Leonard, Halpern and Rizzi. The opinion of the court was delivered by Leonard, J.A.D.
This is an action in negligence to recover damages for injuries sustained by infant plaintiff Salvatore Caltavuturo when he stepped through a large hole in a rusted chain-link fence partially surrounding Passaic public school 11, which he attended.
Suit was originally brought by Salvatore through his father Cateno as guardian ad litem and by his father individually against the City of Passaic (Passaic) only, alleging that the city was negligent in maintaining the area in and around the fence to which it held title. Thereafter Passaic served a third-party complaint against the Board of Education of the City of Passaic (board) and Seymour Puckowitz, the principal of public school 11, seeking contribution and indemnification. Plaintiffs then served an amended complaint naming the city, the board and Puckowitz as parties defendant.
The matter came on for jury trial and at the conclusion of plaintiffs' case, on motion, the action was dismissed as to all defendants. The board and the principal were relieved of liability by the trial court on the ground that Salvatore was not injured on school property and, in any event, neither the board nor Puckowitz owed a duty of care to him under the circumstances presented. Further, even if a duty were owed, plaintiffs' proofs were insufficient in establishing a
deviation from the norm. As to Passaic, the court determined that its activity in connection with maintaining the fence was governmental in nature and, alternatively, N.J.S.A. 40:9-2, then in effect, specifically immunized Passaic from liability. Plaintiffs' appeal raises claims of error in the dismissal ordered with respect to all defendants.
Plaintiffs' evidence, taken in its most favorable light, disclosed that on December 12, 1968, the date of the occurrence in question, the approximately 1,500 students of public school 11 were dismissed to go home for lunch at 11:40 A.M. since food is not available on the premises. Puckowitz, called as plaintiffs' witness, testified that at the time students were dismissed for lunch and when they reported back to school, two gym teachers, two vice-principals and he stationed themselves on the playground which was divided into several supervisory areas. Normally, by 11:55 A.M. all children had left the school grounds and the administrative staff returned to the school from the playground to eat a quick lunch.
Salvatore, then 12 years of age, was a school crossing guard. He, as well as all members of the school patrol, were excused at 11:35 in order to assume their respective posts. On the day in question he assisted several children across an intersection of two streets fronting the school.
Shortly before noon, following completion of his crossing-guard duties, Salvatore and a friend started home for lunch. As a shortcut the boys re-entered a playground area which adjoined the school through a six-feet wide by eight-feet high hole in the chain-linked fence which enclosed the playground on one side. Salvatore cut his right knee on a jagged, rough-edged portion of the fence causing his leg to become inflamed. Eventually, Salvatore developed osteomyelitis, a permanent bone disease.
The fence is mounted on a concrete base which varies in height from a few inches to over two feet. At the point Salvatore was injured there is a two-foot drop from the sidewalk to the concrete yard below. Originally the fence
completely enclosed several tennis courts. Although painted boundary lines remain visible, there was testimony from the street foreman of Passaic's Department of Public Works that approximately 12 years previously the nets were taken down and the holes caused by the removal of the poles to which the nets were attached filled in. Since that time the school has routinely used the area as a playground. No natural dividing line exists indicating where school property ends and municipal-owned land begins. Indeed, prior to Salvatore's accident Puckowitz did not know whether the board or Passaic owned the property in question. The street foreman further testified that although Passaic's maintenance personnel "constantly" repaired the fence, new holes, cut by children using pliers, would almost immediately appear upon completion of the repairs.
Passaic's answers to plaintiffs' written demand for admissions were read into the record. Therein it admitted that prior to the accident it had actual knowledge that large holes in the fence surrounding the former tennis court area were used as passageways by school children and others; that links of the fence had become corroded, cut and jagged; and that the portion of the fence which was the situs of the accident had fallen into disrepair. In fact, so often did children cut new paths through the fence that, according to the testimony of the senior maintenance man employed by Passaic, a quarter of the fence was removed by him (although the stanchions remain) because "it just didn't ...