VEGA BY MUNIZ v. Piedilato

713 A.2d 442, 154 N.J. 496, 1998 N.J. LEXIS 602

• Court: Supreme Court of New Jersey
• Decided: June 23, 1998
• Status: Published

Opinions

The opinion of the Court was delivered by

OHERN, J.

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.

I

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 plaintiffs 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).

II

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 plaintiffs 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 ease 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, modem 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, ie., 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 balance these competing interests on a case to case basis.

[Fleming James, Jr., Tort Liability of Occupiers of Land: Duties Owed to Trespassers, 63 Yale L.Rev. 144, 164 (1953) (footnotes omitted) (hereafter, James).]

In Strang v. South Jersey Broadcasting Co., 9 N.J. 38, 45, 86 A.2d 777 (1952), New Jersey joined the growing number of jurisdictions that accepted section 339 of the Restatement of Torts, which imposes liability on a possessor of land for bodily injury sustained by an infant trespasser.

The current formulation of the infant-trespasser doctrine appears in Restatement section 339:

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

(e) 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.

A claimant must establish each element of section 339 to support a primarfacie case. Blackburn v. Broad St. Baptist Church, 305 N.J.Super. 541, 547, 702 A.2d 1331 (App.Div.1997); Coughlin v. U.S. Tool Co., 52 N.J.Super. 341, 342, 145 A.2d 482 (App.Div.1958), certif. denied, 28 N.J. 527, 147 A.2d 305 (1959). The application of section 339 is not mechanical. Courts must consider the unique factual setting of each case in deciding whether plaintiff has made a sufficient showing to raise a jury question for each of the five elements. Blackburn, supra, 305 N.J.Super. at 547, 702 A.2d 1331.

In some jurisdictions the court alone determines, under subsection (c), whether the minor’s appreciation of the risk eliminates any duty on the part of the landowner. 3 J.D. Lee & Barry A. Lindhal, Modem Tort Law § 30.06 (rev. ed.1988). In New Jersey, however, the subsection (c) consideration is rarely a question of law:

Realization of the risk involved means something more than mere awareness that “you could get hurt.” It connotes appreciation of the danger involved rather than mere knowledge of the existence of the condition itself____ [I]f it is fairly debatable whether the child, considering his age and degree of immaturity, really comprehended the extent of the danger to which he was exposing himself, a jury question as to realization is presented.

[Haase v. North Hudson Scrap Iron Corp., 62 N.J. 263, 266, 300 A.2d 561 (1973) (citing Prosser & Keeton on Torts § 59 (4th ed.1971)).]

We have never adopted a per se rule that a child above a certain age should be deemed to be aware of the risk. Judge Conford explained the analysis:

[Tjhere is no place for the assumption in law that any particular child, in the absence of conclusive evidence thereof, has shed his immaturity at any particular age. In this domain the law may wisely find its guide in the general sense of mankind. Nor should there intrude the notion that at any given age the child “should know better.” We are here necessarily dealing in pragmatics, not theories of improvement of child behavior. Close curtailment of liability by law will not dull the instinct of the child for carefree play. But the fair application of the rule of liability on a realistic basis will encourage the adoption of safety measures by industrial and other land occupiers and subserve the intent of the rule that the risk of foreseeable injuries to children be borne by those best able on the whole to prevent them.

[Hoff, supra, 38 N.J.Super. at 234, 118 A.2d 714.]

Accord McColley v. Edison Corp. Ctr., 303 N.J.Super. 420, 427-28, 697 A.2d 149 (App.Div.1997) (“[Tjhere is no precise age at which [section] 339 liability no longer applies to a minor ... [for] age is but one factor, along with the nature and obviousness of the risk and the likelihood that the risk would be appreciated by a fourteen-year-old under similar circumstances.”)

In this case, because the minor child suffered so devastating and paralyzing an injury, it is impossible to assess whether he “really comprehended the extent of the danger to which he was exposing himself.” Haase, supra, 62 N.J. at 266, 300 A.2d 561. The trial court was frank to acknowledge this: “Due to the inability to testify, we cannot objectively say that plaintiff appreciated the risk; however, we can say the roof did not present an unreasonable dangerous condition to trespassing children. This does not meet ... [subsection] (b) of section 339.”

