(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued November 18, 1997 -- Decided June 23, 1998
O'HERN, J., writing for the Court.
In this appeal, the Court considers whether its decision in Brett v. Great American Recreation, Inc.,
144 N.J. 479 (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.
On October 30, 1991, Samuel Vega and two of his friends were on the roofs of adjoining three-story
apartment buildings located at 685 State Street (“685") and 687 State Street (“687") in Perth Amboy. At the
time, Samuel was fourteen years old. It was “Mischief Night” and the boys were throwing tomatoes at cars
on the street. The children entered 685 through an unlocked door, 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 was fully aware that it was common
for children to enter his apartment building and access the roof.
Between the two buildings there was an irregularly shaped air shaft running the full height of the
building. At its widest point, the air shaft measured fifteen feet. Samuel Vega had not been on the roof of
the two buildings prior to that night. It was dark when he went on the roofs.
As the boys 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 shaft by helicopter. He suffered paralysis and brain damage. He ultimately passed away on
May 18, 1997.
At some point following the accident, suit was filed in behalf of Samuel Vega by his guardian ad
litem. Thereafter, the trial court granted summary judgment in favor of the owners of the building, holding
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 trial court further found that Samuel's actions were
reckless and did not fall under the terms of the infant-trespasser clause.
The Appellate Division held that Samuel had established that defendants knew or should have
known children were trespassing on the roof but that Samuel 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 decision, 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.”
The Supreme Court granted Vega's petition for certification.
HELD: The Court's decision in Brett did not modify the infant-trespasser rule as set forth in the
Restatement; even if Vega had established all of the elements of the infant-trespasser rule, no reasonable
jury could conclude that his injuries were proximately caused by the conditions of the property, as opposed to
his unsuccessful effort to leap the divide between the two rooftops.
1. Although an injured party's status as an invitee, licensee, or trespasser defines the extent of a
landowner's tort liability, foreseeability of harm is one constant that plays a significant role in fixing a
landowner's duty. (pp. 5-6)
2. New Jersey has joined the growing number of jurisdictions that have accepted section 339 of the
Restatement of Torts, which imposes liability on a possessor of land for bodily injury sustained by an infant
trespasser. (pp. 6-8)
3. A claimant must establish each element of section 339 to support a prima facie case. 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.
4. New Jersey has never adopted a per se rule that a child above a certain age should be deemed to be
aware of the risk of injury. Rather, age is only one factor to be considered, along with the nature and
obviousness of the risk and the likelihood that the risk would be appreciated by the child. (pp. 9-10)
5. There is a proper place in the law of landowners' liability under the doctrine of comparative negligence
to impose upon minors the responsibility to exercise due care for their own safety. This question is separate
and must be carefully distinguished from that of the land owner's duty. (pp. 12-13)
6. A court instructing a jury should explain that assessing whether a plaintiff appreciated the risk of injury
requires an evaluation of the claimant's subjective state of mind, while 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. (pp. 13-14)
7. Traditional common-law classifications based on status are difficult to apply in the setting of complex
social relationships involving tenants and a multiple-family housing unit and are not always ideally suited to
lead to the point where responsibility may fairly be sorted out. (p. 14)
8. Even if a court were convinced that all of the elements of the infant-trespasser rule had been established,
no reasonable jury could find that Samuel Vega's injuries were proximately caused by the conditions of the
property. 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. (pp. 15-17)
9. Nothing in Brett substantially modified the infant-trespasser rule. (p. 18)
10. In order for the infant trespasser rule to apply, a plaintiff must establish that the infant's trespass was
foreseeable; that an artificial condition existed on the property; and that the condition posed an unreasonable
risk of death or serious bodily injury. (pp. 18-19)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE HANDLER filed a separate concurring opinion. Although he agreed with the result
reached in this case, Justice Handler believed that the obsolete common-law classification standard should be
replaced with a general duty of reasonable care under the circumstances and that the plaintiff's conduct
should not shape the defendant's duty. Justice Handler would also have granted the defendant's motion for
summary judgment, but would have done so because Samuel Vega's comparative negligence exceeded that
of the defendants.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, GARIBALDI, STEIN and COLEMAN join
in JUSTICE O'HERN's opinion. JUSTICE HANDLER has filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A-
45 September Term 1997
SAMUEL 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.
