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Fulginiti v. Tocco

decided: May 8, 1972.


Adams, Gibbons and Hunter, Circuit Judges.

Author: Hunter


JAMES HUNTER, III, Circuit Judge.

In this diversity action the plaintiffs, a minor and his parents, seek damages resulting from injuries sustained by the minor plaintiff when he was struck in the eye by a piece of copper tubing wielded by a playmate. The District Court granted the defendants' motion for summary judgment, and the plaintiffs appeal from that order. We agree with the District Court that the pleadings, depositions, and answers to interrogatories "show that there is no genuine issue as to any material fact" and that under New Jersey law the defendants are "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).*fn1

The depositions reveal that in June, 1967, the defendants Peter and Margaret Tocco lived at 3925 Garden Avenue, Pennsauken, New Jersey, from which address Peter Tocco ran his business as a contractor. In the rear of the family dwelling Mr. Tocco stored cinder blocks and lumber. Various pipes and a broken comptometer or adding machine, along with a great deal of junk and other debris, also lay on the ground. The rear yard was unfenced and Tocco had from time to time observed children in the yard.

The Toccos' rear neighbors were the Dragani family. On Sunday, June 11, 1967, a family gathering was held at the Dragani home. Among the numerous family members present were two grand-nephews of the Draganis, nine-year-old John Cherry and the minor plaintiff Samuel Fulginiti, who was three years old.

During the late afternoon, while the two boys were playing in the Tocco yard, John Cherry picked up a piece of copper tubing and began to strike the broken adding machine. While John was striking the adding machine, the minor plaintiff came up behind him and was struck in the right eye by the tubing as John was bringing the tubing back over his shoulder to swing it. The injury eventually resulted in the loss of the eye.

There can be no doubt that New Jersey has adopted the infant-trespasser rule of Section 339 of the Second Restatement of Torts.*fn2 Turpan v. Merriman, 57 N.J.Super. 590, 594, 155 A.2d 266, 268 (App.Div.1959), certif. denied, 31 N.J. 549, 158 A.2d 450 (1960), and cases there cited; Callahan v. Dearborn Developments, Inc., 57 N.J.Super. 437, 154 A.2d 865 (App.Div.1959), aff'd per curiam, 32 N.J. 27, 158 A.2d 830 (1960); Scheffer v. Braverman, 89 N.J.Super. 452, 215 A.2d 378 (App.Div.1965); Ramundo v. Turi, 92 N.J.Super. 73, 222 A.2d 189 (App.Div.), certif. denied, 48 N.J. 141, 224 A.2d 325 (1966); Ostroski v. Mount Prospect Shop-Rite, Inc., 94 N.J.Super. 374, 228 A.2d 545 (App.Div.), certif. denied, 49 N.J. 369, 230 A.2d 400 (1967); Caliguire v. City of Union City, 104 N.J.Super. 210, 249 A.2d 603 (App.Div.1967), aff'd per curiam, 53 N.J. 182, 249 A.2d 577 (1969).

But New Jersey courts have never read Section 339 as making "the possessor of land an absolute insurer of the safety of trespassing children." Diglio v. Jersey Central Power & Light Co., 39 N.J.Super. 140, 143, 120 A.2d 650, 652 (App.Div.1956). Liability under Section 339 exists only when the injury to the trespassing child is "caused by a structure or other artificial condition" that the landowner should foresee would create an unreasonable risk of death or serious bodily harm to the child.

The appellants have argued very persuasively that the pile of lumber and cinder blocks and the other junk in the Tocco back yard, taken together, were a condition creating unreasonable risks to children who played there. But our initial inquiry is not whether a given condition is dangerous, but whether that condition is the "cause" of the particular injury within the meaning of Section 339.

We agree with Prosser that the meaning of the words "caused by" in Section 339 does not differ "in any significant way from the usual approach to 'proximate cause' found in the ordinary negligence case." Prosser, Trespassing Children, 47 Cal.L.Rev. 427, 445 (1959). The law is clear that before there can be proximate cause, or legal cause, there must be cause in fact, or "but for" cause. Kulas v. Public Service Elec. & Gas Co., 41 N.J. 311, 317, 196 A.2d 769, 772 (1964); see Restatement (Second) of Torts § 432 (1965); 2 Harper & James, The Law of Torts § 20.2, at 1110-11 (1956, Supp.1968). In the present case it is evident that Samuel Fulginiti was not injured by the various junk and debris in the back yard. The only items in the yard that entered into the events leading up to the injury were the broken adding machine and the piece of copper tubing.

We see no argument that the adding machine in any way served as a "cause" of the minor plaintiff's injury or that the abandoned adding machine resting on the ground was so dangerous as to create unreasonable risks of harm to children. We are left, then, with the copper tubing.

The depositions of several witnesses all agree that the copper tubing that John Cherry picked up to swing was about eighteen inches to two feet long, and of a diameter of three-eighths to three-quarters of an inch. It would be unreasonable to find, under the circumstances, that the Toccos realized or should have realized that this short length of copper tubing would "involve an unreasonable risk of death or serious bodily harm" to children.

We can conceive of no object or condition in existence that cannot under any circumstances be made dangerous to ...

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