CALLAHAN v. DEARBORN DEVELOPMENTS INC

CONFORD, J.A.D., dissenting.

I am of the view that the issue of liability was properly committed to the jury in this case. Under the opinions of our courts cited in the majority opinion accepting and applying the Restatement of Torts rule (§ 339) in this area of tort liability, it appears to me that it was fairly within the appropriate domain of the fact-finder to find and conclude that the defendant should have foreseen that children of the age of the infant plaintiff and his companions were likely to come upon this unfinished dwelling, attempt to gain entry thereto, and succeed by the expedient of the handy ladder left outside the house by defendant and the unlocked windows; moreover, that once in the structure, one of them, not fully appreciative of the susceptibility of injury through inexpert handling of the electric power-saw, might play with it and sustain serious injury, just as actually happened; and, finally, that defendant was negligent in not taking one or more of several possible precautionary steps to avert this accident.

It should not be necessary for me to say that by this conclusion I am not necessarily expressing my own personal judgment as to defendant's negligence or concerning the existence of any of the prerequisites for liability set out in the now authoritative Restatement section cited above, but only my conviction that the factual circumstances shown by the record, affording plaintiffs all legitimate permissible inferences in their favor, as is required, were such that fairminded men might honestly and reasonably differ as to whether the conclusions undergirding liability should be drawn. Where this is so, the ultimate issues in any kind of negligence action are for the jury. Rapp v. Public Service Coordinated Transport, 9 N.J. 11, 17 (1952); Wytupeck v. Camden, 25 N.J. 450 , 464 (1957); Hoff v. Natural Refining Products Co., 38 N.J. Super. 222 , 237 ( App. Div. 1955). The tendency of some courts to be astute to find expedients whereby to exercise greater control over juries in this field of liability than they do in negligence cases generally has been deprecated. 2 Harper and James, Law of Torts, (1956), § 27.5, pp. 1456, 1457.

A closer look at the facts is in order. Not only was the structure here involved one of a row of houses in various stages of construction; it was only a block away from another housing development under construction which defendant's representative knew was being patrolled by local police to keep trespassing children away. Such was defendant's concern over the imminence of similar incursions by children on its own properties that it had requested the same surveillance by the police that was being afforded the other development. This was not forthcoming, and defendant had taken no other means of watching out for such trespassing children.

The specific house here of concern was one in which materials for other houses in the development were processed. In addition to the table power-saw on which the infant plaintiff injured himself, there were two gas-powered chain-saws and various other tools in the building. The electric power-saw was mounted on a table, and its blade could be recessed into the table. The front door was locked by a lock which could be opened from the inside. A side door was "locked with canvas."

Aside from the specific basis for foreseeability of trespass by children here manifested, it is common knowledge that children, especially boys of about the age of the instant plaintiff, are attracted to buildings in course of construction as places for play. See Woods v. City and County of San Francisco, 148 Cal. App.2 d 958, 307 P.2d 698 ( Ct. App. 1957); Chase v. Luce, 239 Minn. 364, 58 N.W.2d 565 ( Sup. Ct. 1953).

Once it is conceded that it was not unreasonable for defendant to be expected to foresee that children would be attracted to the obviously unfinished house (among other things, the foundation trenches had not yet been backfilled), it does not require a great stretch of the imagination further to foresee that such children, their access to the unexplored interior frustrated by a locked door, might take the convenient mode of entry afforded by the readily available ladder which defendant's agents had left leaning against the side of the house and lift one of the windows, which were not equipped with locks. There was some evidence that the windows were six feet above ground level. The common proclivity of children to climb onto things and into places where they do not belong is notorious. Wytupeck v. Camden, supra; Diglio v. Jersey Central Power Light Co., 39 N.J. Super. 140 ( App. Div. 1956); Hoff v. Natural Refining Products Co., supra. As observed in Bartleson v. Glen Alden Coal Co., 361 Pa. 519, 64 A.2d 846, 851 ( Sup. Ct. 1949), "That children will accept a situational invitation to climb is a matter of common knowledge."

Defendant emphasizes that it should not be expected to have foreseen the entry into a closed building, even by eleven-year-old children. This is an area of law in which recriminations over the moral and ethical aspects of the behavior of young children, as such, have no proper place. As we said in the Hoff case, supra (38 N.J. Super., at page 234): "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." The critical inquiry in this and cognate cases from the standpoint of appraisal of the defendant's duty is not whether the conduct of the children is offensive to adult concepts of good order in the community but whether, realistically, it is reasonably expectable behavior by children of the age, experience, background and discretion of those involved in the particular case, stimulated by the motivations generated by the surrounding circumstances, if the presence of children of that description was reasonably foreseeable by the defendant. The fact is that while the law of property says otherwise, young children commonly regard unoccupied structures, particularly where under construction, as fair territory for adventure. A property owner cannot realistically expect them to keep out because he has locked a door. If the rationale of the rule of law expressed in the Restatement of Torts section is to be implemented and young children protected even against their own immaturity, courts ought not predicate decisions of cases upon standards of child behavior different from those which in fact commonly exist and which are reasonably debatably foreseeable in reference to the specific case.

