30 N.J. 89, 152 A.2d 20 (N.J. 1959)
Berger v. Shapiro is a leading New Jersey decision on the scope of landowner liability for injuries to trespassing children under the attractive nuisance and trespassing-children doctrines.
Does a residential landowner owe a duty under the attractive nuisance/trespassing-children doctrine for injuries to a trespassing child caused by an ordinary artificial water hazard (such as an ornamental pond), absent a hidden danger or statutory violation?
Under New Jersey law, as informed by the Restatement (Second) of Torts § 339, a possessor of land may be liable for physical harm to trespassing children caused by an artificial condition if: (a) the possessor knows or has reason to know that children are likely to trespass; (b) the condition poses an unreasonable risk of death or serious harm; (c) the children, because of their youth, do not discover the condition or realize the risk; (d) the utility of maintaining the condition and the burden of eliminating the danger are slight compared to the risk; and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children. However, ordinary bodies of water—natural or artificial—are generally not deemed "unreasonable risks" within § 339 and do not constitute attractive nuisances absent unusual, concealed, or trap-like features, or a specific statutory duty (e.g., a pool-fencing statute) that, if violated, can supply negligence per se.
No. The court held that an ordinary artificial water feature on residential property does not, without more, constitute an attractive nuisance or an unreasonable risk under § 339, and the landowner owed no duty to the trespassing child beyond refraining from willful or wanton misconduct. The complaint failed to state a claim absent allegations of a hidden or trap-like hazard or a statutory violation.
Berger v. Shapiro is a touchstone for understanding the limits of the attractive nuisance/trespassing-children doctrine. It teaches that: (1) foreseeability of child trespass is not, standing alone, a basis for liability; (2) ordinary water hazards, even if artificial, are generally outside § 339; and (3) liability is more likely where a hidden, trap-like danger exists or where a statute imposes clear safety obligations. For students, Berger is valuable for duty analysis, for weighing risk-utility under § 339, and for spotting when statutory schemes (such as pool-fence requirements) change the outcome.