Argued November 18, 1997 -- Decided June 23, 1998
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
294 N.J. Super. 486 (1996).
Eugene A. Cross argued the cause for
appellants (Ramp & Renaud, attorneys; Ann L.
Renaud, on the brief).
Thomas D. Monte, Jr., argued the cause for respondent Robert Piedilato (Monte, Marriott & Sachs, attorneys; Mr. Monte and Frank E.
Borowsky, Jr., of counsel; Mr. Borowsky, on
the brief).
William C. Carey argued the cause 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
O'HERN, J.
We granted certification,
149 N.J. 139 (1997), to consider
whether our decision in Brett v. Great American Recreation, Inc.,
144 N.J. 479 (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,See footnote 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 (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 (App. Div.
1956). Over time, "the protective fortifications of [these]
early common-law principles" were weakened. Id. at 143. 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.
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 (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 (1997) (quoting Brett,
supra, 144 N.J. at 508) (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."
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 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 (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
(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.
A claimant must establish each element of section 339 to
support a prima-facie case. Blackburn v. Broad St. Baptist
Church,
305 N.J. Super. 541, 547 (App. Div. 1997); Coughlin v.
U.S. Tool Co.,
52 N.J. Super. 341, 342 (App. Div. 1958), certif.
denied,
28 N.J. 527 (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.
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, Modern 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 (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:
[T]here 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.
Accord McColley v. Edison Corp. Ctr.,
303 N.J. Super. 420, 427-28
(App. Div. 1997) ("[T]here 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. 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 plaintiff's 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. 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. 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.
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,
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,
355 P.2d 1104, 1108-09
(Or. 1960) (quoting 2 Harper & F. James,
Torts, § 27.5 n.57 (1956)).]
See also Colls v. City of Chicago, 571 N.E.2d 951, 978 (Ill. Ct. App. 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.See footnote 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 building? 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 case is not the
case in which to revisit those classifications as our concurring
member would have us do.
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 affirmed. 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.See footnote 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 (1995), no reasonable jury could find that the plaintiff's 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 the lack of security measures was the cause of the fall. The cause of the accident and injuries was the plaintiff's 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 (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. 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 case 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. 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.
In the case 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
(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.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, GARIBALDI, STEIN,
and COLEMAN join in this opinion. JUSTICE HANDLER has filed a
separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A-
45 September Term 1997
SAMUEL 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.
HANDLER, J., concurring.
This is a sad and hard case. A young boy, failing to heed a
dangerous condition, lost his life. Yet, callous though it
seems, our law precludes recovery where the victim demonstrates
this degree of recklessness. The Court recognizes and accepts
that result. The principle of law on which the Court relies,
however, is ill-suited to explain its reasoning and conclusion.
More importantly, the Court's adherence to that law will make it
more likely that in other, similar cases the result will be
incorrect and unjust as well as sad and hard.
The majority retains the common-law status categories for
premises liability. The common law determines responsibility and
liability for injuries occurring on premises by distinguishing
among invitees, licensees and trespassers and assigning injured
parties to one of those categories. This tripartite
classification system is an anachronism of an agrarian society,
and, when applied today, the classification scheme creates more
confusion than clarity.
I believe the obsolete common-law classification standard
should be replaced with a general duty of reasonable care under
the circumstances. The plaintiff's conduct should not shape the
defendant's duty; instead, the doctrine of comparative negligence
should be the locus at which factfinders evaluate the plaintiff's
behavior. Thus, I conclude that defendants owed Vega a duty of
reasonable care under the circumstances and that they breached
that duty of care. Nevertheless, I would grant defendants'
motion for summary judgment. I would do so, not on the basis of
proximate cause, as determined by the Court, but because Vega's
comparative negligence exceeded that of defendants. Accordingly,
although I concur with the majority's judgment, I differ from its
reasoning and therefore write separately.
