infant-trespasser clause]."

The Appellate Division held that plaintiff had established that defendants knew or should have known children were trespassing on the roof but that plaintiff had failed to establish that the air shaft posed an unreasonable risk or that Samuel did not appreciate the full extent of the risk of the air shaft. In its reported opinion, the Appellate Division held that "a jury could not rationally conclude that Samuel did not fully 'realize' the risks involved in running 'within the area' of this patently obvious danger." Vega v. Piedilato, 294 N.J.Super. 486, 498, 683 A.2d 845 (1996).


Plaintiff contends that this Court's decision in Brett requires that we now modify the infant-trespasser rule. Plaintiff argues that under the negligence analysis of that rule the Court should consider the foreseeability of the danger to define the scope of the landowner's duty. The Court should consider the infant's perception of the danger only to the extent that it would reduce plaintiff's ultimate recovery. Plaintiff argues that the rule adopted by the Appellate Division uses the minor's perception of risk in defining the landlord's duty in a manner similar to the outmoded and discarded concept of contributory negligence.

Traditional concepts of landowners' tort liability impose on possessors of land "no duty of care other than to refrain from willful and wanton injury toward trespassers." Diglio v. Jersey Cent. Power & Light Co., 39 N.J.Super. 140, 144, 120 A.2d 650 (App.Div.1956). Over time, "the protective fortifications of [these] early common-law principles" were weakened. Id. at 143, 120 A.2d 650. Judge Jayne described the change as a "battle" at the "heavy gates which for centuries have protected the traditional immunities of the possessors of land." Id. at 145, 120 A.2d 650.

At common law, courts define the extent of a landowner's tort liability toward a party injured due to a dangerous condition on the property by first determining the status of the injured party on the land:

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.

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 v. Fox & Lazo Realtors, 132 N.J. 426, 433, 625 A.2d 1110 (1993) (citations omitted).]

Although the injured party's status as an invitee, licensee, or trespasser defines the extent of a landowner's tort liability, foreseeability is one constant that plays a significant role in fixing a landowner's duty:

As in other tort contexts, ... the overriding principle governing the determination of a duty is the general tort obligation to avoid foreseeable harm to others. Thus in a landowner-liability case decided nearly a half-century ago, we said that "[t]he basis of liability is the foreseeability of harm, and the measure of duty is care in proportion to the foreseeable risk." Just last term we noted the settled principle that "the common-law classifications of persons on land should be applied flexibly in assessing the landowner's general tort obligation to avoid foreseeable harm to others."

[Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 534, 688 A.2d 1018 (1997) (quoting Brett, supra, 144 N.J. at 508, 677 A.2d 705) (Stein, J., dissenting) (citations omitted).]

As our society developed, the court-created formulations that were so crucial to the analysis of landowners' tort liability became increasingly difficult to apply to new and complex relationships between landowners and those on their property. These new relationships required modification of the traditional categories. A generation ago, Justice Stewart wrote, in Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630-31, 79 S.Ct. 406, 410, 3 L. Ed.2d 550, 554-55 (1959), that

[t]he distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism. In an effort to do justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create subclassifications among traditional common-law categories, and to delineate fine gradations in the standards of care which the landowner owes to each. Yet even within a single jurisdiction, the classifications and subclassifications bred by the common law have produced confusion and conflict. As new distinctions have been spawned, older ones have become obscured. Through this semantic morass the common law has moved, unevenly and with hesitation, towards "imposing on owners and occupiers a single duty of reasonable care in all of the circumstances."

[Footnotes omitted.]

The glacial pace of the law has not yet traversed the "morass" of common-law classifications. But as our industrial society has developed, concerns about children and the great probability of harm to children from dangerous conditions of land

led many courts and the Restatement to reject, in the case of children, the premise on which the occupier's special immunities rested, i.e., a judgment that full utilization of land required immunity even at the expense of the lives and limbs of people, and to substitute the more flexible test of negligence which would...

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