Conford, Foley and Scherer. The opinion of the court was delivered by Foley, J.A.D. Conford, J.A.D., dissenting.
This is an appeal from a judgment entered on a jury verdict in plaintiffs' favor. The question presented is whether or not defendant's motion for a judgment of involuntary dismissal should have been granted.
The essential facts are not in dispute. Defendant corporation was in the course of constructing a multiple housing development in Paramus. At the time of the accident the homes therein were in various stages of completion. Defendant had knowledge that children played in the area, this being limited, however, to knowledge that they played on a topsoil pile on the exterior of the premises.
On March 9, 1955 the infant plaintiff, then 11 years of age, accompanied by four other boys wandered into the development area. Once there, they were attracted by a house, the exterior of which had been completely framed. They tried the front door but it was locked. Finding a ladder leaning against the building they propped it up and the smallest child climbed it, opened a window, crawled in and then opened the locked door from the inside allowing the others to enter. Because the foundation excavation had not yet been refilled, the window was located about 12 feet above ground level. In going through the house they came upon an electric chain saw which was on a work table, located a switch on the under side of the table and set the saw in motion. One of the boys who had some familiarity with the use of electric tools ran a board through while the others looked on. Plaintiff in attempting to do the same severed one of his fingers and injured another. He admitted that he had seen the saw in operation and that he knew it was a dangerous device. Upon this evidence defendant moved for dismissal urging that there was no proof of the violation of a duty to the infant and also that he was guilty of contributory negligence and assumption of risk as a matter of law.
The sole ground assigned for reversal is that plaintiffs failed to establish a prima facie case of defendant's infraction of its duty to the trespassing infant plaintiff.
The infant trespasser rule laid down in Restatement, Torts , § 339 is now firmly imbedded in the law of this state. Simmel v. New Jersey Coop Co. , 28 N.J. 1 (1958); Wytupeck v. Camden , 25 N.J. 450 (1957); Harris v. Mentes-Williams Co., Inc. , 11 N.J. 559 (1953); Coughlin v. U.S. Tool Co., Inc. , 52 N.J. Super. 341 (App. Div. 1958), certification denied 28 N.J. 527 (1959); Diglio v. Jersey Central Power & Light Co. , 39 N.J. Super. 140 (App. Div. 1956); Hoff v. Natural Refining Products Co. , 38 N.J. Super. 222 (App. Div. 1955). The 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."
As was said in Simmel v. New Jersey Coop Co., supra , 28 N.J. at page 9, no inflexible rule can be set forth concerning the "prophylactic measures" to be taken by a defendant in a particular situation; and in Diglio v. Jersey Central Power & Light Co., supra , 39 N.J. Super. at page 145, the circumstances of each case are of pivotal significance. Thus the factual complex must be examined to determine whether or not the case falls within the governance of the rule. Guidance in the pursuit of this inquiry is found in the precedents which have developed since the acceptance of the doctrine by our courts. Simmel v. New Jersey Coop Co., supra , emphasized that the land owner or occupier is not an insurer of the infant; and in Strang v. South Jersey Broadcasting Corp. , 9 N.J. 38, 45 (1952) the court said "The basis of liability is the foreseeability of harm, and the measure of duty is care in proportion to the foreseeable risk." Coughlin v. U.S. Tool Co., supra , in which recovery was denied, stressed that proof of compliance with all four conditions recited in the rule is requisite to a prima facie case, 52 N.J. Super. at page 346.
In the Restatement itself the bounds of the duty imposed are discussed:
"The duty which the rule stated in this Section imposes upon the possessor of land is based upon the well-known tendency of children to trespass upon the land of others and the necessity of protecting
them, even though trespassers, from their childish lack of attention and judgment. The duty of the possessor, therefore, is only to keep so much of the land upon which he should recognize the likelihood of children trespassing, free from those conditions which, though observable by adults, are likely not to be observed by children or which contain risks the full extent of which an adult would realize but which are beyond the imperfect realization of children. It does not extend to those conditions the existence of which is obvious even to children and the risk of which is fully realized by them." Restatement, Torts , § 339, note b. (Emphasis added.)
With these principles in mind, we deem it advisable to treat with each of the conditions and with the proof in support thereof separately, as far as that may be practicable.
"(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."
"This means first of all that the defendant must have reason to anticipate the presence of the child at the place of danger, where any such reason is lacking, there is no duty to look out for him, and no liability." (Emphasis added.) Prosser, Trespassing Children , 47 Cal. L. Rev. 427, 448 (1959). As we have already noted, defendant's only knowledge of the prior presence of children on any part of the premises was that on occasion they played on the topsoil pile. Judged by any reasonable interpretation of "foreseeability" we cannot accept the proffered thesis that knowing of this, defendant should also have known that it was likely that a child would enter its building by climbing through a window 12 feet above ground level; open a door which defendant had taken the precaution to lock, and admit other children to the building. Nor do we think that defendant should be charged with foreseeing that, having entered, the children would place in motion and operate an electric saw and by their own acts create a "place of danger." To hold otherwise would be to make "foresight" synonymous with "omniscience."
"(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 ...