By continuing to apply Section 339 of the Restatement (Second) of Torts, the Court retains the common-law scheme for premises liability. The common-law classification system that this Court chooses to retain is a relic from mid-nineteenth-century England. See, e.g., John Ketchum, Note, Missouri Declines an Invitation to Join the Twentieth Century: Preservation of the Licensee-Invitee Distinction in Carter v. Kinney, 64 UMKC L. Rev. 393, 395 (1995). It was first recognized in the United States in 1865. Edward A. Strenkowski, Case Note, 33 Ark. L. Rev. 194, 195 (1979); see Sweeny v. Old Colony & Newport R.R., 92 Mass. 368 (1865). "The distinctions . . . were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism." Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S. Ct. 406, 410, 3 L. Ed.2d 550, 554 (1959).
Under this common-law tradition, "the duty owed by an occupier of land to third persons coming thereon is determined according to the status of such third person, i.e., invitee, licensee or trespasser." Snyder v. I. Jay Realty Co., 30 N.J. 303, 311 (1959).
The duty owed to a trespasser is relatively slight. A landowner, under most circumstances, has a duty to warn trespassers only of artificial conditions on the property that pose a risk of death or serious bodily harm to a trespasser. To the social guest or licensee, the landowner owes a greater degree of care. Although the owner does not have a duty actually to discover latent defects when dealing with licensees, the owner must warn a
social guest of any dangerous conditions of
which the owner had actual knowledge and of
which the guest is unaware.
Only to the invitee or business guest
does a landowner owe a duty of reasonable
care to guard against any dangerous
conditions on his or her property that the
owner either knows about or should have
discovered. That standard of care
encompasses the duty to conduct a reasonable
inspection to discover latent dangerous
conditions.
[Hopkins v. Fox & Lazo Realtors,
132 N.J. 426, 434 (1993) (citations
omitted).]
The tripartite classification system is fraught with
analytical and practical problems. It is often difficult, if not
impossible, to discern an entrant's status. "In a case . . . in
which the legal relationships are not precisely defined, the
attempt to pigeonhole the parties within the traditional
categories of the common law is both strained and awkward." Id.
at 438 (referring to the relationship between a real estate agent
and a potential customer on premises for an open house); see also
Mounsey v. Ellard,
297 N.E.2d 43, 57 (Mass. 1973) (Kaplan, J.,
concurring) ("[I]t is sometimes just as hard to distinguish
trespassers from licensees or invitees, as to distinguish
licensees from invitees."); Kristin K. Woodward, Note, Owners and
Occupiers of Land Now Owe Those Lawfully on Their Premises a Duty
of Reasonable Care Under Heins v. Webster County,
250 Neb. 750,
552 N.W.2d 51 (1996),
76 Neb. L. Rev. 184, 198 (1997)
(recognizing that distinguishing trespassers from nontrespassers
is a heavy burden); Strenkowski, supra,
33 Ark. L. Rev. at 205
(noting the inherent difficulty in distinguishing trespassers
from invitees and licensees). Applications of the common-law
categories are beset by recurrent and inescapable uncertainty.
They create a "semantic morass." Kermarec, supra, 358 U.S. at
631, 79 S. Ct. at 410, 3 L. Ed.
