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King v. Patrylow

Decided: September 28, 1951.


McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.


Defendants appeal from a judgment for plaintiffs entered upon a jury verdict in the Law Division, Hudson County.

Several grounds of alleged error are argued, but we have occasion to consider only the trial court's denial at the close of the case of defendants' motion for judgment and alleged error in the charge.

Patrylow's Grove & Cocktail Bar, the defendant partnership, operates a picnic grove in Kenilworth where it maintains

a shooting gallery for its patrons under the charge of its employee, the defendant Walter Patrylow. On March 7, 1949, the infant plaintiff, age 11, attended a picnic at the grove with his mother. He was attracted to the shooting gallery and spent much of his time watching patrons shoot at the targets. The rifles were chained to the counter at the front of the gallery. Expended shells fell to the ground on either side of the counter. At about nine o'clock in the evening Patrylow was making preparations to close for the night. It was his practice at such times to shoot each rifle to empty it of undischarged bullets. The boy asked for and was granted permission by Patrylow to enter the gallery to pick up used shells from beneath the inner side of the counter. Patrylow opened a side door to let him in. The boy moved along the counter to a point three or four feet from the door and, with his right hand resting on the top of the counter, leaned over to gather shells with his left hand. Patrylow, who was outside the counter, picked up the rifle lying at the end of the counter between the door and the boy. He knew that the boy was just to his right "two or three feet from where the gun actually was." He aimed the gun "toward the ground," "not entirely to the left," although admitting there was sufficient space to the left to aim it away from where the boy was and also that he might have aimed it toward the top of the range or at the targets at the rear above the level of the counter. The bullet struck the boy's right hand as it rested on the counter.

We have summarized the evidence in its aspect most favorable to the boy's claim, as we must when determining whether a jury question was presented upon defendants' motion for judgment.

Liability was predicated upon allegations that the boy was a licensee within the gallery and was wounded by Patrylow's willfully injurious act.

Defendants argue that liability for willful injury can be found only where positive intent of the actor to do harm to the plaintiff appears, and contend that they were entitled to

judgment on their motion because plaintiffs conceded during the trial that Patrylow did not intend to shoot the boy.

There was no error. While no duty is owing to a mere licensee except to abstain from acts "willfully injurious" (Sohn v. Katz , 112 N.J.L. 106 (E. & A. 1934); Faggioni v. Weiss , 99 N.J.L. 157 (E. & A. 1923)), nevertheless, an act may be "willfully injurious" whether or not there is ill will toward, or a positive intent to injure, the person harmed. True, conduct which is willful, unlike conduct which is merely negligent, does import intent. "Negligence and willfulness are mutually exclusive terms which imply radically different mental states. 'Negligence' conveys the idea of inadvertence as distinguished from premeditation or formed intention." 38 Am. Jur. Negligence, sec. 48, p. 692. The element of intent to harm the plaintiff is supplied, however, under the rule in effect in this State (other jurisdictions follow different principles, see Restatement, Torts, Scope Note, secs. 500-503 (1934)) by a constructive intention as to the consequences, which, entering into the intentional act which produces the injury, the law imputes to the actor regardless of whether or not he intended to harm the person, so that a charge which otherwise would be mere negligence, becomes, by reason of reckless disregard of the safety of the other, a willful wrong. Baines v. Collins , 310 Mass. 523, 38 N.E. 2 d 626 (Sup. Jud. Ct. Mass. 1942).

The emphasis is upon the reckless indifference to consequences of the deliberate act or omission in the face of known circumstances and the high degree of probability of producing the harm. "To establish a willful or wanton injury it is necessary to show that one with knowledge of existing conditions, and conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act or omits to discharge some ...

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