On certified appeal from the Camden County Court to the Appellate Division of the Superior Court.
For affirmance -- Justices Heher, Oliphant, Wachenfeld and Burling. For reversal -- Justices Jacobs and Weintraub. The opinion of the court was delivered by Heher, J. Wachenfeld, J. (concurring). Wachenfeld, J., concurring in result. Jacobs, J. (dissenting). Justice Weintraub joins this dissent.
We certified here on our own motion plaintiffs' pending appeal to the Appellate Division of the Superior Court from a judgment of involuntary dismissal of the action at the close of plaintiffs' case, entered in the Camden County Court, Judge Martino sitting, for failure of proof of the pleaded negligence in the use of defendant's church premises situate in Mount Ephraim on the Black Horse Pike, and also on the ground of defendant's immunity from suit as an "eleemosynary corporation."
Plaintiff Emma R. Lokar fell February 8, 1953 as she proceeded along a driveway on defendant's church lands toward the abutting highway to which it led, after attending the eleven o'clock Mass, and sustained injuries for which her husband also sues per quod. The driveway was "blocked off" to vehicular traffic by a chain approximately two inches in diameter, suspended across the width of the driveway from a post at either end, at an elevation permitting a crossover by passersby. By this means the driveway was barred to automobiles on Sunday mornings and whenever there was occasion for the measure. The closing of the driveway was at the behest of the local bureau of police, "because it was a traffic hazard." The driveway was paralleled by a "walk" extending along the church building between the front and rear entrances; the driveway and walk were connected by a cement path near the rear entrance to the church building, and by a flagstone way at the front, and there was a grass plot between.
Until the advent of the barrier the church premises were used for the parking of automobiles, driven from the highway
via the driveway; the pastor had made known from the pulpit the discontinuance of the practice and the use of the chain to close the way, and Mrs. Lokar acknowledged on the witness stand that she had heard the pulpit announcement and was aware of the nature of the barrier and its purpose "more than several months" before the mishap befell her; she had "used" the driveway "to walk up to the flagstone walk" "just as much as the sidewalk along the church."
On the particular occasion Mrs. Lokar "left the church by the back entrance," "came down the steps, following others"; the "walk along the church was filled"; she "walked down the driveway with the other people" toward the highway (her husband had gone ahead for the car parked nearby), "veering to the left to go over to [the] walk"; she "veered with the people that were walking to the left also," intending to cross over to the walk alongside the church building, and there wait for her husband, and while so engaged the "chain hit the front part of my both ankles," "on the front of both of my ankles"; it "swung and it was heavy, there was an impact," and she "went flat on the cement"; the chain "was stretched across the driveway"; a "young person" she could not identify "almost fell"; she saw "her heel," the "heel caught, and the chain swung," but she "didn't fall." Mrs. Lokar was "very close" to the chain when she "was hit"; she was not seeking to step over the chain "when she was struck"; she "never went over the chain"; she and her husband always left the church by the "rear" door. They had been members of the parish for more than 14 years.
We are concerned here with the standard of conduct as to others laid upon the possessor of land; and this, in turn, depends on the existence of a relation between the particular parties requiring the protection of the one by the other against what the law by common consent deems an unreasonable risk of harm, and whether the evidence in this regard involves issues of fact subject to diverse judgments by reasonable men. Is negligence, measured by the accepted rule of conduct, a permissible conclusion in any reasonable view of the evidence? If it is, then there is a
question for the jury. The inquiry is whether there is any evidence which, if accepted and given its fullest probative force, reasonably tends to sustain the pleaded cause of action. Is it such that fair and reasonable men would be justified in concluding that the burden of proof had been sustained? Mere surmise or conjecture is not enough. Sivak v. City of New Brunswick, 122 N.J.L. 197 (E. & A. 1939). See also, Leers v. Green, 24 N.J. 239 (1957).
