Goldmann, Freund and Foley. The opinion of the court was delivered by Foley, J.A.D.
[75 NJSuper Page 342] In this negligence action a jury returned verdicts of $15,000 in favor of the infant plaintiff for personal injuries, and $648.85 in favor of his father for medical expenses. The trial court denied defendant's subsequent motion for a new trial of the infant's case, but set aside the verdict for the father upon the ground that his claim was barred by the statute of limitations. Defendant now appeals. No cross-appeal is taken.
The action was predicated upon an accident which occurred in a multiple housing development in the City of Newark on July 16, 1952. At that time the infant plaintiff, then four years of age, resided with his grandmother Margaret Doud, a tenant. The case was consolidated for trial with another negligence action between the same parties in which the child suffered personal injuries on June 10, 1952 in a playground area on the premises. In that case the jury also returned verdicts in favor of both plaintiffs, and there also a motion for a new trial was denied as to the infant's claim but granted as to the father's recovery because of the running of the statutory limitation. Neither side has appealed from the resulting judgment therein.
The facts are not in substantial dispute. The housing development is of conventional design. It consists of ten multiple family dwellings with intercommunicating sidewalks used in common by tenants and their invitees, which eventually lead to a public thoroughfare. Areas are set aside and facilities are maintained thereon for the convenient use of the premises by the tenants and their families, control of which is retained by the landlord. Among the communal facilities is a "community hall" which is used by children for recreational purposes. This facility is located in a section of the dwelling unit which was occupied by the child and his grandmother. Originally this portion of the building was separated from a nearby sidewalk by a grass area, the perimeter of which was curved in contour, but when the efforts to raise grass therein proved to be impractical because of constant trampling by children at play, defendant paved it with "belgian block," set in concrete. Whether by intention or because of varying sizes of the stones, the surface was irregular, levels of the integrated blocks varying by 1/2"-1" to to 1 1/2" from those adjacent to them. In effect, the pavement provides the entranceway from the sidewalk to the community hall. Probably for aesthetic reasons, but necessarily to accommodate for the semicircular belgian block entranceway, the sidewalk, running
slightly downgrade as it led from the plaintiff's dwelling, curves to the left as it becomes conjoined with the belgian block pavement, in such fashion that one failing to negotiate the curve would find himself on the bumpy surface which we have described.
On July 16, 1952 the infant plaintiff and two young companions were at play, the particular form of which was to ride a two-wheel scooter, equipped with a brake, down the incline and to stop it before it would, by proceeding in direct course, leave the smooth surface of the sidewalk and be projected upon the uneven surface of the belgian blocks -- in short, they were indulging the characteristically childlike impulse (not always outgrown) to "live dangerously." What was all but inevitable happened. John, riding the scooter down the incline, mounted the belgian block surface and by reason of its unevenness was jolted to the ground and sustained a spiral fracture of the middle and upper third of the femur of his right leg.
It is clear that the resident children had unrestricted use of the parts of the premises herein involved. In fact, it is not suggested by defendant that either by the operation of the scooter or by permitting it to be propelled upon the belgian blocks the child exceeded his invitation to use the premises. As will be pointed out, no more is said than that the portion of the premises on which the accident occurred was not physically suited to the use to which it was put. Hence the application of the child trespasser doctrine is not here involved. Cf. Simmel v. N.J. Coop Co. , 28 N.J. 1 (1958); Restatement of Torts , § 339 (1934); Prosser on Torts (2 d ed. 1955), p. 440.
It is settled that a landlord owes a duty of reasonable care with respect to the portions of a premises which are not demised and remain in the landlord's control. Michaels v. Brookchester, Inc. , 26 N.J. 379, 382 (1958). Consequently, as regards the liability aspects of the case, the question is presented of whether from the stated facts a permissible inference may be drawn that defendant violated
its general duty to construct and maintain the premises so as to preclude reasonably foreseeable injuries to this infant plaintiff who, because of his tender years, presumptively was not chargeable with contributory negligence.
Defendant argues that there "was no proof in the case that the Belgian block area was designed for use by children or adults as a place where one would operate a scooter. Indeed the very nature of such a construction obviously would make it undesirable and unsuited for a scooter operation, which requires a level plane." (Emphasis added)
Accepting this premise, we conclude that it spells out a jury question of defendant's legal liability in this case. It was open to a jury to find that the defendant knew or should have known that small children customarily operated scooters and like contraptions on the sidewalk adjacent to an area which was so paved as to be unsuitable to such use, and that the contour of the sidewalk and the pavement was such as to make it reasonably foreseeable that whether intentionally or otherwise a child was likely to go upon the uneven, and hence dangerous, surface. Thus, the jury ...