On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
Approvef for Publication November 25, 1997.
Before Judges Pressler, Wallace and Carchman. The opinion of the court was delivered by Wallace, Jr., J.A.D.
The opinion of the court was delivered by: Wallace
The opinion of the court was delivered by
Plaintiff Patricia Blackburn appeals from summary judgment granted in favor of defendant. The motion Judge concluded that plaintiff was not a rescuer but rather a trespasser to whom no duty was owed. On appeal, plaintiff urges that the motion Judge erred in concluding that defendant owed her no duty of care. She asserts that she was an invitee under theories of implied invitation and the rescue doctrine at the time she suffered her accident. We hold that there were genuine issues of material fact that precluded the granting of summary judgment. R. 4:46-2. Specifically, there were genuine issues regarding whether defendant breached a duty to plaintiff by allowing an accumulation of water on its property and whether plaintiff's rescue attempt was reasonable.
Viewing the record in the light most favorable to the plaintiff, as we must, see Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540, 666 A.2d 146 (1995), the record establishes the following facts. In April 1993, plaintiff was visiting the home of a friend in Mount Holly. Plaintiff's friend lived across the street from the property of defendant Broad Street Baptist Church and had a three year old child who played on defendant's property. Defendant had a large open yard without a fence. There is also a low point on the property where rain water accumulated. It had rained quite heavily that day and a pond-like puddle claimed to be two and a half feet deep formed in the low area. At some point while plaintiff was inside her friend's home, the three year old child noticed her tricycle across the street on defendant's property and wanted to bring it out of the rain. Plaintiff instructed the little girl to stay in the house and that she would retrieve the tricycle.
Plaintiff crossed the street to get the tricycle and noticed the large pond-like puddle that had accumulated on defendant's property as a result of the rain. The tricycle was on the other side of the pond-like puddle and plaintiff intended to avoid the water. Suddenly, she heard the little girl behind her saying that she would get her tricycle. Plaintiff realized that the little girl had walked into the large puddle and was in the middle of it. Plaintiff was fearful that due to the young age of the child and given the depth of the water that the child was in danger. She immediately walked towards the child, but before she could reach her, plaintiff slipped in the mud under the water, fracturing her leg.
William Nicholson, an engineer, had prepared a site plan of the property for defendant in 1994. The site of the accident was located southeast of the stone parking lot behind the church building. Nicholson testified at deposition that water from certain portions of the church roof and water from the parking lot drained into the low area where the accident occurred. In addition, rain water would flow from the street adjacent to the parking lot, through the lot, and into the low area.
Reverend Chapman, the pastor of the church at the time of the accident, testified that he was aware that during and after heavy rains water would accumulate in the area where the accident occurred. Some time after the accident, the church installed a fence to prevent children from coming onto the property. Rev. Chapman was aware that children played on the property. He stated:
The area is open and people can cut through from -- you know, they used to cut through from Union Street down to Risdon Street or walk through, back and forth, around the corner. There's an alleyway on the side. What really concerned me the most, the reason why we felt the necessity for the fence to be put up, we had problems on our annex, which is across the street. We would observe children on the -- it's a flat building on one side and building, tear off the roof. We had to finally put up plexiglass storm windows in the annex and we have a bunch of star effects in the plexiglass windows now. We chose that because asking these children to get off and everything, even some adults said, you know, they played there. And I said, well, they're damaging our property, so please have them leave. And so we went to the police and said what can we do, and they said you need to put a fence. So the annex was fenced in first and that stopped that. Then we observed the children coming on this property.
Reverend Chapman testified that the fencing cost about $2,000. However, he noted that the fencing Discussions that he had had with the board prior to installing the fence had not included any reference to protecting children from the low area where the accident occurred.
Based on this evidence, the motion Judge concluded that plaintiff was a trespasser and that her status did not change to an invitee as a result of her attempt to remove the child from the water. The Judge was satisfied that plaintiff perceived no "immediate danger to the child, and therefore she was not a rescuer." Further, the Judge concluded that the pond was a natural condition, rather than an artificial one. Because the water was clearly obvious, the Judge found that there was no need to warn even a trespasser. The motion Judge analyzed the law as it applied to an adult trespasser and concluded that plaintiff was not a rescuer. We disagree.
In our view, this case should be analyzed from the position of the infant trespasser. Plaintiff only entered the area where she fell because she observed the three year old child in the pond and believed the child was in danger. We noted recently that the "rescue doctrine has long been a part of our State's social fabric." Burns v. Market Transit Facility, 281 N.J. Super. 304, 310, 657 A.2d 472 (App. Div. 1995). In this regard, we stressed the comments of Justice Cardozo, ...