2d at 555. As the majority
explains: "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." Ante at ___ (slip op. at 6). In this case, the
majority acknowledges that assigning Vega to a common-law
category is baffling:
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 building? 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 is not the first premises liability case in which this Court has encountered difficulty in classifying a plaintiff as an invitee, licensee or trespasser. In Brett v. Great Am. Recreation, Inc., 144 N.J. 479 (1996), this Court described as a "struggle" the task of designating an entrant status to tobogganners, who were injured at 11 p.m. on a hill on which they had intended to ski the following day. Id. at 509. In Hopkins,
supra, 132 N.J. at 438, the status of a real-estate customer
attending an open house similarly perplexed this Court. Because
the analysis dictated by the common-law classifications skewed
rather than clarified the relationships that were at the heart of
legal responsibility and liability, we chose in those cases to
disregard those classifications. Brett, supra, 144 N.J. at 509;
Hopkins, supra, 138 N.J. at 438. Forcing an entrant into an
anachronistic common-law category in this modern world is often
an arduous and artificial endeavor. As in this case, it
frequently depicts a relationship that does not square with
reality.
The common-law classification system also does not conform
to our contemporary notions of justice. Smith v. Arbaugh's
Restaurant,
469 F.2d 97, 101 (D.C. Cir. 1972) ("We believe that
the common law classifications are now . . . alien to modern tort
law, primarily because they establish immunities from liability
which no longer comport with accepted values and common
experience."), cert. denied,
412 U.S. 939,
93 S. Ct. 2774,
37 L.
Ed.2d 399 (1973). The common-law classifications may well have
been perfectly tailored to the agrarian and sparsely populated
society that preceded the Industrial Revolution.
The common law doctrine with its rigid
classifications prescribing premises
liability is rooted in early nineteenth
century notions of private property
interests. Adhering to social mores that
placed a paramount value on pastoral and
agrarian ideals, courts strove to maximize
the protection of rights of landowners to use
and enjoy their land.
See also Smith, supra, 469 F. 2d at 101 ("Perhaps the protection afforded to landowners by these rules was once perceived as necessary in view of the sparseness of land settlements, and the inability of owners to inspect or maintain distant holdings. The prestige and dominance of the landowning class in the nineteenth century contributed to the common law's emphasis on the economic and social importance of free use and exploitation of land over and above the personal safety of those who qualified as trespassers or licensees."). Nevertheless, our society and values have transformed since the creation of the common-law classifications.
The United States is no longer the agrarian society that accepted the scheme of entrant classes from England as adopted common law. The national character is now dominated by a rapid-paced urban and suburban culture. The exigencies of this urban civilization have produced a more `gregarious society' and have increased the probability that people will enter the property of others.
[Recent Developments, Torts -
Abrogation of Common-Law Entrant
Classes of Trespasser, Licensee,
and Invitee,
25 Vand. L. Rev. 623,
640 (1972) (footnote omitted).]
"Today, the preeminence of land over life is no longer accepted.
Human safety may be more important than a landowner's
unrestricted freedom." Smith, supra, 469 F.
2d at 101; see also
Michael Sears, Comment, Abrogation of the Traditional Common Law
of Premises Liability,
44 U. Kan. L. Rev. 175, 185-86 (1995)
(recognizing the emergence of "the more modern and humanitarian
theory of compensation"); Kerrie Restieri-Heslin, Note,
24 Seton
Hall L. Rev. 2227, 2255-56 (1994) ("The social values and economy
of the United States are no longer based on an agrarian society
or feudal norms. Our modern, urbanized, and complex society has
so evolved that a higher value is placed on human safety and
protection than on private property rights.").
A man's life or limb does not become less
worthy of protection by the law nor a loss
less worthy of compensation under the law
because he has come upon the land of another
without permission or with permission but
without a business purpose. Reasonable
people do not ordinarily vary their conduct
depending upon such matters, and to focus
upon the status of the injured party as a
trespasser, licensee, or invitee in order to
determine the question whether the landowner
has a duty of care, is contrary to our modern
social mores and humanitarian values.
[Rowland v. Christian,
443 P.2d 561, 568 (Cal. 1968).]
See also Woodward, supra,
76 Neb. L. Rev. at 197 ("A minor
invasion of a property interest should not cause one to be deemed
unworthy of humane treatment in today's society."); Mark J.
