Before BIGGS, Chief Judge, and GOODRICH and STALEY, Circuit Judges.
This case involves the liability of the United States under the Tort Claims Act*fn1 for an injury to a child trespasser. The accident occurred in New Jersey and that state's law controls. The trial court concluded that under the New Jersey rule the plaintiff could not recover and therefore awarded judgment for the defendant, although he assessed the damages.
The facts are undisputed. There is no complaint about the amount of damage the trial court found if anything is to be recovered at all. The injured plaintiff fell from a tower on land owned by the borough of Avalon, New Jersey. The borough had granted permission to the United States Coast Guard to build a tower. The tower was erected on the beach immediately adjacent to the boardwalk and was easily accessible from it. In June of 1946 the Coast Guard ceased to use the tower. A chain was put around it and a "no trespassing" sign put up. But both chain and sign disappeared within a short time. Children played about the tower. The court found that "the evidence disclosed that this was an open and notorious use by children, particularly in the summer months." He did not find that actual notice was given to the Coast Guard that children played in the tower but concluded that "The use of the tower as a playground was so open and notorious that the United States Government should have had notice of the fact of its use in that respect."*fn2
The plaintiff in this case was, at the time of the accident, seven years old. With other children he climbed the tower on an August day. Plaintiff fell as he attempted to get through a manhole to some auxiliary steps on the tower. It is for the injuries sustained in this fall that the action is brought.
The plaintiff's counsel conceded at the oral argument of this case that under the New Jersey decisions prior to the Strang case, which will be discussed presently, there would be no chance for the plaintiff to recover. This concession was correct.*fn3
We turn, then, to Strang v. South Jersey Broadcasting Co., 10 N.J.Super. 486, 77 A.2d 502, decided by the Superior Court of New Jersey, Appellate Division, December, 1950. This case involved the liability of a landowner for injury to a neighborhood boy who had come on his premises and was injured by falling into a fire which the company's janitor had built on the land near the broadcasting station. The court held that the question of the defendant's negligence was properly submitted to a jury and upheld a judgment for the plaintiff. The case was taken to the Supreme Court of New Jersey and on March 3, 1952, was affirmed by that court, 9 N.J. 38, 86 A.2d 777. We may admit that the facts in the New Jersey case are distinguishable from those presented here. The thing that hurt Edward Strang was not the neglect to keep premises in repair but the creation of an active and dangerous force, at least dangerous to a small boy, in this unguarded fire. And if one were inclined to whittle down the effect of a decision this one might be pigeonholed on that basis.
But the New Jersey court did not put the plaintiff's recovery on any narrow ground. In the appellate division the opinion-writing judge, in talking about children who come on to the land of another without being asked there by the owner, said: "But if habitually they do come to play upon his land and the landowner has notice of the fact, then he owes to them a duty which, perhaps, may be regarded as an extension of the old obligation to refrain from intentional injury."*fn4 It is to be noted that the opinion writer is conscious of the fact that the old obligation is being extended.
More important, the court went on to say: "The New Jersey rule seems to be in substantial accord with the Restatement, Torts, § 339." Then the court quoted the blackletter statement of § 339 in its entirety. We do the same. The statement is:
"A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if
"(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and
"(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving 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 in it or in coming within the area made dangerous by it, and
"(d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young ...