public duty to exercise great care and skill in the management of
such dangerous instrumentalities.
In the case of Piraccini, Adm'r v. Director General of
Railroads, 95 N.J.L. 114, 112 A. 311, 36 A.L.R. 294, the court
held that a railroad was responsible for the death of a child as
a result of a fire kindled by a railroad employe in a city near a
path long frequented by the public and by school children and
also near a playground. The purpose of the fire was to clear the
land of dry leaves. A child, five years old, was soon after
discovered on or near the property not far from the playground
all in flames. As a result of burns the child died. The court
held the defendant liable because of its responsibility for the
use of a dangerous agency.
To like effect are the cases of New Jersey Fidelity and Plate
Glass Insurance Co. v. Lehigh Valley R.R. Co., 92 N.J.L. 467,
105 A. 206, damage from explosives; Spenzierato v. Our Lady Monte
Virgine Soc. etc., 112 N.J.L. 93, 169 A. 831, damage from
fireworks; Anderson v. Jersey City Electric Light Co., 63 N.J.L. 387,
390, 43 A. 654; Heyer v. Jersey Central Power & Light Co.,
106 N.J.L. 211, 147 A. 452; Adams v. Atlantic City Electric Co.,
120 N.J.L. 357, 199 A. 27, 726, damage from electric power.
A late case of the Supreme Court of New Jersey decided March 3,
1952, Strang v. South Jersey Broadcasting Co., 9 N.J. 38,
86 A.2d 777, held a defendant liable under the following circumstances: A
janitor started a bonfire on the premises of the defendant and
left it unattended. The premises were within the confines of a
city and in an area known by the defendant to be used by children
as a playground. A child wandering over the premises was burned
as a result of the fire. The court held that the presence of the
child upon the land should have been anticipated and from that
derived the duty upon the defendant of care and protection
against a dangerous instrumentality. The court there affirmed a
finding in favor of the plaintiff citing the Piraccini case,
supra. Counsel in this case contends, however, that from the
general language of the opinion and the discussion by the court
of the duties of a landowner, the Strang case is authority for
the proposition that New Jersey has modified its previous rule
holding a landowner free from liability for maintaining an
"attractive nuisance". I do not agree. The decision of the court
was based upon the presence of a "dangerous instrumentality" on
the land and the negligence of the defendant in controling it.
The situation in this case shows no dangerous instrumentality.
I doubt that a more perfect specimen of an "attractive nuisance"
can be found than that exhibited by the facts of this case. Three
children of tender years, who had never before been in the
vicinity, discovered the tower. Although confronted with
barricades marking off a clearly dangerous part of the boardwalk
immediately in front of the entrance to the tower, they
disregarded both the barricades and the dangerous condition of
the boardwalk. Traversing the extremely dangerous area, as
indicated by the photographs introduced in this case, they
entered upon a solid, sound structure containing no defects and
no hidden danger. They played upon it. As a result of a misstep
by the minor plaintiff in attempting to place his foot upon the
auxiliary ladder or steps, he fell some distance to the ground
and sustained the serious injuries involved in this accident.
Warning signs or even a chain at the base of the tower would have
been as useless as were the barricades on the boardwalk. These
barricades ordinarily should have kept both adults and children
from the tower. There has been no attempt to prove in this case
that the tower was a "dangerous instrumentality" in and of itself
and I find as a fact that it was not. There is no charge of
misfeasance. About the only basis of negligence alleged by the
plaintiffs is that the defendant is guilty of nonfeasance in
failing to make the tower "child-proof" in either removing a
series of steps or by dismantling the tower.
It appears to me that the law of New Jersey draws a clear
distinction between an "attractive nuisance" and the presence of
a "dangerous instrumentality" upon the
land. This case clearly falls within the definition of an
"attractive nuisance". The Strang decision is merely a
reiteration of the doctrine long followed by the courts of New
Jersey respecting dangerous instrumentalities and does not, in my
opinion, extend liability under the law of New Jersey to a
possessor of land for maintaining an "attractive nuisance".
I am, therefore, constrained to hold that under the law of New
Jersey, plaintiffs have failed to establish negligence or a cause
of action in this case.
Conclusions of Law.
1. This case is governed by the law of New Jersey.
2. The lookout tower was not an inherently dangerous
3. Defendant was not guilty of negligence.
4. Plaintiffs have established that the lookout tower
constituted an "attractive nuisance" for which there would be no
recovery under the laws of the State of New Jersey.
5. Judgment will be entered for the defendant.
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