Mancuso v. Klose

322 N.J. Super. 289, 730 A.2d 911 (App. Div. 1999)
  • Opinion Date: June 23, 1999

PREMISES LIABILITY—The Landowner’s Liability Act does not apply to clusters of housing within otherwise rural areas and running across a yard to get to an adjacent play area is not a “recreational activity.”

An 11 year old child living with parents in a rented house fell on glass while running over a downed portion of a fence to get to land owned by a next door neighbor. The fence separated the two properties and was in poor condition. The properties themselves, though located in a rural area with lots of woods and forestry, were within a cluster of housing surrounded by open tracts of land. The child was running because he received a phone call from a friend who lived on the opposite side of the neighbor’s property inviting him to come over “quick” because “a bunch of boys from fifth and sixth grade[s] were getting together to play a big game of tag,” and it was about to start. The neighbor claimed protection from liability under the Landowner’s Liability Act, asserting that the child’s running on its property to play “tag” brought the property within the protection of the Act. In addition, it claimed that the Act applied to its property as undeveloped, open and expansive rural or semi-rural property. The Act provides that no property owner owes a duty to keep its premises safe for entry or use by others for sport and recreational activities, but immunity under the Act does not extend to owners or occupants of land located “in residential and populated neighborhoods.” The property owner asserted that the act of running was a recreational activity within the Act. The Court disagreed, holding that the child was simply running through the yard to get to another property where he planned to play tag. “Any running that he may have done while traversing the [properties] was not part of the game he intended to play once he arrived at his friend’s house.” To the Court, the “recreational activity” was to occur on his friend’s property, not on the neighbor’s. In addition, although the lower court acknowledged that the overall area was rural, it found that there were residential neighbors within it. In the lower court judge’s words, “[t]his is absolutely a neighborhood area with houses in close proximity to the point where fences are put up to close off the houses, and the fence was down, the glass was there, and the plaintiff was traversing between houses to get to a third house, and this is where the incident occurred, I don’t think the Landowner’s Liability [Act] comes into play.” Having found that the Act did not apply, the Court analyzed whether the injured child fell under the “infant-trespasser” exception to the general rule that landowners owe “no duty of care other than to refrain from wilful and wanton injury toward trespassers.” In doing so, the Court did not accept the proposition that there was an assumption in law as to when any particular child has shed his immaturity. Consequently, it was left for the jury to determine whether the child appreciated the danger that confronted him in doing what he did and it refused to upset the jury’s verdict that the neighbor was liable for the child’s injury.