On appeal from the Superior Court, Appellate Division.
For reversal -- Justices Heher, Wachenfeld, Jacobs and Brennan. For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant and Burling. The opinion of the court was delivered by Wachenfeld, J. Oliphant, J. (dissenting). Vanderbilt, C.J., concurs in this dissent.
The infant plaintiff, through his guardian ad litem, sues to recover damages for injuries sustained in an accident occurring on October 19, 1951. His father sues per quod.
The defendant, a contractor, was using a bulldozer to excavate and grade a lot owned by the St. Joseph's Roman Catholic Church, immediately adjacent to the Echo Lake Public School in West Milford Township. The child, six years of age, attended the school and on the day in question, some time during recess, after being excused by his teacher, fell into the excavation made by the defendant and was found lying in the bottom of a furrow three or four feet below the grade of the property line.
The area had been used by the children attending the school as a playground for many years and the defendant's employee, the bulldozer operator, was aware of the presence of the children upon the premises.
The pretrial order framed the issues as follows:
"Plaintiffs charge negligence by reason of defendant's failure to safeguard a dangerous and hazardous condition, well knowing the
proximity of the school yard and the fact that minor children customarily played thereon.
Defendant concedes that it was engaged in grading a parking lot for St. Joseph's Roman Catholic Church immediately adjacent to the school property and that a difference was thereby created in the grade levels, and that the infant plaintiff fell and sustained injury, but it denies that any duty was owed by it to the infant plaintiff * * *"
The trial court dismissed the plaintiffs' action and on appeal the Appellate Division, 23 N.J. Super. 9, affirmed by a divided vote, thus giving the right to pursue the appeal taken.
There is no attack upon or quarrel with the rule enunciated in Strang v. South Jersey Broadcasting Co., 9 N.J. 38 (1952), but the controversy centers rather upon its applicability to the circumstances sub judice.
The majority in the Appellate Division thought: "To have permitted the submission of this case to the jury would have been an unwarranted extension of the doctrine of the Strang case and those [cases] cited therein," while the dissenter could not "distinguish the applicability" of the ...