As noted, in finding for defendants, the Appellate Division relied on plaintiffs inability to satisfy subsections (b) and (c). More specifically, the Appellate Division held that plaintiff failed to show that the air shaft posed an “unreasonable risk of death or serious bodily harm to such children,” or that Samuel, because of his age, failed to appreciate the risk involved with the condition. Vega, supra, 294 N.J.Super. at 497, 683 A.2d 845. Relying on comment (j) to section 339, the Appellate Division reasoned that a condition does not involve an unreasonable risk to a trespassing child if the child, considering the child’s age and the obviousness of the danger, can be expected to appreciate it.

The duty of the possessor, therefore, is only to exercise reasonable care to keep the part of the land upon which he should recognize the likelihood of children’s trespassing free from those conditions which, though observable by adults, are likely not to be observed by children, or which contain the risks ... which are beyond the imperfect realization of children. It 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, § 339 comment i.]

Plaintiff acknowledges that under Coughlin it is likely that under normal daylight conditions the irregularly shaped air shaft would not in itself create an unreasonably dangerous condition. In Coughlin, a fourteen-year-old boy had fallen while jumping from roof to roof. He admitted that he was aware of the risk and danger involved in jumping from roof to roof in the dark. Coughlin, supra, 52 N.J.Super. at 346, 145 A.2d 482. Plaintiff attempts to distinguish Coughlin, arguing that an open air shaft becomes unreasonably dangerous when the landlord knows or has reason to know there was unrestricted access to the rooftops and that children were using the rooftops at night when darkness prevented them from seeing the full extent of the irregularly shaped air shaft and from seeing how to get around it safely. Thus plaintiff argues that a jury question was presented under subsection (b) of section 339.

Before considering application of the Restatement factors, we digress to consider the issue of comparative negligence.

Ill

The corollary to the proposition that there is no “precise age” at which a child “should know better” is the proposition that there is a proper place in the law of landowners’ liability to impose upon minors the responsibility to exercise due care for their own safety. What a minor “should have done” is assessed under the doctrine of comparative negligence. There is no impermissible double counting in that assessment because the two concepts are distinct. This is because

the test in determining negligence ... is an objective and not a subjective one. Therefore, whether the actor did or did not appreciate the danger of the situation may be of no materiality.

The law of attractive nuisance is but a phase of the law of negligence. It necessarily follows that if the plaintiff child is guilty of contributory negligence [the] comparative negligence statute applies.

[Nechodomu v. Lindstrom, 273 Wis. 313, 78 N.W.2d 417, 418 (Wis.1956).]

At first this proposition appears counter-intuitive but on closer analysis it is correct:

There is, therefore, no disharmony in permitting the jury to find first that defendant was negligent as determined by [the section 339 test], and yet find that the particular child injured had, because of his own fault, forfeited his right to recover.

There is ample authority for the position we have taken.... At [2 Harper & James, Torts § 27.5.] page 1455, note 57 [it is said]:

The question of the child’s contributory negligence is a separate problem which must be carefully distinguished from that of the land occupier’s duty.... Unfortunately the issues are often confused. Where contributory negligence bars recovery anyway, the confusion does not affect the result. But in cases in which the plaintiff may not be contributorily negligent, it would be important to keep the issues distinct.

[Pocholec v. Giustina, 224 Or. 245, 355 P.2d 1104, 1108-09 (Or.1960) (quoting 2 Harper & James, Torts, § 27.5, at 1455 n.57 (1956)).]

See also Colls v. City of Chicago, 212 Ill.App.3d 904, 156 Ill.Dec. 971, 571 N.E.2d 951, 978 (1991) (holding that to charge comparative negligence in trespassing-child case is proper). A court instructing a jury should explain that assessing whether a plaintiff appreciated the risk requires an evaluation of the claimant’s subjective state of mind; assessing whether a claimant failed to use that degree of care which persons of the same age should exercise for their own safety requires an objective evaluation of the actor’s conduct.²

As noted, the courts below concluded as a matter of law that plaintiff had failed to make out a prima-facie case under subsections (b) and (c) of section 339. It is a close question. To begin with, that Samuel can be considered a trespasser is not clear. One of the youths who accompanied him that night was a tenant in 687. Would that tenant have been a trespasser? Would his guest have been a trespasser? Was the roof an authorized common area of the budding? The traditional common-law classifications based on status are rather difficult to apply in the setting of complex social relationships involving tenants and a multiple-family housing unit. The classifications are not always ideally suited to lead us to the point where responsibility may fairly be sorted out. This ease is not the case in which to revisit those classifications as our concurring member would have us do.

