Sullivan, Lewis and Kolovsky. The opinion of the court was delivered by Sullivan, S.j.a.d. Kolovsky, J.A.D. (dissenting).
Plaintiff, as administrator ad prosequendum, recovered a $13,500 judgment in a suit under the Death Act. The decedent was an infant trespasser on defendant's property. He was killed when a heavy two-wheel cement mixer with which he and three other boys were playing was caused to topple forward.
The boys had entered upon defendant's property through a hole in the wall of defendant's shed which hole had existed for "some time" and had been used by boys on prior occasions to gain entry to defendant's property. The mixer had been left by defendant in an upright position with the towing bar raised. Decedent, who was in front of the mixer, was pinned under the towing bar when the machine toppled forward.
We are satisfied that the evidence made out a jury question of defendant's liability within the requirements of section 339 of the Restatement of Torts. We also conclude that the court's charge as a whole was adequate as well as correct. Defendant's objections to it are not well taken. The verdict of $13,500 was not excessive as a matter of law.
KOLOVSKY, J.A.D. (dissenting). In my opinion, defendant's motion for judgment should have been granted.
Under section 339 of the Restatement of Torts, in order to subject a possessor of land to liability for physical harm to children trespassing thereon caused by an artificial condition on the land, it must appear that:
"(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and * * *." 2 Restatement of Torts 2 d (1965) § 339
As the Restatement's comment on clauses (a) and (b) of section 339 points out,
"g. 'Has reason to know.' In order for the rule stated in this Section to apply, the possessor of the land must know or have reason to know that children are likely to trespass on the land. 'Has reason to know' is defined in § 12 to mean that he has information from which a person of reasonable intelligence, or of the superior intelligence of the actor, would infer that the fact in question exists, or would govern his conduct upon the assumption that it does exist. It is not enough that the possessor 'should know' of trespasses (see § 12), in the sense that a reasonable man in his position would investigate to discover the fact. The possessor is under no duty to make any investigation or inquiry as to whether children are trespassing, or are likely to trespass, until he is notified, or otherwise receives information, which would lead a reasonable man to that conclusion.
h. 'Has reason to know.' The statement made in Comment g applies equally as to the possessor's knowledge, or reason to know, that the particular condition exists upon his land, and that it is likely to be dangerous to trespassing children. The possessor is under no duty to inspect or police his land to discover whether such conditions exist; and he becomes subject to liability only when he knows or has ...