On certified appeal from the Appellate Division of the Superior Court.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Weintraub. For affirmance -- Justice Oliphant. The opinion of the court was delivered by Heher, J.
[24 NJ Page 440] The action is in tort for negligence in the use of the defendant's lands. A jury was empanelled to try the issue in the Law Division of the Superior Court; and at the close of the testimony taken on behalf of both parties, there was judgment final for defendant by direction of the judge. The evidence was deemed insufficient to sustain the pleaded common-law liability. The Appellate Division affirmed, 43 N.J. Super. 289 (1957); and the case is here by our certification at the instance of the plaintiff. [24 NJ Page 441] The mishap occurred May 28, 1951. The prior January plaintiff, then 33 years of age, entered into the employ of defendant at its plant in Milford, New Jersey, in the chemical mix department; the employer maintained a tract of land adjacent to the Delaware River, one-quarter of a mile to the south of its factory, for the "surface incineration" of the waste products of manufacture; it was an open area contiguous to the river bank, extending east to the parallel Frenchtown Road; there was a wire fence along the westerly side of the road and a gateway for the passage of defendant's trucks used to convey the debris and waste matter along a "winding" roadway to the "dumping" section at or near the river bank, there to be burned; the "dump" had "reached a length and breadth of some 300 feet" and had a surface elevation of "10 to 15 feet above the level of the river at its adjacent bank"; the "sections which were thought to be burned out were covered by 'fly ash,' coal ash, from the mill's boilers," a finding by the Appellate Division supported by the proofs; 12 noon to 1 P.M. was plaintiff's lunch hour and, as had been his wont when the weather was favorable, he went off to the grounds in question at the noon recess of the given day, intending to partake of his lunch and to fish from the adjoining river bank; he entered the open gateway, parked his automobile near the "dumping" area, there had his lunch in part and then proceeded on foot with rod and reel across the dump "which from his observations had apparently burned out and its ash surface solidified," but when he "arrived close to the river's edge," the "surface of the dump caved in beneath him, submerging his body up to the waist in a pit of unextinguished hot embers," and he thereby suffered grievous bodily injuries entailing medical expenses and wage losses amounting to $12,000, all matters of fact found by the Appellate Division in accordance with the evidence; it was there also found that the "'dump' became progressively enlarged by the daily deposits of debris at the northerly, easterly, and southerly sides of the area," and that it "may be inferred that the spaces of the dump in which the burning had sufficiently declined were customarily
supplied with a cover or crust of coal ash from the boilers of the factory to await the natural and ultimate extinguishment of the underlying fires."
But the trial judge was of the view that plaintiff was a trespasser and there was no violation of the duty owing by a possessor of land to one who trespasses on the land: and the rationale of the Appellate Division's judgment is that the "use of fire, unless reasonably attended and regulated, is dangerous"; the adjective "'dangerous' has a close acquaintance with 'foreseeability of harm,' which latter element constitutes the basis of legal liability and denotes the dimensions of the duty of proportionate care"; the inquiry, it is there suggested, is whether there is "any evidence in the case of facts which by the actual information thereof, or by knowledge thereof which it ought to have acquired from its reasonable supervision of the premises, should have caused the defendant to foresee the likelihood of such an injurious mishap," i.e., the likelihood that "either the plaintiff or an adult intruder such as the plaintiff would endeavor to walk across the top of the dump," and there is "no evidence whatever that any one other than the plaintiff and one other ever followed that adventurous course over the obvious dump to the river bank"; and the holding was that while there was evidence that "over the adjacent range of farm land persons, probably trespassers, were occasionally observed to be hunting game," these trespasses did not extend to "the top of the dump," and there was "no evidential support for the impression that persons other than the plaintiff sought habitually and noticeably to fish from the shore of the river at a location beneath the embankment of the dump"; that "proof of the mere burning of refuse at such an isolated and secluded location does not carry within itself an inference of expectation of serious bodily harm," and "in the light of the evidence of past events, the plaintiff committed a reasonably unexpected act -- a venturesome attempt to walk across the dump as a 'short cut' to the river"; the evidence, in fine, "lacked that requisite adequacy, particularly in the essential element of foresight for serious bodily harm."
We have set forth thus at length the reasoning of the Appellate Division in order to show that we are not altogether in disagreement as to the essential principle but largely in the application of the principle to the facts and circumstances of this case.
Defendant invokes the "general rule," Restatement, Torts, section 333, that "a possessor of land is not subject to liability for bodily harm caused to trespassers by his failure to exercise reasonable care," and that "the only duty owed by the owner or possessor of land with respect to trespassers is to refrain from acts wilfully injurious * * *," citing Tahan v. Wagaraw Holding Co., 28 N.J. Super. 436 (App. Div. 1953); Lordi v. Spiotta, 133 N.J.L. 581 (Sup. Ct. 1946).
The possessor of land is liable for the reasonably foreseeable injurious consequences of the use of a dangerous agency on the land. However it may be phrased, this doctrine of liability for hurt to others is basic to the common law. Where an act carelessly done would be highly dangerous to the personal safety of others, the common law raises a "public duty" of care commensurate with the risk of harm. Strang v. South Jersey Broadcasting Co., 9 N.J. 38 (1952). Fire has ever been deemed "a dangerous as well as a beneficent agency, to be handled with care"; and liability does not necessarily depend on invitation but may be grounded in "responsibility for a dangerous agency," citing Van Winkle v. American Steam Boiler Co., 52 N.J.L. 240 (Sup. Ct. 1890), Beasley, C.J.; the one "who sets a fire and is negligent in setting or guarding it is liable if damage results"; the test is whether "injury to the plaintiff or to a class of which the plaintiff was one ought reasonably to have been anticipated," citing Piraccini v. Director General of Railroads, 95 N.J.L. 114 (E. & A. 1920), Swayze, J. As pointed out in Strang, reference was made in this latter case to the stringency of the early English law that he in whose house
or chambers a fire originated, whether by negligence or mere accident, was responsible for injuries occasioned by its spread to other premises, extended by the King's Bench in 1697 to fires kindled in an owner's close.
The rule at the English common law is that the proprietor of an instrument which, unless properly handled, is "a dangerous thing," is deemed "an indemnifier for all losses, sufficiently proximate, occasioned by its use"; where a person brings upon his land "some dangerous thing, such as fire or water, or a dangerous animal," he "is bound * * * to keep it at home at his peril"; "In all these classes of cases, something more than 'care,' however diligent, is demanded, viz., absolute indemnity." But the American decisions are generally less stringent; "Where the dangerous thing is not in its nature and under the circumstances a nuisance per se, the maintainer of it is not, in any sense, an insurer against the loss that it may accidentally cause; he is responsible only for negligence or want of skill in his management or use"; "Nevertheless, as the thing employed is threatful of peril to others, and as he is using such thing for his private benefit, it has been properly established that the proprietor must exercise a high degree of care, and that if he omits to do so he will be answerable for the ill consequences to others that are the natural and proximate result of such default"; the obligation comprehended in the maxim sic utere ut alienum non laedas is that by having "this boiler ...