On appeal from the Superior Court of New Jersey, Law Division, Union County.
Fritz, Botter and Ard. The opinion of the court was delivered by Ard, J.A.D.
The deceased, plaintiff's husband, died in a heroic attempt to rescue two 15-year-old boys who had fallen through the ice while skating on a reservoir owned by Middlesex Water Company (water company) and located in the Township of Clark (township). At the close of plaintiff's case the trial judge granted the water company's motion for an involuntary dismissal (R. 4:37-2(b)) and the township's motion for judgment (R. 4:40-1). Plaintiff appeals both rulings.
The standard for determining a motion for judgment under R. 4:40-1 is the same as that governing the resolution of a motion for involuntary dismissal under R. 4:37-2(b). In reviewing both motions the judge must accept as true all the evidence which supports the position of the party defending against the motion and must accord him the benefit of all legitimate inferences which can be deduced therefrom, and if reasonable minds could differ, the motion must be denied. Dolson v. Anastasia , 55 N.J. 2, 5 (1969).
With this test in mind, plaintiff's proofs establish the following: In 1907 the water company created a lake or reservoir by damming a small stream. Over the passage of years the surrounding area became built-up to such an extent that the 94 acres of water surface now sits in the midst of a largely residential area. The entire property owned by the water company is 136 acres, of which 94 acres consist of surface waters. It is bounded by a regional high school,
a ball field, a tennis court 60 to 80 feet from the water, an athletic field about the same distance from the water and another athletic field approximately 100 feet away. There are also private homes in the area, and some of the homes' rear lot lines are very near the water. There is no fence around the water's edge near the site of the tragic event. The area residents, including children, have made continual use of the reservoir over the years for ice skating. At times as many as 500 people were skating on the ice at the same time. On the day of the drowning a witness testified that there were "probably less than 100 people" on the ice. From this testimony it can be reasonably inferred that there were a sizable number of skaters on the ice at the time of the tragedy.
During the period 1959 to 1969 the water company hired special employees to patrol the reservoir, but that had been discontinued. At the time of the accident there were no regular patrols, although its employees would warn off trespassers as an incident to their other duties. The reservoir also had "no trespassing" signs placed around it. It can be inferred that the water company was aware of the use of the reservoir for ice skating.
The water company and its predecessor constructed the dam and built the reservoir for commercial purposes. A treatment plant and pumping station are located adjacent to the reservoir. Since 1969 the reservoir has been maintained by the water company as a standby system. The reservoir and facilities were used "in the event of failure of some of the other sources of supply or excessive demand that cannot be met from our other source at which time this plant would be operated." In prior years the police officers of the township were ordered by their superiors to check the reservoir and warn off anyone if the ice was dangerous for skating.
On February 6, 1972 plaintiff's decedent drowned while attempting to rescue two 15-year-old boys who had entered upon the reservoir, ice-skated and fell through the ice. One
of the boys drowned with decedent. On the date of the accident it was the first occasion of the winter season that portions of the reservoir's waters had frozen solid enough to permit ice-skating. Snow which had begun to fall earlier on the day in question covered the icy surface of the reservoir so that the thickness of the ice was not easily ascertained.
Before considering the claim with respect to each defendant, we note a general principle of law which applies to rescuers such as decedent in claims of this nature. A tortfeasor may be liable to a rescuer because of the negligence of the tortfeasor which caused the peril to the one rescued. Odar v. Chase Manhattan Bank , 138 N.J. Super. 464 (App. Div. 1976); Demetro v. Pennsylvania R.R. Co. , 90 N.J. Super. 308 (App. Div. 1966); Cafone v. Spiniello Constr. Co. , 42 N.J. Super. 590 (App. Div. 1956), certif. den. 23 N.J. 258 (1957). We therefore direct our inquiry to the duty owed the rescued boys by the defendants.
We first address ourselves to the question of the liability of the township. Plaintiff argues that there was evidence before the court from which a jury could reasonably infer that the police were negligent in patrolling the reservoir area after being ordered by their chief "to chase ...