Welter, Comment, Premises Liability: A Proposal to Abrogate the
Status Distinctions of "Trespasser," "Licensee" And "Invitee" as
Determinative of a Land Occupier's Duty of Care Owed to an
Entrant,
33 S.D. L. Rev. 66, 84 (1987/1988) ("Human life is more
important than property and one should be held responsible for
injuries to others resulting from his own negligence.");
Strenkowski, supra,
33 Ark. L. Rev. at 202 ("Humanitarian and
social mores of today, responding to perhaps a higher concern for
human life, favor restrictions upon the landowner."). Because
the values on which the common-law classifications were based
have changed, the tripartite classification system has become
obsolete. See Hopkins, supra, 132 N.J. at 436 ("[W]ith the
development of a more urbanized, heterogeneous, destabilized, and
complex society, the status of persons in relation to the use of
property could no longer be adequately accommodated by the strict
traditional classifications of the common law."); Turpel v.
Sayles,
692 P.2d 1290, 1291 (Nev. 1985) ("[A]s other courts have
concluded, we are not satisfied that the traditional principles
of property law are appropriately applied to analysis of a tort
claim in a twentieth century urban residential setting."); Tab H.
Keener, Can the Submission of a Premises Liability Case Be
Simplified?,
28 Tex. Tech L. Rev. 1161, 1174 (1997) (recognizing
the status categories fail to reflect issues presented in today's
premises liability suits); Ketchum, supra,
64 UMKC L. Rev. at 411
("Although the common law distinctions may have proved fruitful
in protecting landowner interests -- supporting the expansion of
a simplistic, nineteenth century agrarian economy -- they have
proved largely incapable of justly delegating liability in the
vastly more complicated, industrialized society of the twentieth
century."); Kathryn E. Eriksen, Premises Liability in Texas -
Time for a "Reasonable" Change, 17 St. Mary's L.J. 417, 439
(1986) (noting the obsolescence of the classification scheme).
We have always recognized at common law that when the
reasons that gave rise to a rule of law no longer endure, the law
itself, lacking foundation, must be replaced. State v. Culver,
23 N.J. 495, 506 (1957) (stating the common law must adopt to
modern conditions). When the policies and values that undergird
a principle of law have changed, the law also should change.
Funk v. United States,
290 U.S. 371, 383,
54 S. Ct. 212, 216,
78 L. Ed. 369, 376 (1933) ("It has been said so often as to have
become axiomatic that the common law is not immutable but
flexible, and by its own principles adapts itself to varying
conditions."); Hopkins, supra, 132 N.J. at 435 ("We have long
acknowledged that the legal rules expressive of the common law
embody underlying principles of public policy and perceptions of
social values. Because public policy and social values evolve
over time, so does the common law."); Renz v. Penn Central Corp.,
87 N.J. 437, 456 (1981) (noting the evolution in negligence
jurisprudence).
The law governing premises liability has not escaped the
evolving nature of the common law itself. "Whatever the social
and policy considerations that led to the judicial creation of
the invitee, licensee and trespasser immunities they no longer
retain their viability under modern conditions and it is fitting
and proper that they be laid to judicial rest." Ouellette v.
Blanchard,
364 A.2d 631, 634 (N.H. 1976). "By failing to
harmonize the law with present societal conditions, the majority
abdicate the court's responsibility for the upkeep of the common
law." Elden v. Sheldon,
758 P.2d 582, 594 (Cal. 1989)
(Broussard, J., dissenting). The policies and values of the by-gone era of the mid-nineteenth century giving rise to the
classification of entrants on land, and the reasons justifying
that classification, no longer persist. In view of our society's
modernization, abrogation of the tripartite classification system
is warranted.
