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Lorusso v. Decarlo

Decided: December 20, 1957.

FRANK LORUSSO, AN INFANT BY HIS GUARDIAN AD LITEM, JOSEPH LORUSSO, AND JOSEPH LORUSSO AND MARGARET LORUSSO, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
DOMINICK DECARLO, DEFENDANT-RESPONDENT



Clapp, Jayne and Schettino. The opinion of the court was delivered by Clapp, S.j.a.d.

Clapp

This action, sounding in negligence, was dismissed at the close of plaintiffs' case. Plaintiffs appeal.

As in Simmel v. New Jersey Coop Co. , 47 N.J. Super. 509 (App. Div. 1957), we are concerned with an infant plaintiff, four years of age, who was seriously burned by a fire while trespassing on a vacant lot belonging to the defendant. As in Simmel , the child and his family lived across the street from the lot, and the fire was the work of a third person, unauthorized by the defendant. In the present case, it may be inferred, the third person was an old man, Joseph Serino, a neighbor, who had been burning newspapers in a wire basket carried by him over to the lot from his home across the street. He then apparently departed from the lot before the accident occurred, leaving the basket behind.

The law on this subject has now developed sufficiently so that it may be stated as a general matter that an occupier of land renders himself liable for injuries to children trespassing on the land if an ordinary prudent person in his position would have reason to anticipate the presence of the children and also anticipate that they would be subjected to an unreasonable risk of harm as a result of some condition on the land -- at least if the condition is an artificial one. Further see Simmel v. New Jersey Coop Co., supra; Wytupeck v. Camden , 25 N.J. 450 (1957). Various phases of this proposition will be dealt with below in connection with the relevant circumstances. In relating those circumstances, we of course give the plaintiff the benefit of all inferences fairly deducible from the proofs.

The first question is whether the presence of children on the lot was reasonably foreseeable. In Harper and James, Torts , 1451 (1956), it is said:

"* * * there must be the probability that children will be exposed to the danger. This may be shown by evidence of allurement. It may also be shown by evidence of repeated former trespasses, by the proximity of the danger to a highway or to residences, schools, or playgrounds where children are likely to be, by the accessibility of the dangerous condition to children, or by any other evidence having a rational tendency to indicate a likelihood of children's presence in such a way as to bring that fact home to the occupier. Unless plaintiff can show the likelihood of children's presence where the danger was maintained, he cannot recover under this theory."

Prosser, Torts (2 d ed.), 441, says:

"* * * the presence of young children may be foreseeable on the basis of past trespasses, proximity to places where children are likely to be, * * * or any other evidence which would lead a reasonable man to anticipate the trespass."

The vacant lot, with which we are concerned, is in a somewhat populated community; and in such a community some vacant lots may attract the children of the neighborhood. In any event, there is proof here that during the six months before the accident children played on this lot "quite often" "all day long." There is, to be sure, no direct testimony establishing knowledge of this on the part of the defendant. But he was seen on the lot "quite often * * * at least twice a week." Moreover the lot was used as a parking facility for his tavern. This tavern -- he apparently lived in the same building (in any event he lived in the block) -- was situated across the street from the lot, and his mother lived on one side of the lot. From these circumstances it seems to us that a jury might properly infer that the lot was within his view very often, and that he could reasonably have foreseen that a child or children would play on it.

We may summarily dispose of the second question, about which much of the argument in this case has centered. That matter was decided in Simmel v. New Jersey Coop Co.,

supra , wherein we held that an occupier of land may be held liable for injuries to trespassing children resulting from an artificial condition created by a third person (here Serino), whether or not defendant, ...


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