On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1065-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Chambers.
Plaintiff Ronnie Alnasr appeals from the dismissal of this personal injury action that he brought against defendants Robert Hatch and Virginia Hatch. We affirm.
At trial, plaintiff presented evidence that on Mischief Night, October 30, 2005, at about 8:30 or 8:45 p.m., he was seated on his front porch when he saw a group of four to six teenagers walking by with what appeared to be eggs in their hands. When he warned them to leave his house alone, the teenagers threw the objects at his house. Plaintiff and his brother started walking toward the teenagers, and then gave chase when the teenagers began to run away. Plaintiff chased the teenagers "almost at full speed" onto defendants' front yard and into the side yard, when "the ground just completely disappeared under me." Plaintiff had fallen over a four foot retaining wall that separated defendants' side yard from the rear yard. A stairway allowed passage from the side yard to the rear yard, but apparently plaintiff did not see it because defendants' property was unlit. Plaintiff fractured his ankle in the fall, requiring surgery.
Plaintiff sued defendants under theories of premises liability and nuisance. The case went to trial, and after plaintiff presented all of his evidence with the exception of his medical expert, the trial court dismissed the complaint in accordance with Rule 4:37-2(b). That Rule permits the dismissal of a claim where "plaintiff has shown no right to relief" based upon the law and facts presented. Ibid. The motion may be granted "if the evidence, together with the legitimate inferences therefrom" could not sustain a judgment in plaintiff's favor. Ibid.
Plaintiff appeals. He concedes that he was a trespasser on defendants' property. He contends, however, that defendants owed him a duty to warn of any artificial condition on the property that presented a risk of death or serious injury and that defendants breached that duty. Plaintiff also contends that defendants breached their duty under a municipal ordinance to maintain the premises free of nuisances and "ground surface hazards." We affirm for substantially the reasons set forth by the trial judge and add only the following comments.
Traditionally, the duty a landowner owed to a trespasser was to abstain "from willful or wanton injury." Lordi v. Spiotta, 133 N.J.L. 581, 584 (Sup. Ct. 1946). Indeed, the general rule under the Restatement provides that "a possessor of land is not liable to trespassers for physical harm caused by his failure to exercise reasonable care (a) to put the land in a condition reasonably safe for their reception, or (b) to carry on his activities so as not to endanger them." Restatement (Second) of Torts § 333 (1965).
In Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993), the Court recognized that a landowner's duty to a trespasser "is relatively slight." It stated that "[a] landowner, under most circumstances, has a duty to warn trespassers only of artificial conditions on the property that pose a risk of death or serious bodily harm to a trespasser." Ibid. Plaintiff relies on this language to assert that defendants had a duty to warn of the retaining wall.
However, the duty set forth in Hopkins is subject to the test of foreseeability. Hopkins relied in part on Section 337 of the Restatement, supra. Hopkins, supra, 132 N.J. at 434. That provision in the Restatement provides that if the property contains "an artificial condition which involves a risk of death or serious bodily harm," the possessor of land must "exercise reasonable care to warn [the trespasser] of the condition if (a) the possessor knows or has reason to know of their presence in dangerous proximity to the condition, and (b) the condition is of such a nature that he has reason to believe that the trespasser will not discover it or realize the risk involved." Restatement, supra, § 337.
When "assessing the landowner's general tort obligation to avoid foreseeable harm to others," New Jersey law recognizes that a landowner may owe a higher duty of care to trespassers "when their presence is foreseeable." Brett v. Great Am. Rec., Inc., 144 N.J. 479, 508-09 (1996). "[F]oreseeability of harm" is "a crucial element in determining whether imposition of a duty on an alleged tortfeasor is appropriate." Olivio v. Owens-Illinois, Inc., 186 N.J. 394, 402 (2006) (quoting Carvalho v. Toll Bros. & Developers, supra, 143 N.J. 565, 572 (1996)). Further, even if "the ability to foresee harm to a particular individual has been established,... considerations of fairness and policy govern whether the imposition of a duty is warranted." Id. at 403.
Here, plaintiff cannot establish that it was reasonably foreseeable to defendants that a neighbor would run at a fast speed through their unlit yard at night chasing teenagers. As the trial judge stated, the retaining wall on defendants' property "in and of itself, posed no risk to anyone who would be normally or reasonably using the premises as it should be used." Yards around residential properties typically contain many objects, such as swing sets, sand boxes, birdbaths, tables, toys, yard equipment, and landscaping terraces that would present a hazard to an individual running through the yard in the dark. To impose liability here would be unfair and ...