Acknowledging the antiquity of the premises liability
classification system, the majority nevertheless retains it. The
Court implicitly attempts to discount the arbitrariness that
surrounds the common-law classification scheme by pointing to the
infant trespasser doctrine as an exception that purportedly gives
the scheme flexibility. Ante at ___-___ (slip op. at 7-10). The
infant trespasser doctrine, which is also known as the attractive
nuisance doctrine, is one of many exceptions to the rigid common-law rule. See J.D. Lee & Barry A. Lindahl, 3 Modern Tort Law:
Liability and Litigation § 30.01, at 57 (rev. ed. 1990). Though
exceptions to the common-law classifications mitigate the common-law rule's harsh impact, those exceptions themselves create
uncertainty and confusion in the law.
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.
[Kermarec, supra, 358 U.S. at 630-31, 79 S. Ct. at 410,
3 L. Ed.2d 554-55 (footnotes omitted).]
See also Smith, supra, 469 F.
2d at 103 (finding the common-law
classification system produces confusion); Webb v. City & Borough
of Sitka,
561 P.2d 731, 732 (Alaska 1977) (same); Rowland, supra,
443 P.
2d at 566 (same); Mile High Fence Co. v. Radovich,
489 P.2d 308, 311 (Colo. 1971) (same); Jones v. Hansen,
867 P.2d 303, 309
(Kan. 1994) (same); Peterson v. Balach,
199 N.W.2d 639, 644
(Minn. 1972) (same); Ouellette, supra, 364 A.
2d at 634 (same).
Thus, the plethora of exceptions to the common-law
classifications endorsed by the majority bring discord into the
law. Because the tripartite classification system departs from
the general duty of reasonable care under the circumstances, the
exceptions to common-law classifications create jurisprudential
cacophony. Hence, modifications to the common-law
classifications at best constitute exceptions to the exceptions
to the basic duty of reasonable care and serve to convolute the
law. See Ketchum, supra,
64 UMKC L. Rev. at 412.
Abandoning the tripartite common-law classification system
would restore simplicity to our negligence and premises liability
jurisprudence. See Smith, supra, 469 F.
2d at 103. The
majority's decision to retain the common-law classifications
needlessly perpetuates gratuitous complexity in our law. By
retaining the premises liability classification system and its
exceptions, the majority abdicates its obligation to harmonize
the common law. See Smith v. Bridgeport Futures Initiative,
Inc., 1
996 WL 493229, *2 (Conn. Super. 1996). ("Courts have an
obligation to harmonize their case law so as to bring about
consistent common law development."); Ronald Dworkin, Hard Cases,
88 Harv. L. Rev. 1057 (1975) (illuminating the importance of
harmonizing the law, including the common law).
Because the entrant classification system is difficult to
apply, deviates from current values, and, with its exceptions and
modifications, is complex, the principle of stare decisis does
not mandate its retention.
"The doctrine of stare decisis neither
renders the courts impotent to correct their
past errors nor requires them to adhere
blindly to rules that have lost their reason
for being. The common law would be sapped of
its life blood if stare decisis were to
become a god instead of a guide. The
doctrine when properly applied operates only
to control change, not to prevent it."
[White v. Township of N. Bergen,
77 N.J. 538, 550 (1978) (quoting Fox
v. Snow,
6 N.J. 12, 23 (1950)
(Vanderbilt, C.J., dissenting)).]
See also Oliver Wendell Holmes, The Path of the Law,
10 Harv. L.
Rev. 457, 469 (1897) ("It is revolting to have no better reason
for a rule of law than that so it was laid down in the time of
Henry IV. It is still more revolting if the grounds upon which
it was laid down have vanished long since, and the rule simply
persists from blind imitation of the past.").
The primary function of the law is justice
and when a principle of the law no longer
serves justice it should be discarded; here
the law was embodied not in any controlling
statute but in a judicial principle of the
law of torts; . . . it runs counter to
widespread principles which fairly impose
liability on those who wrongfully and
negligently injure others; it operates
harshly and disregards modern concepts of
justice and fair dealing; it has been roundly
and soundly condemned here and elsewhere and
the time has come for its elimination by the
very branch of government which brought it
into our system.