It was early declared to be the rule in New Jersey that an "owner of lands who, by invitation, express or implied, induces persons to come upon his premises, is under a duty to exercise ordinary care to render the premises reasonably safe for such purposes, or at least to abstain from any act that will make the entry upon or use of the premises dangerous." Phillips v. Library Co., 55 N.J.L. 307 (E. & A. 1893). See Murphy v. Core Joint Concrete Pipe Co., 110 N.J.L. 83 (E. & A. 1933); Griffin v. De Geeter, 132 N.J.L. 381 (E. & A. 1945); Beck v. Monmouth Lumber Co., 137 N.J.L. 268 (E. & A. 1948); Gudnestad v. Seaboard Coal Dock Co., 15 N.J. 210 (1954). An act in disregard of the possessor's duty of care in the use of the land, in proportion to the foreseeable risk, is a remediable tortious transgression. Strang v. South Jersey Broadcasting Co., 9 N.J. 38 (1952). One who "by invitation, express or implied, induces persons to come upon his premises," as distinguished from an entry by mere license or sufferance, owes to the invitee the duty to exercise "ordinary care to render the premises reasonably safe" for the intended use, and to abstain from any act that would make the use dangerous. Taneian v. Meghrigian, 15 N.J. 267 (1954).
But on reason and authority there is no obligation, save in exceptional circumstances, to use the words of Dean Prosser, "to protect the invitee against dangers which are known to him, or which are so apparent that he may reasonably be expected to discover them and be fully able to look out for himself"; "Ordinarily nothing more than a warning is required." Prosser, Law of Torts (2 d ed. 1955), section 78. See Burk v. Walsh, 118 Iowa 397, 92 N.W. 65 (Sup.
Ct. 1902); also Keeton, "Personal Injuries Resulting from Open and Obvious Conditions " (1952), 100 U. Pa. L. Rev. 629 (1952).
The principle has general acceptance. A possessor of land is not subject to liability to his "licensees, whether business visitors or gratuitous licensees," for bodily harm caused to them by "any dangerous condition thereon, whether natural or artificial, if they know of the condition and realize the risk involved therein." Restatement, Torts, section 340. Section 332 defines a "business visitor" as a person who is "invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them," and thus an invitee in the usual sense of the term.
The possessor of land is not liable to one rightfully on the premises for injuries attributable to dangers that are obvious or as well known to the user of the lands as to the possessor.
"The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. * * *" Pinehurst Co. v. Phelps, 163 Md. 68, 160 A. 736 (Ct. App. 1932).
The principle was applied in the later case of Gordon v. Maryland State Fair, 174 Md. 466, 199 A. 519 (Ct. App. 1938), where a patron of a race track was denied damages for injuries suffered at the hands of a surging crowd. See also 65 C.J.S., Negligence, § 74.
Here, the injured plaintiff was aware of the barrier; there was due notice of its existence to all the parishioners; she did not intend to step over the chain; she had never done so; it was not per se a dangerous agency on the land; her fall came from another's ill-use of what was designed to be an obstruction to vehicular passage for the safety of all against such hazards, including the plaintiff herself, and certainly it was not so erected or arranged as to invite foot
passage over the chain itself. On the showing made, the accident was the result of the intervening act of another pedestrian. But we have no occasion to inquire into the principle of intervening causes, foreseeable and unforeseeable, normal incidents of the risk, or contributory negligence and assumption of risk; it suffices to say that defendant was plainly not guilty of negligence which proximately contributed to the pleaded injury. Compare Morril v. Morril, 104 N.J.L. 557 (E. & A. 1928); Taylor v. Kelvin, 121 N.J.L. 142 (E. & A. 1938).
Analogy may be found in the revolving- and swinging-door cases.
"Swinging doors in buildings and stores are installed and maintained for the accommodation of those who have occasion to enter such buildings. The operation of such doors is not within the exclusive control of the owner of the building or proprietor of the store. Customers and patrons take a very distinct part in their operation and are chargeable with the exercise of ordinary care in their use. Injury may occur in their operation from a lack of such care on the part of the persons who use them, and for whose negligence the owner or proprietor would be in no wise responsible." Olson v. Whitthorne & Swan, 203 Cal. 206, 263 P. 518, 58 A.L.R. 129 (Sup. Ct. 1928).
See also S.S. Kresge Co. v. Fader, 116 Ohio St. 718, 158 N.E. 174 (Sup. Ct. 1927); Annotation, 58 A.L.R. 132.
There is no suggestion here that the particular device was defective, or was ill-adapted to the purpose in view of protection against the hazards of vehicular use of the driveway, or was in anywise short of the generally accepted standard in such cases. The possessor of the land would be justified in assuming, after warning given, that those who came upon the land would know of the barrier and the risk of foot passage across the chain and govern themselves accordingly. Compare Bianchi v. South Park Presbyterian Church, 123 ...