Sullivan, Foley and Leonard. The opinion of the court was delivered by Foley, J.A.D.
Plaintiffs appeal from a judgment entered upon a jury verdict of no cause of action.
Defendant was the owner of a two-family house located in Ridgefield Park, New Jersey. In August 1963 Mr. and Mrs. Conroy, parents of plaintiff Jeannie, entered into a two-year lease of three and one-half rooms on the ground floor of the house, and the use of the basement. The basement contained a tub equipped with a water connection which supplied hot and cold water. The hot water heater was connected to the furnace which served to furnish heat and hot water to all portions of the building, including the portions leased to plaintiffs. The heating system was equipped with a thermostat to control the heat and an apostat to control the temperature of the hot water supplied to the living quarters and the basement tub. The lease was negotiated by the Conroys and Allen Krichman, a stockholder of defendant, who acted as its agent and appears to have been the principal of the corporation.
It is undisputed that the parties agreed orally that the lessor would be responsible for "major" repairs of the leased premises, and the lessees for "minor" items of repair. The operating cost of the heating system and water supply was the obligation of the lessees.
The Conroys took possession on Labor Day 1963. They claimed that in the following months they found the hot water supply to be "too hot" and complained of this to Krichman. Krichman denied that there were such complaints. According to the Conroys they did not attempt to adjust the apostat and, indeed, they had no knowledge of the existence or operation of such a device.
On December 10, 1963 Jeannie, aged 7 years 11 months, was in the basement playing "catch" with her sister Nancy.
She testified that she was sitting on the "rim" of the tub, or as she called it the "sink." In the course of their play Nancy threw Jeannie a ball. Jeannie leaned back to catch it, lost her balance and fell into the tub. In falling her right arm accidentally struck the hot water faucet and caused it to be turned on. Scalding water poured out, inflicting second and third degree burns on her right arm from the armpit to the wrist, the right side of her breast and her right upper thigh. A lengthy hospitalization followed, and in spite of the fact that Jeannie has received extensive skin grafting there still remains scar tissue which will require future hospitalization and involve substantial expense to repair.
There was evidence that later that evening Thomas McArow, brother of Mrs. Conroy, accompanied by the Conroys, inspected the apostat. It was so dusty that he had to clean it to make certain what it was. Having done so he found that it was set for a temperature exceeding 240 degrees. He said that when he turned on the faucet "the steam in that water was unbelievably hot," adding that "when you took your hand out your hand would turn red from the faucets." He reduced the temperature level "to about 110, 120."
The court, in charging the jury, submitted the issue of Jeannie's contributory negligence. The charge was unobjectionable as a statement of the law, provided that the issue of contributory negligence was evidentially supported. At this point we should note that at the trial plaintiffs' attorney did not request that this issue raised by the pleadings be withdrawn, nor did he object to the inclusion in the charge the instruction respecting it. The present contention that contributory negligence was not in the case, so to speak, was made for the first time on a motion for a new trial (which was denied) and is now reiterated before us and presented as "plain error." We will pass for a moment the implications and impact of the plain error rule.
We are satisfied that in the circumstances of this case it was error for the court to have submitted the issue
of contributory negligence to the jury. Jeannie, as a member of the Conroy household, was an invitee in the basement and was free to use it for play which was not inherently dangerous, or did not involve activity which might subject her to a hazard which was foreseeable by her. Conduct which does not expose one to any foreseeable risk of a particular injury through a defendant's negligence is not available as a defense of contributory negligence. Prosser, Law of Torts (3 d ed. 1964), § 64, p. 432. Specifically, Jeannie was engaged in a simple act of play which is known to and practiced by most children. In itself it was not hazardous. Nor was sitting on the rim of the tub, in itself, contributory negligence such as would bar recovery in the ...