The Appellate Division recently issued a ruling that renewed an action which sought to hold construction firms liable for an accident which led to the amputation of a minor’s leg. The plaintiff and his friend, also a minor, were trespassers onto a construction site which was in a shopping plaza. Upon entering the site, the two operated a piece of construction equipment. When the friend was operating the piece of equipment, a forklift, the plaintiff unsuccessfully attempted to disembark and was seriously injured. The plaintiff, through his parents, brought suit against the general contractor for the project as well as other contractors for their alleged negligence. The plaintiffs alleged that the contractors failed to provide the necessary safeguards that would prevent trespassing and other improper entry.

The Trial Court granted the contractors’ summary judgment motions holding that the plaintiffs failed to establish that the former knew or had “reason to know” that the minor plaintiff was likely to trespass onto the site. The “reason to know” standard was set forth in Section 339(a) of the Restatement (Second) of Torts (Restatement), which deals with “Artificial Conditions Highly Dangerous to Trespassing Children.”

The plaintiffs appealed the decision. The Appellate Division reversed the Trial Court’s decision and remanded it. The Appellate Division held that the lower court improperly applied the aforementioned standard set forth by the Restatement. Genuine issues still existed as to whether the contractors had “reason to know” that minors would trespass onto the construction site. The Appellate Division stated that a jury could determine that proper safeguards were not put into place and that the area, due to its commercial nature, was likely to invite trespassers.