On appeal from Superior Court, Appellate Division, whose opinion is reported in 47 N.J. Super. 509.
For reversal -- Chief Justice Weintraub, and Justices Heher, Burling, Francis and Proctor. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Burling, J.
This is an action commenced in the Superior Court, Law Division, to recover damages for personal injury resulting from the alleged negligent maintenance of a dangerous condition upon defendant's premises. The defendant denied maintenance of the condition, asserting as a defense that the condition was created by third persons without defendant's consent or knowledge. The jury returned a verdict in the amount of $20,000 in favor of the infant plaintiff, William Arthur Simmel, and in favor of the plaintiff father, William Herman Simmel, in the amount of $7,500. The defendant, New Jersey Coop Company, appealed to the Superior Court, Appellate Division. That court affirmed the verdict in favor of the infant plaintiff and reduced the verdict in favor of his father from $7,500 to $1,602.30, the latter representing the amount of proven medical expenses. 47 N.J. Super. 509 (1957).
Thereafter the defendant's petition for certification and the plaintiff father's cross-petition for certification were granted by this court. 26 N.J. 168 (1958).
On December 13, 1954 the infant plaintiff, then four years of age, wandered onto an unenclosed vacant lot on the corner of Sixth and Jackson Streets, in the City of Hoboken, New Jersey. He stumbled on some junk which was on fire on the premises and was burned. The plaintiffs resided in a large housing project located across the street from the lot which contained an estimated 700 families and 1,000 children.
The defendant, the owner of the lot, is engaged in the business of assembling and renting chicken coops. The defendant
had closed title to the lot on November 22, 1954 and was engaged in the process of relocating its business from its old premises, several blocks away, to a building adjacent to the site in question on the date the injury occurred. The defendant did not actually commence operations at its new location until some 13 days after the event.
There was testimony that the vacant lot had been used as a dump for rubbish and debris for some time prior to December 13, 1954 and that its potential dangers were recognized by the residents of the neighborhood. It was said that men working in dump trucks of the Department of Public Works of Hoboken deposited rubbish and debris on the premises "every day." There was further testimony that there were fires on the premises "every day" or "practically every day" and that children were constantly playing there or cutting across the lot on their way to school. The fires were sometimes started by the men who dumped the rubbish onto the lot and sometimes by children. It was stipulated at the trial that:
"* * * there is no contention that the fire which was involved here was set by the defendant or any of its employees, agents or servants."
The defendant's motions for dismissal at the end of the plaintiffs' case and at the conclusion of the entire case were denied. Defendant's motion for a new trial was also denied.
Liability for negligent injury to infant trespassers is relatively new in this State. The rule imposing such liability, which has alternately been denominated as the turntable, playground or attractive nuisance doctrine, was early enunciated in this country in 1873 in the case of Sioux City & Pacific Railroad Co. v. Stout, 17 Wall 657, 21 L. Ed. 745 (U.S. 1873). For history and subsequent development see e.g., Green, "Landowner v. Intruder; Intruder v. Landowner," 21 Mich. L. Rev. 495 (1923); Hudson, "The Turntable Cases in the Federal Courts," 36 Harv. L. Rev. 826 (1923); Green, "Landowner's Responsibility to Children," 27 Tex. L. Rev. 1 (1948); James, "Tort Liability of Occupiers
of Land I; Duties Owed to Trespassers," 63 Yale L.J. 144 (1953).
The concept took some 50 years to percolate through American jurisprudence, but by 1923 it was recognized in various forms in 27 states. Green, supra, 21 Mich. L. Rev. 495, at pp. 505, 506. Its incorporation (and refinement) in the Restatement of Torts (§ 339) in 1934 expedited its recognition. See Prosser on Torts (2 d ed. 1955), p. 440.
For many years the courts of this State declared that a landowner or occupier owed no duty to exercise reasonable care towards infants who broke the close; that the sole duty, as in the case of adults, was to refrain from willfully injuring or trapping the infant. Vanderbeck v. Hendry, 34 N.J.L. 467 (Sup. Ct. 1871); Turess v. N.Y. Susq. & West. R.R. Co., 61 N.J.L. 314 (Sup. Ct. 1898); Fitzpatrick v. Cumberland Glass Mfg. Co., 61 N.J.L. 378 (Sup. Ct. 1898); Delaware, L. & W.R.R. Co. v. Reich, 61 N.J.L. 635 (E. & A. 1898); Friedman v. Snare & Triest Co., 71 N.J.L. 605 (E. & A. 1905); Tarlucki v. West Jersey, etc., R.R. Co., 80 N.J.L. 688 (Sup. Ct. 1910); Kaproli v. Central R.R. of N.J., 105 N.J.L. 225 (E. & A. 1928); Harrington v. Greidanus, 10 N.J. Misc. 710 (Sup. Ct. 1932) and see Note, "The Attractive Nuisance Doctrine -- Its Status in New Jersey," 8 Rutgers L. Rev. 378 (1954). But cf. Guinn v. Del. & Atl. Telephone Co., 72 N.J.L. 276 (E. & A. 1905). Under the pressure of persistently recurrent fact patterns of infant trespasser injury, the rule gave rise to the exception in extreme cases.
"Although the modern inclinations of teenagers and adults have become somewhat unpredictable, the natural propensities of children of tender years continue to be reasonably foreseeable. Their instincts have been too repeatedly observed over the ages to elude common knowledge. Their responsiveness to allurement has existed before the day of the Trojan horse; their proclivity to climb is old enough to have been a contributive factor to the conception of the Darwinian theory; and, as Lord Sumner put it, they are little barbarians who in the wantonness of infancy are prone to trespass." (Jayne, J., in Diglio v. Jersey Central Power & Light Co., 39 N.J. Super. 140, at page 141 (App. Div. 1956)).
Thus, in Piraccini v. Director General of Railroads, 95 N.J.L. 114 (E. & A. 1920) an infant, five years of age, was found "all in flames" on defendant's property. The property had been used as a playground by the children and children had constantly crossed it on their way to school. The fire on the premises had been set by defendant's employee in obedience to orders to clear the land of dry ...