On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
Approved for Publication October 31, 1996.
Before Judges Havey, Brochin and Kestin. The opinion of the court was delivered by Havey, P.j.a.d.
The opinion of the court was delivered by: Havey
The opinion of the court was delivered by
This personal injury action involves the application of the infant-trespasser rule under the Restatement (Second) of Torts § 339 (1963) and (1964) (Restatement). Plaintiffs appeal from a summary judgment dismissing their complaint in favor of defendants Robert Piedilato and Bruce and Wayne Puff. While trespassing on Mischief Night, fourteen-year old plaintiff, Samuel Vega, fell into an air/light shaft between two three-story apartment buildings owned by defendants. In granting summary judgment, the motion Judge concluded that the air/light shaft did not pose an "unreasonable risk" because it was an "obvious" danger. Concluding that the fall was an "act of youthful recklessness and bravado" on Samuel's part, the Judge found that plaintiffs failed to satisfy clauses (b) and (c) of § 339. We agree and affirm.
Defendants owned two contiguous multiple-family dwellings on State Street in Perth Amboy; Piedilato owned number 685, and the Puffs owned number 687. Both buildings are three stories, approximately forty-feet high at their respective rooftops. The roofs are relatively flat, pitched only for drainage. The structures abut at the front and rear of the buildings, but an air/light shaft separates them in the middle of the common property line. The air/light shaft is irregular in shape and approximately fifteen-feet long. At its greatest width, the air shaft is approximately fifteen feet across. A twenty-inch high parapet surrounds the air/light shaft on 687 State Street; there is no parapet on the 685 State Street side of the shaft.
Samuel was nearly fifteen years old on the evening of October 30, 1991, "Mischief Night." He and two friends, Manuel Rodriguez and Jose Rodriguez, decided to throw tomatoes and eggs at cars from the roof of the Puff building (# 687), in which Manuel lived. Vandals had damaged the locking mechanism on the entrance to the Piedilato building (# 685), enabling the boys to enter it without difficulty. They gained access to the Piedilato roof via a missing roof-hatch door, breaking through a plastic bag which covered the opening. Once on the roof of the Piedilato building, they simply stepped onto the Puff building. After the boys ran out of eggs and tomatoes they left the roof to retrieve more. They returned to the roofs and were joined by another friend, Omar Pichardo. Omar left before the accident happened.
All of the boys, including Samuel, had crossed back and forth between the two roofs several times during the evening. Manuel stated that they crossed at the front and rear of the air/light shaft in order to avoid it.
Plaintiffs' expert, Joseph Triano, when asked whether the air/light shaft would have been observable to Samuel, testified "I can only presume that since they entered the roof at 685 and went to the roof of 687 that the air shaft is very obvious and that they would know that it was there." Plaintiffs' other expert, Herbert Feist, described the air/light shaft as "fairly substantial."
After being on the Puff roof for approximately three hours, Manuel spotted a police car and yelled to Samuel and Jose that the police were coming. They all ran to escape. According to Manuel, in order to avoid being seen from the rear of the building, he and Samuel decided to jump over the air/light shaft near the middle of the roofs. Manuel's deposition testimony is as follows:
A We were trying to jump that big hole to the other building.
Q So you were going to try and jump over the big hole?
Q Why didn't you go to the front or the back where the roofs were touching?
A We went to the back, the police was coming, so we were like, "Yeah, he's coming." So the big hole, we jumped that big hole. We were scared.
Q So after you saw the police coming did you start running toward the back of the building?
Q You started running toward the middle of the building?
Q Which way did [Samuel] start running after you told him the cops were coming?
Q He started running toward the ...