[Collopy v. Newark Eye & Ear
Infirmary,
27 N.J. 29, 47-48
(1958).]
See also Smith, supra, 469 F.
2d at 105 (holding stare decisis
does not preclude the court from abolishing the classification
scheme); Mariorenzi v. Joseph DiPonte, Inc.,
333 A.2d 127, 133
(R.I. 1975) ("The judiciary gave birth to the invitee, licensee,
trespasser trio and the judiciary can lay this triptych to rest.
Accordingly, we now give a final but fitting internment to the
common-law categories of invitee, licensee, and trespasser as
well as their extensions, exceptions, and extrapolations."),
overruled by Tantimonico v. Allendale Mut. Ins. Co.,
637 A.2d 1056 (R.I. 1994). Because the common-law classifications are no
longer justified and are unworkable, see Hudson v. United States,
___ U.S. ___, ___,
188 S. Ct. 488, 494,
139 L. Ed.2d 450, 460
(1997) (overruling an unworkable precedent); cf. State v. Norman,
151 N.J. 5, 29 (1997) (refusing to create an unworkable rule),
the principle of stare decisis does not vindicate this Court's
decision to retain the tripartite classification system. In
order to eliminate a legal regime that is difficult to apply,
fails to comport with modern morality, and has developed into a
"semantical quagmire," Mariorenzi, supra, 333 A.
2d at 133, the
common-law classifications should be abolished in this case.
Rather than base the landowner's duty on the entrant's common-law classification, I would impose a duty of reasonable care under the circumstances regardless of the entrant's status. This approach has been followed by other jurisdictions that have abrogated the tripartite classification system. See Webb, supra, 561 P. 2d at 733; Rowland, supra, 443 P. 2d at 568; Pickard v. City & County of Honolulu, 452 P.2d 445, 446 (Haw. 1969); Cates v. Beauregard Elec. Coop., Inc., 328 So.2d 367, 371 (La.), cert. denied, 429 U.S. 833, 97 S. Ct. 97, 50 L. Ed.2d 98 (1976); Limberhand v. Big Ditch Co., 706 P.2d 491, 496 (Mont. 1985); Moody v. Manny's Auto Repair, 871 P.2d 935, 943 (Nev. 1994); Ouellette, supra, 364 A. 2d at 634; Basso v. Miller, 352 N.E.2d 868, 872 (N.Y. 1976). When declining to apply the common-law classifications, this Court has imposed this duty of reasonable care. See Hopkins, supra, 132 N.J. at 438. In addition, the duty of reasonable care is embedded in our negligence jurisprudence. See Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 515 (1997) (imposing a duty of reasonable care); Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 577 (1996) (same); Hopkins, supra, 132 N.J. at 438 (same); Butler v. Acme Markets, Inc., 89 N.J. 270, 280 (1982) (same).
Landowners have "a general duty to exercise reasonable care in preventing foreseeable harm." Hopkins, supra, 132 N.J. at 438. Mere foreseeability, however, does not guarantee the imposition of a duty on a landowner. E.g., Clohesy, supra, 149 N.J. at 502. "The determination of the existence of a `duty to exercise reasonable care to avoid the risk of harm to another . . . is one of fairness and policy that implicates many factors.'" Ibid. (quoting Carvalho, supra, 143 N.J. at 572); accord Kuzmicz v. Ivy Hill Apartments, Inc., 147 N.J. 510, 515 (1997); Snyder v. American Ass'n of Blood Banks, 144 N.J. 269, 292 (1996); Dunphy v. Gregor, 136 N.J. 99, 108 (1994); Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194-95 (1994); Hopkins, supra, 132 N.J. at 438-39; Weinberg v. Dinger, 106 N.J. 469, 485 (1987); Kelly v. Gwinnell, 96 N.J. 538, 544 (1984); Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 583 (1962). These factors include "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Hopkins, supra, 132 N.J. at 439.
Undoubtedly, a landowner ow