On appeal from a judgment of the Superior Court, Appellate Division, whose opinion is reported at 84 N.J. Super. 411.
For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor and Schettino. For reversal -- Justices Hall and Haneman. Weintraub, C.J., concurs in result. Haneman, J. (dissenting). Justice Hall joins in this dissent.
The judgment is affirmed for the reasons expressed in the opinion of Judge Labrecque in the Appellate Division.
WEINTRAUB, C.J., concurs in result.
HANEMAN, J. (dissenting). The facts with which we are here concerned are generally adequately recited in the Appellate Division opinion, 84 N.J. Super. 411 (App. Div. 1964). The thesis of plaintiff's case is that he was hit by a stone thrown by some unknown person (presumably another child) while enjoying the playground facilities provided by the defendant; that the throwing of the stone and the contact of that missile with plaintiff was a foreseeable incident; and that it was defendant's duty to furnish sufficient supervisory personnel at the playground to prevent such an accident. The foundation of plaintiff's case is proof that the injury was caused by such a thrown stone, as only upon an affirmative determination of that postulate can the question of defendant's liability arise.
Neither plaintiff nor any of the other nine boys playing baseball with him, nor any of the numerous spectators, saw how plaintiff was injured. Aside from testimony by one of plaintiff's playmates that after plaintiff was struck, and bleeding profusely, he noticed a stone on the ground near where plaintiff had been standing, "with blood on it," plaintiff relies entirely upon testimony of stonethrowing antedating this accident as proof that it must have been a thrown stone which struck him in the eye. The testimony that children threw stones on prior occasions ran the gamut of from two or three times a year to once or twice a week. The description
of the stones thus allegedly thrown varied from pebbles to the size of golf balls. There was no evidence of stone-throwing in the vicinity of the ballfield on the day in question. The only evidence on this particular point is that one of the participants in the baseball game had seen two nine-year-old boys throwing stones about an hour before plaintiff's accident in a section some 350 feet away from, and not facing, the playing field in question. The manager of the housing project testified that there had been no complaints about stone-throwing nor any reports of accidents therefrom.
Proceeding from the hypothesis that the accident did occur as plaintiff alleges, the defendant can be liable only if it had a duty to this particular plaintiff to provide supervisory personnel adequate to prevent the tortious intervening infant behaviorism, and if it breached such a duty. Only after the imposition of such a duty is the question of negligence, i.e., the breach of that duty, reached. I conceive that no such duty should be imposed.
Although the Appellate Division opinion adverts to the fact that:
"Initially, it is to be noted that the area in question is one over which the landlord retained control. It was designed for the use to which it was being put at the time of the happening of the accident. The rule is well settled that a landlord owes to tenants and their children a duty of reasonable care as to such portions of the premises." 84 N.J. Super., at p. 417,
it in reality does not bottom its conclusion on traditional rules which govern tortious liability arising from the landlord-tenant relationship, e.g., Doud v. Housing Authority of City of Newark, 75 N.J. Super. 340, 344 (App. Div. 1962), but upon the more flexible thesis of a generalized standard of negligence applicable to all landowners, based upon care commensurate with the reasonably foreseeable danger, 84 N.J. Super., at pp. 417-418. The Appellate Division, in effect, follows that line of cases which has imposed a general duty on the owner or occupier of land to use reasonable care under the circumstances of the case. Thus, when the presence of
the child upon the land should have been anticipated, whether that child is a trespasser, licensee or invitee, a duty arises to protect that child from dangerous conditions existing on the land. The basis of liability is the foreseeability of harm; and the measure of duty is care in proportion to the foreseeable risk, regardless of the relationship of the landowner defendant to the infant plaintiff. As stated in the leading case of Strang v. South Jersey Broadcasting Co., 9 N.J. 38, 45-46 (1952): "The particular relation gives rise to a legal duty commensurate with the demands of reasonable foresight for harm." See Simmel v. N.J. Coop Co., 28 N.J. 1, 9 (1958); Wytupeck v. City of Camden, 25 N.J. 450, 464 (1957); Imre v. Riegel Paper Corp., 24 N.J. 438, 444-445 (1957); Healing v. Security Steel Equipment Corp., 51 N.J. Super. 123, 132-133 (App. Div. 1958). Thus, the decision herein cannot be limited to its facts, but the proposition of law now announced is as applicable to a private or public landowner as to a housing authority, as is the scope of the duty imposed.
Such a duty is defined in Wytupeck v. City of Camden, supra, 25 N.J., at pp. 461-462, as follows:
"'Duty' is not an abstract conception; and the standard of conduct is not an absolute. Duty arises out of a relation between the particular parties that in right reason and essential justice enjoins the protection of the one by the other against what the law by common consent deems an unreasonable risk of harm, such as is reasonably foreseeable, Lokar v. Church of the Sacred Heart, 24 N.J. 549, (1957). In the field of negligence, duty signifies conformance 'to the legal standard of reasonable conduct in the light of the apparent risk'; the essential question is whether 'the plaintiff's interests are entitled to legal protection against the defendant's conduct.' Prosser on Torts (2 d ed.), section 36. Duty is largely grounded in the natural responsibilities of social living and human relations, such as have the recognition of reasonable men; and fulfillment is had by a correlative standard of conduct.
'Duty' is not a rigid formalism according to the standards of a simpler society, immune to the equally compelling needs of the present order; duty must of necessity adjust to the changing social relations and exigencies and man's relation to his fellows; and accordingly the standard of conduct is care commensurate with the reasonably
foreseeable danger, such as would be reasonable in the light of the recognizable risk, for negligence is essentially 'a matter of risk * * * that is to say of recognizable danger of injury.' Prosser, Ibid., section 30."
An integral element to be considered on the question of the existence of a duty is the factual determination whether there exists a reasonably foreseeable danger against which the defendant should protect the plaintiff. The test has been said to be whether the reasonably prudent person would recognize and foresee an unreasonable risk or likelihood of harm or danger to others. McCabe v. N.J. Turnpike Auth., 35 N.J. 26, 35 (1961); Rappaport v. Nichols, 31 N.J. 188, 201 (1959). The negligence may consist in the creation of a ...