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Spenzierato v. Our Lady Monte Virgine Society of Mutual Benefit of East Orange

Decided: January 5, 1934.

DOMENICK SPENZIERATO, AN INFANT, BY HIS NEXT FRIEND, ALLESSANDRO SPENZIERATO AND FELICIA SPENZIERATO, RESPONDENTS,
v.
OUR LADY MONTE VIRGINE SOCIETY OF MUTUAL BENEFIT OF EAST ORANGE, NEW JERSEY, APPELLANT



On appeal from the Supreme Court.

For the appellant, Forlenza & Harrington (William P. Braun, of counsel).

For the respondents, Nicholas Albano.

Lloyd

The opinion of the court was delivered by

LLOYD, J. The appeal is by Our Lady Monte Virgine Society of Mutual Benefit of East Orange, one of the defendants in the above entitled cause, from a judgment obtained by the plaintiff, and the grounds of appeal are that the court erred in denying the defendant's motion for nonsuit and for the direction of a verdict in its favor.

The action was to recover damages for injuries to a boy eight years of age, caused by the explosion of a bomb which had been left on a vacant lot by a fireworks company on the evening of the 8th of September, 1928.

The facts which the jury might have found were these: On the 8th and 9th of September, 1928, the defendant society gave a festival which included church services, band concerts,

parades and a fireworks display on the evening of the 8th. The fireworks were exhibited by another defendant under contract with the society. This display was given on an adjoining piece of property which had been leased by the society for the purpose. On the following day the boy plaintiff and other children were playing on the lots where the festival was being held and while doing so one of the bombs was picked up and exploded, causing the injuries to the boy's hand, ultimately requiring its amputation. It appeared that the lot on which the bomb was found had been habitually used by children, of whom plaintiff was one, as a playground. There was some proof that the festival was continuing in some of its phases through the day of the 9th.

It was upon these proofs that the case was permitted to go to the jury. The motion for nonsuit was based on the ground that there was no proof of negligence. The motion for a direction was rested on the ground that by a preponderance of the evidence negligence had not been shown; that leaving the object on the ground was not the proximate cause of the accident; that there was no testimony to show that the defendant was responsible for the explosion of the bomb, and finally that if an invitation was given by the defendant it did not extend to the boy plaintiff.

The case is argued in appellant's brief solely on the ground of invitation and negligence. If the case rested on invitation it is probable that under our cases no liability would attach by reason of the foregoing facts in the absence of proof of willful injury. Gavin v. O'Connor, 99 N.J.L. 162, and cases of kindred character. The case, however, as it seems to us, more nearly presents in principle a rule of liability as illustrated in the case of Piraccini v. Director-General of Railroads, 95 Id. 114, where an infant child received injuries and died from coming in contact with a fire kindled by the defendant railroad company on its own property, the child having entered the place to play. In that case the fundamental obligation of those handling dangerous agencies as declared by Chief Justice Beasley, in Van Winkle v. American Steam Boiler Co., 52 Id. 240, is quoted at length. In this

statement of the law it was said by the Chief Justice that "in all cases in which any person undertakes the performance of an act which, if not done with care and skill, will be highly dangerous to the persons or lives of one or more persons known or unknown, the law ipso facto imposes as a public duty the obligation to exercise such care and skill." In that case as here an infant child was playing on property of the defendant commonly used as a playground by children. This fact was known or ought to have been known to ...


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