IV

In another case, we might differ with the Appellate Division’s treatment of subsection (c), the child’s appreciation of the risk (it appeared to have been an objective analysis rather than a subjective analysis) and its treatment of subsection (b) (whether the properties posed a foreseeable risk of harm to the minors). Had one of these youths tripped and fallen into the air shaft during the conduct of a school assignment to observe an eclipse of the moon, a jury question might be presented concerning failure of the landlords to take precautions to guard against such an eventuality.

We believe, however, that this judgment should be af- . firmed. Although the complaint alleges that Samuel was walking near the air shaft, the undisputed evidence from the one witness who clearly observed the fall is that the accident occurred when Samuel tripped while attempting to make a running leap over the air shaft from one building to the other.³ We are satisfied that even if a court were convinced that all of the elements of section 339 had been established under the principles set forth in Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 666 A.2d 146 (1995), no reasonable jury could find that the plaintiffs injuries were proximately caused by the conditions of the property. Plaintiff advanced numerous allegations of negligence: that the downstairs door of 685 should have been kept securely locked, that access to the roof from 685 and 687 should have been controlled by a fire-safety door with an alarm that would sound when the door was opened from the inside, and that the air shaft should have been fenced. We do not believe that a fair-minded jury could find that the lack of security measures was the cause of the fall. The cause of the accident and injuries was the plaintiffs unsuccessful effort to leap this divide. Even when parties have a special relationship to others requiring them to act to prevent foreseeable harm, the issue of proximate cause is always present. See Cowan v. Doering, 111 N.J. 451, 545 A.2d 159 (1988) (holding that causation would be issue in case of incompetent patient leaping from hospital window).

We agree with the Appellate Division that nothing in Brett substantially modified the infant-trespasser rule. As the Appellate Division correctly noted, Brett “simply departed from the general rule applicable to adult trespassers because such a rule in the special circumstances of that case would have been unfair and unjust.” Vega, supra, 294 N.J.Super. at 501, 683 A.2d 845. In Brett, supra, the Court held that because the Legislature intended that the Ski Statute, N.J.S.A. 5:13-1 to -11, completely displace the traditional common-law classifications of landowner’s liability in the ease of recreational skiers and tobogganers and because the parties had agreed to try the case under the Ski Statute, the general classifications under the common law were inapplicable. 144 N.J. at 502, 677 A.2d 705. In dictum, the Court observed that whatever their classification might have been at common law, defendant would have owed the plaintiff at least a duty “to remove obvious, man-made hazards as soon as practicable.” Id. at 509, 677 A.2d 705.

In the ease of minors, the classifications are not arcane. We have distilled the essence of the doctrine thus:

Although a possessor of land generally is not obliged to keep his land safe for trespassers, an exception exists for those trespassers who are infants. Because children may lack sufficient discretion for their own safety, a possessor who maintains a dangerous condition may be liable to infants when they trespass on his land. For the infant trespasser rule to apply, a plaintiff must establish that: (1) the infant’s trespass was foreseeable; (2) an artificial condition existed on defendant’s property; and (3) the condition posed an unreasonable risk of death or serious bodily injury.

[DeRobertis v. Randazzo, 94 N.J. 144, 157, 462 A.2d 1260 (1983) (citations omitted).]

When applied flexibly, the common-law classifications provide a balanced method of assessing landowners’ liability for negligently inflicted harm to trespassing children.

The judgment of the Appellate Division is affirmed.

1 References to "plaintiff” encompass actions filed on behalf of the minor child, Samuel Vega, and by Migdalia Muniz, individually and as Guardian ad Litem.

2 Undoubtedly, some of the confusion has stemmed from the need to distinguish between the age, at common law, when children are rebuttably presumed to be incapable of contributory negligence, Bush v. New Jersey & New York Transit Co., 30 N.J. 345, 358, 153 A.2d 28 (1959), and the age when a trespassing child might no longer be considered of "tender years” for purposes of the "special rule” of Restatement section 339. Prosser & Keeton on Torts § 59 (5th ed.1984).

3 At their depositions, one of the two youths on the roof said that he did not see Samuel fall. The other testified as follows:

Q After you shouted to the others that the police were coming you said you started to run, is that right?

A Yeah.

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 Now, did you see Sammy fall?

A Yeah.

Q Where were you standing?

A I was in the back, we was running. Sammy was first, I was second.

Q ... Which way did he 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 both of you were running toward the big hole....

Q So as you were running now toward the big hole Sam Vega was in front of you, is that right?

A Yes.

Q Could you see Sam?

A Yeah.

Q How far away from you was he?

A He was here, I was right here in the back. (Indicating.)

Q Close enough to touch him?

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.