Argued November 18, 1997
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, 1 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."
1. References to "plaintiff" encompass actions filed on behalf of the minor child, Samuel Vega, and by Migdalia Muniz, individually and as Guardian ad Litem.
2. Undoubtedly, some of the confusion has stemmed from the need to distinguish between the age, at common law, when children are rebuttably presumed to be incapable of contributory negligence, Busch v. New Jersey & New York Transit Co., 30 N.J. 345, 358 (1959), and the age when a trespassing child might no longer be considered of "tender years" for purposes of the "special rule" of Restatement section 339. Prosser & Keeton on Torts § 59 (5th ed. 1984).
3. At their depositions, one of the two youths on the roof said that he did not see Samuel fall. The other testified as follows: Q After you shouted to the others that the police were coming you said you started to run, is that right? A Yeah. Q Where did you run? 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? A Yeah. 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 Now, did you see Sammy fall? A Yeah. Q Where were you standing? A I was in the back, we was running. Sammy was first, I was second. . . . . Q . . . Which way did he start running after you told him the cops were coming? A To the big hole. Q He started running toward the big hole? A Yeah. Q So both of you were running toward the big hole. . . . . . . . Q So as you were running now toward the big hole Sam Vega was in front of you, is that right? A Yes. Q Could you see Sam? A Yeah. Q How far away from you was he? A He was here, I was right here in the back. (Indicating.) Q Close enough to touch him? A Yeah. Q So you were right behind him. When he got to the big hole what did he do? A He hit a bump, I don't know, a little bump, and he just fell down. Q Well, I thought you said he was going to try and jump over the big hole. A He was going to try, but he felt like a bump, so he fell.
4. Because I believe that the flaws of the classification system extend beyond the invitee-licensee distinction, I would abolish it in its entirety. This case, in which Vega is described as a "trespasser," underscores the inherent difficulty in maintaining even the classification based on permission.