Schettino, Hall and Gaulkin. The opinion of the court was delivered by Schettino, J.A.D.
Appeal is taken from a judgment entered upon the granting of a motion of involuntary dismissal pursuant to R.R. 4:42-2(b). This is an infant trespasser case. Plaintiff, Martin H. Coughlin, is the father of plaintiff, Joseph. Hereafter Joseph will be referred to as plaintiff.
In Simmel v. New Jersey Coop Co. , 28 N.J. 1, 143 A. 2 d 521 (1958), Mr. Justice Burling comprehensively reviews the history of liability of a landowner for negligent injury to infant trespassers. After reviewing the history of the law and its development from no liability to the "relatively new" rule imposing liability, the Supreme Court stated that, since the opinion in Strang v. South Jersey Broadcasting Co. , 9 N.J. 38 (1952), "the rationale of the Restatement of Torts , § 339 has taken firm roots in our jurisprudence." (28 N.J. at page 9.) That section states:
"Artificial Conditions Highly Dangerous To Trespassing Children.
A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if
(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and
(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein."
However, the Supreme Court points out "that the landowner or occupier is not an insurer of the infant." Simmel case, supra , 28 N.J. at page 11.
We are reminded by Judge Conford in Hoff v. National Products Refining Co. , 38 N.J. Super. 222, 233 (App. Div. 1955) that:
"An examination of section 339 of the Restatement of Torts indicates it is part of a comprehensive scheme for formulation of the degree of liability of landowners for bodily injury to any trespasser, sui juris or not, comprised of sections 333 to 339, inclusive. Section 333 states the hypothesis that the possessor of land does not owe a trespasser the duty of reasonable care except as stated in sections 334 to 339. Sections 334 to 338 impose a gradation of liability to trespassers, whether or not children, dependent on the kind of activity or condition maintained, the extent of the area of danger known to be the subject of trespass, and the nature of the landowner's warning to such trespassers. In this progression there is but a slight, yet appreciable, expansion of the degree of liability by Section 339 in favor of 'young children.' The gradual merging of the area of ...