On certification to the Superior Court, Appellate Division, whose opinion is reported at 294 N.J. Super. 486 (1996).
The opinion of the court was delivered by: O'hern, J.
We granted certification, 149 N.J. 139 (1997), to consider whether our decision in Brett v. Great American Recreation, Inc., 144 N.J. 479 (1996), modified the infant-trespasser rule as formulated in section 339 of the Restatement (Second) of Torts (1965) (Restatement), and whether, under that formulation, the negligence of the trespassing child is double counted, first to determine whether a duty exists on the part of the landowner and again to reduce or eliminate an award for the minor. We conclude that our holding in Brett did not modify the Restatement and that there is no double counting. We, therefore, affirm the judgment of the Appellate Division dismissing the minor's claim.
Because the case arises on defendants' motion for summary judgment, we accept the facts alleged in a light most favorable to the minor claimant. Plaintiff, Samuel Vega, *fn1 was fourteen years old at the time of this incident. On the evening of October 30, 1991, he and two friends were on the roofs of adjoining three-story apartment buildings located at 685 State Street ("685"), owned by Robert Piedilato, and 687 State Street ("687"), owned by Bruce and Wayne Puff, in Perth Amboy. It was "Mischief Night," and the boys were throwing tomatoes at cars on the street. The children entered 685 through an unlocked door. They walked to the third floor and went out on the roof through an access-way secured by only a plastic bag. Once on the roof of the building, they could move freely from the roof of 685 to the roof of 687. The owner of 685, Piedilato, was fully aware that it was common for children to enter his apartment building and access the roof.
Between the two buildings there is an irregularly shaped air shaft running the full height of the building. At its widest point, the air shaft measures fifteen feet. There is a short parapet on the 687 side of the air shaft but none on the other side. Samuel Vega had not been on the roof of the two apartment buildings prior to that night. It was dark when he went on the roof.
As the youths were throwing tomatoes from the roof of 687, a police car turned onto State Street. Fleeing from the police, the children ran toward the back of the building. As Samuel reached the area of the air shaft, he tripped and fell into it. He suffered devastating injuries and had to be air-lifted from the bottom of the air shaft by helicopter. He suffered paralysis and brain damage. He was unable to recount what happened that night. The Court has since been informed that Samuel passed away on May 18, 1997.
The trial court granted summary judgment in favor of defendants, ruling that "an air shaft between two buildings is a condition which is apparent even to children and the risk of falling in the shaft should be fully realized." The court characterized plaintiff's action as one of "recklessness and bravado [that] does not fall under the terms of [the infant-trespasser clause]."
The Appellate Division held that plaintiff had established that defendants knew or should have known children were trespassing on the roof but that plaintiff had failed to establish that the air shaft posed an unreasonable risk or that Samuel did not appreciate the full extent of the risk of the air shaft. In its reported opinion, the Appellate Division held that "a jury could not rationally conclude that Samuel did not fully `realize' the risks involved in running `within the area' of this patently obvious danger." Vega v. Piedilato, 294 N.J. Super. 486, 498 (1996).
Plaintiff contends that this Court's decision in Brett requires that we now modify the infant-trespasser rule. Plaintiff argues that under the negligence analysis of that rule the Court should consider the foreseeability of the danger to define the scope of the landowner's duty. The Court should consider the infant's perception of the danger only to the extent that it would reduce plaintiff's ultimate recovery. Plaintiff argues that the rule adopted by the Appellate Division uses the minor's perception of risk in defining the landlord's duty in a manner similar to the outmoded and discarded concept of contributory negligence.
Traditional concepts of landowners' tort liability impose on possessors of land "no duty of care other than to refrain from willful and wanton injury toward trespassers." Diglio v. Jersey Cent. Power & Light Co., 39 N.J. Super. 140, 144 (App. Div. 1956). Over time, "the protective fortifications of [these] early common-law principles" were weakened. Id. at 143. Judge Jayne described the change as a "battle" at the "heavy gates which for centuries have protected the traditional immunities of the possessors of land." Id. at 145.
At common law, courts define the extent of a landowner's tort liability toward a party injured due to a dangerous condition on the property by first determining the status of the injured party on the land:
Historically, the duty of the owner or occupier to such a person is gauged by the right of that person to be on the land. That status is determined by which of three classifications applies to the entrant, namely, that of a business invitee, licensee, or trespasser.
An owner or possessor of property owes a higher degree of care to the business invitee because that person has been invited on the premises for purposes of the owner that often are commercial or business related. A lesser degree of care is owed to a social guest or licensee, whose purposes for being on the land may be personal as well as for the owner's benefit. The owner owes a minimal degree of care to a trespasser, who has no privilege to be on the land.
[Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993) (citations omitted).]
Although the injured party's status as an invitee, licensee, or trespasser defines the extent of a landowner's tort liability, foreseeability is one constant that plays a significant role in fixing a landowner's duty:
As in other tort contexts, . . . the overriding principle governing the determination of a duty is the general tort obligation to avoid foreseeable harm to others. Thus, in a landowner-liability case decided nearly a half-century ago, we said that "[t]he basis of liability is the foreseeability of harm, and the measure of duty is care in proportion to the foreseeable risk." Just last term we noted the settled principle that "the common-law classifications of persons on land should be applied flexibly in assessing the landowner's general tort obligation to avoid foreseeable harm to others."
[Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 534 (1997) (quoting Brett, supra, 144 N.J. at 508) (Stein, J., Dissenting) (citations omitted).]
As our society developed, the court-created formulations that were so crucial to the analysis of landowners' tort liability became increasingly difficult to apply to new and complex relationships between landowners and those on their property. These new relationships required modification of the traditional categories. A generation ago, justice Stewart wrote, in Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630-31, 79 S. Ct. 406, 410, 3 L. Ed. 2d 550, 554-55 (1959), that
the distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism. In an effort to do Justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create subclassifications among traditional common-law categories, and to delineate fine gradations in the standards of care which the landowner owes to each. Yet even within a single jurisdiction, the classifications and subclassifications bred by the common law have produced confusion and conflict. As new distinctions have been spawned, older ones have become obscured. Through this semantic morass the common law has moved, unevenly and with hesitation, towards "imposing on owners and occupiers a single duty of reasonable care in all of the circumstances."
The glacial pace of the law has not yet traversed the "morass" of common-law classifications. But as our industrial society has developed, concerns about children and the great probability of harm to children from dangerous conditions of land led many courts and the Restatement to reject, in the case of children, the premise on which the occupier's special immunities rested, i.e., a judgment that full utilization of land required immunity even at the expense of the lives and limbs of people, and to substitute the more flexible test of negligence which would balance these competing interests on a case to case basis.
[Fleming James, Jr., Tort Liability of Occupiers of Land: Duties Owed to Trespassers, 63 Yale L. Rev. 144, 164 (1953) (footnotes omitted) (hereafter, James).]
In Strang v. South Jersey Broadcasting Co., 9 N.J. 38, 45 (1952), New Jersey joined the growing number of jurisdictions that accepted section 339 of the Restatement of Torts, which imposes liability on a possessor of land for bodily injury sustained by an infant trespasser.
The current formulation of the infant-trespasser doctrine appears in Restatement section 339:
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 children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
A claimant must establish each element of section 339 to support a prima-facie case. Blackburn v. Broad St. Baptist Church, 305 N.J. Super. 541, 547 (App. Div. 1997); Coughlin v. U.S. Tool Co., 52 N.J. Super. 341, 342 (App. Div. 1958), certif. denied, 28 N.J. 527 (1959). The application of section 339 is not mechanical. Courts must consider the unique factual setting of each case in deciding whether plaintiff has made a sufficient showing to raise a jury question for each of the five elements. Blackburn, supra, 305 N.J. Super. at 547.
In some jurisdictions the court alone determines, under subsection (c), whether the minor's appreciation of the risk eliminates any duty on the part of the landowner. 3 J.D. Lee & Barry A. Lindhal, Modern Tort Law § 30.06 (rev. ed. 1988). In New Jersey, however, the subsection (c) consideration is rarely a question of law:
Realization of the risk involved means something more than mere awareness that "you could get hurt." It connotes appreciation of the danger involved rather than mere knowledge of the existence of the condition itself. . . . [I]f it is fairly debatable whether the child, considering his age and degree of immaturity, really comprehended the extent of the danger to which he was exposing himself, a jury question as to realization is presented.
[Haase v. North Hudson Scrap Iron Corp., 62 N.J. 263, 266 (1973) (citing Prosser & Keeton on Torts § 59 (4th ed. 1971)).]
We have never adopted a per se rule that a child above a certain age should be deemed to be aware of the risk. Judge Conford explained the analysis:
[T]here is no place for the assumption in law that any particular child, in the absence of conclusive evidence thereof, has shed his immaturity at any particular age. In this domain the law may wisely find its guide in the general sense of mankind. Nor should there intrude the notion that at any given age the child "should know better." We are here necessarily dealing in pragmatics, not theories of improvement of child behavior. Close curtailment of liability by law will not dull the instinct of the child for carefree play. But the fair application of the rule of liability on a realistic basis will encourage the adoption of safety measures by industrial and other land occupiers and subserve the intent of the rule that the risk of foreseeable injuries to children be borne by those best able on the whole to prevent them.
[Hoff, supra, 38 N.J. Super. at 234.]
Accord McColley v. Edison Corp. Ctr., 303 N.J. Super. 420, 427-28 (App. Div. 1997) ("[T]here is no precise age at which [section] 339 liability no longer applies to a minor . . . [for] age is but one factor, along with the nature and obviousness of the risk and the likelihood that the risk would be appreciated by a fourteen-year-old under similar circumstances.")
In this case, because the minor child suffered so devastating and paralyzing an injury, it is impossible to assess whether he "really comprehended the extent of the danger to which he was exposing himself." Haase, supra, 62 N.J. at 266. The trial court was frank to acknowledge this: "Due to the inability to testify, we cannot objectively say that plaintiff appreciated the risk; however, we can say the roof did not present an ...