There is, moreover, another influential consideration in appraising both the nature of defendant's duty and its compliance with that duty in this case. This is that the degree of care required to be exercised by a landowner depends upon the nature and extent of the harm or hazard to which the endangered person will be exposed by lack of care in the particular case. As in negligence law generally, while the verbal formula for expression of the duty of care may be constant, circumstances of special or unusual hazard may increase the precautions required to be undertaken by the actor in discharge of that duty. See Ambrose v. Cyphers, 29 N.J. 138, 144 (1959). As stated in one of our leading recent cases in this field: "Here, the presence of the child upon the land should have been anticipated, and from this derives the duty of care and protection. The basis of liability is the foreseeability of harm, and the measure of duty is care in proportion to the foreseeable risk" (emphasis added). Strang v. South Jersey Broadcasting Co., 9 N.J. 38 , 45 (1952). Wytupeck v. Camden, supra (25 N.J., at page 462). In the instant case the conjunction of a plugged-in electric saw, powered to operate at the flick of a switch on the tool, and a group of eleven-year-old boys in an adventuresome mood, spelled obvious danger of serious harm to one of them. A jury could reasonably expect greater efforts on the part of the landowner to prevent the eventuation of that combination of circumstances than would be warranted if no tool of such dangerous propensities were on the premises. It might conclude that due care in such circumstances called for putting the ladder away if it was impracticable to lock the windows, or covering up the saw, or unplugging the power cord, or at least turning off the power source in the basement. It is no answer to speculate that the children might have overcome any or all of these obstacles and one of them still sustain injury. The jury had only to deal with the case before it and to assess the reasonableness vel non of the care exercised by the property owner under the particular circumstances presented. Another case will yield its own determinations.

The majority deem the owner exculpated by the infant plaintiff's admission that he knew the saw was "dangerous" in that he knew the saw "would cut your hand, too [just as a piece of wood] if it got in the way." If this represents a concept of contributory negligence as barring recovery as a matter of law, it is refuted by the testimony of the other boy, George Kelly, who had tried the saw first. That lad, more experienced with this type of tool, explained that the plaintiff, Eugene, was using the saw improperly: "Gene didn't know about the saw, and he had the wood on the wrong side." From this the jury was perfectly free to conclude that the plaintiff did not appreciate the full extent of the risk in using the saw and that his trying it, after seeing George easily cut a board with it, was not such conduct as necessarily bespoke contributory negligence, having regard to the expectable capacity, intelligence, discretion and judgment of a child of his age and background. See Dillman v. Mitchell, 13 N.J. 412 , 415 (1953).

Considering plaintiff's degree of knowledge of the danger attendant upon his venture with the saw not as a matter of contributory negligence, but in the light of the extent of defendant's duty, I think the same conclusion is indicated. In this regard a jury may have properly considered the effect of group psychology upon the behavior of an individual member of a group of boys, if it concluded that defendant could have foreseen that boys might get into the house as a group (indeed, more easily than an individual). The challenge of example among boys is well-known, particularly when dealing with the novel and the untried. It seems to me that the jury not unreasonably might have concluded that defendant should have foreseen that children old enough to get into the house with its ladder might yet not be old enough — they or one of them — to appreciate the full extent of the hazard involved in trying out the saw on a board. When George easily accomplished the cutting of a board with the saw, Eugene imitated him, obviously not cognizant of the fact that there was more skill and risk involved in the operation than tragic experience was imminently to bring home to him. Comment b. of Section 339 of the Restatement ( p. 922), dealing with the principle that the owner need not exercise care as to risks appreciable by child trespassers, says:

"The duty of the possessor, therefore, is only to keep so much of the land upon which he should recognize the likelihood of children trespassing, free from those conditions which, though observable by adults, are likely not to be observed by children or which contain risks the full extent of which an adult would realize but which are beyond the imperfect realization of children. It does not extend to those conditions the existence of which is obvious even to children and the risk of which is fully realized by them." (Emphasis added.)

See also Prosser, "Trespassing Children," 47 Calif. L. Rev. 427, 455, 461, 462 (1959). See Buckeye Irrig. Co. v. Askren, 45 Ariz. 566, 46 P.2d 1068 ( Sup. Ct. 1935) (a child igniting blasting powder on ground not realizing that the resulting flare would ignite powder in his pocket — recovery allowed).

The incidence of accidents of just such a type as this one with power-saws, involving even adults familiar with their use (amateur hobbyists, manual training teachers, carpenters, etc.), is so considerable as almost to be a matter of judicial notice. In my judgment there is hardly room for debate on the proposition that an eleven-year-old child, though knowing the obvious fact that the saw would injure him if his hand made contact with the whirring blade, would not upon his first experience with such an implement appreciate fully the hazard involved in its use.

Finally there is presented the condition of liability fixed in (d) of the rule — "the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein." This, of course, is also for the appraisal of the jury unless no reasonable difference of opinion with respect to the matter is tenable. I have indicated some of the specific steps the owner could have taken to minimize the possibility of such an accident as this. A jury could reasonably conclude that none of them, individually or collectively, would so hamper the prosecution of defendant's business as to outweigh in terms of social values the foreseeable serious hazard to the safety of young children in maintaining the condition as it existed.

"As said in Strang [ v. South Jersey Broadcasting Co., 9 N.J. 38 (1952)], the rule proceeds from humanitarian considerations and reasons of social policy. It represents a prudent and essential accommodation of the landowner's right to the use of his land and society's interest in the humane and the protection of the life and limb of its youth and the individual's interest in personal security. The correlative burden on the landowner, small indeed in comparison to the larger interests to be served, is a necessary concession to the common welfare. Human safety is of far greater concern than unrestricted freedom in the use of land." Wytupeck v. Camden, supra (25 N.J., at page 464).

Defendant places considerable reliance upon Coughlin v. U.S. Tool Co., Inc., 52 N.J. Super. 341 ( App. Div. 1958), certification denied 28 N.J. 527 (1959). I am fully in accord with that determination. But it does not militate against the result at the trial here. There is no fair comparison between the condition which the court there felt was not a reasonably foreseeable danger to children, under all the circumstances presented, and the very dangerous apparatus involved here, considered in the light of the potentiality of access thereto by young children.

I would affirm the judgment.