Conford, Collester and Labrecque. The opinion of the court was delivered by Collester, J.A.D. Conford, S.j.a.d. (dissenting).
This is an appeal by plaintiff Harold Caliguire, individually and as administrator ad prosequendum of the estate of Vincent Caliguire, from a judgment of involuntary dismissal entered at the close of plaintiff's case in the Superior Court, Law Division.
On May 2, 1963, plaintiff's son, Vincent Caliguire, age 12, was injured when he fell from a rope suspended from a tree on defendant's property on which he had been swinging. He died two days later as a result of injuries sustained in the fall.
Plaintiff brought suit to recover damages for the personal injuries and wrongful death of his son. He charged that defendant was negligent in maintaining a dangerous condition on its property on which defendant knew or should have known children would be likely to trespass and that it permitted a rope attached to a tree to be used by children as a swing. Defendant denied it was negligent in the maintenance of its property and further denied all knowledge of the existence of the rope. It asserted as separate defenses (1) that the accident was caused by the act of a third party over which it had no control, (2) contributory negligence of the decedent, (3) that decedent was a trespasser, and (4) that it was absolved from liability under the doctrine of municipal immunity.
Defendant's property was an unimproved tract of land which it had acquired as the result of a tax foreclosure in 1952. It consisted of a steep slope or cliff located near the top of the Palisades which extended easterly down to Weehawken. Adjoining it on the west was a level tract of privately owned improved property known as the Abbey Inn site, about 90 to 100 feet in depth, which fronted on Mountain Road. Along most of the rear of the private tract was a wall, three feet in height and one and one-half feet in width, which marked the eastern boundary of the property. The Abbey Inn site was without trees or foliage, but the city property was covered with trees, boulders and heavy foliage, and the footing was dangerous.
The tree from which the rope was suspended was located 50 feet down the slope from the boundary wall. The rope was about seven or ten feet in length and the tree, which extended out on the side of the hill, was "somewhat taller." According to three children, who were playing with decedent on the slope and who witnessed the accident, the rope had been tied on the tree for a period of from two weeks to a month. None of the witnesses at the trial knew who placed the rope on the tree.
The accident happened when Vincent took the rope in his hands and swung out over the slope. He apparently lost his grip on the rope, then fell 15 feet to the ground and rolled another 15 feet down the slope.
The evidence showed that the children had played there daily for months before the accident. They testified that whenever they were observed by the police on the city or Abbey Inn property they were chased away.
Gerald Cerulli, a police officer of Union City, was called as a witness for plaintiff. He testified that he had patrolled the Abbey Inn area by motorcycle or police car for five years before the accident; that he passed along Mountain Road at least three times a day, and made an observation over the rear wall every day. He said whenever he saw children either on the private property or the slope of the city property beyond the wall he would chase them away; that there was a "standing order" to do so. He said that there was heavy foliage on the city property down from the wall and that he had never observed the rope suspended from the tree nor had anyone informed him of its existence.
The trial judge granted defendant's motion to dismiss holding that proof of actual knowledge of the existence of the rope was essential to establish a prima facie case. This appeal followed.
Plaintiff contends that the question of knowledge by defendant of the dangerous condition existing on its land was a factual issue for determination by the jury and that the court erred in dismissing the action. He alleges the proofs showed that defendant knew that children played on its property and argues that defendant was liable for Vincent's death because (1) it knew that the natural condition of the land was inherently dangerous, (2) it had constructive knowledge of the existence of the rope suspended from the tree upon which children would swing, and (3) in any event, based on the evidence and the logical inferences to be drawn therefrom, the jury could have found that defendant had actual knowledge of the existence of the rope swing.
The liability of a possessor of land for physical harm to children trespassing thereon is dealt with under the rule set forth in 2 Restatement, Torts, 2 d, § 339, p. 197 (1965). It provides:
"A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that ...