Danger may invite rescue, but a person who asks another for help in a potentially violent situation may not necessarily be held liable for the helper’s injury or death, the state Supreme Court ruled on Monday.
A lot depends on how much the person in need of help describes the situation and asks for help and on whether the helper voluntarily puts himself or herself in danger.
The "function of the law, and in particular the common law governing tort recoveries, cannot be driven by sympathy or overshadowed by the effects of tragedy," the court said.
The 4-0-1 ruling, in Desir v. Vertus, A-3-11, dismisses a suit against the owner of a business where the helper was fatally shot while investigating what turned out to be a robbery in progress.
On Sept. 3, 2003, Jean Robert Vertus, owner of a financial-services company in a high-crime area of Irvington, was finishing with a client when they heard something in the building.
The client opened the door but stepped back, according to Vertus, who then left the building through a side entrance. Vertus went to the home of a friend, Cosme Novaly, who lived nearby and told him there was "something going on" in the building.
Instead of calling 9-1-1, Novaly and another man went to Vertus’ building, leaving behind a frightened Vertus. Moments later, Vertus heard a gunshot and ran to the building, where he found Novaly on the sidewalk bleeding to death. Another client who had been in Vertus’ building, Naitil Desir, also had been shot and killed.
The police said three intruders had entered Vertus’ business, demanded money, assaulted several clients and employees, and fatally shot Desir.
The estates of Desir and Novaly sued Vertus and his business, Vertus Financial Services, alleging he had a reasonable duty of care because he asked Novaly for help in circumstances he knew or should have known would expose Novaly to risk of injury.
Essex County Superior Court Judge Michael Casale dismissed the suits on summary judgment, and both estates appealed.
The Appellate Division reversed and reinstated the Novaly estate’s suit.
Appellate Division Judge Jane Grall, citing the Restatement (Second) of Torts § 303 (1965), recognized that a person can be held negligent when his conduct leads another person to act in a way that results in injury.
Novaly and the other man were not trained in how to deal with a possible intruder, and Vertus should have called 9-1-1, she said.
"Because of Vertus’ affirmative conduct, there is nothing unfair about imposing a duty of reasonable care toward an untrained and unsuspecting neighbor nor is it contrary to the purpose of deterring conduct that exposes others to an unreasonable risk of bodily injury," Grall said.
The court agreed to hear Vertus’ appeal of the ruling involving the Novaly estate.
Justice Helen Hoens, joined by Chief Justice Stuart Rabner and Justices Jaynee LaVecchia and Anne Patterson, said that in this case there had to be an analysis of both the traditional doctrines of premises liability and the relatively new rescue doctrine.
"It has traditionally been held that individuals, including business owners, are not generally responsible for the criminal acts of others," Hoens said.
But while both doctrines could lead to a situation in which a person in Vertus’ position could be held liable, decisions will have to be made based on the particular facts of a case, she said.
"In order to be consistent with well-settled concepts of duty and foreseeability, there will only be liability if the one being rescued is the one who completely or partially created the peril that invited the rescue," Hoens said.
In this case, Vertus went to Novaly’s home and only told him he believed something was wrong. It was Novaly’s decision, she said, to investigate and he did not do so at Vertus’ request. She added that Vertus told Novaly as much as he could about the situation.
"The traditional articulations of premises liability and the rescue doctrine do not provide an avenue for Novaly’s Estate or its administrator to proceed against Vertus," Hoens said.
"[T]he function of tort law is deterrence and compensation, and absent circumstances in which the definition of the duty can be applied both generally and justly, this Court should stay its hand," she added.
Permitting a cause of action to suit the facts of the case would not necessarily advance the public interest or help govern future conduct, she concluded.
Justice Barry Albin wrote a concurring opinion in which he agreed with the Appellate Division’s ruling that Vertus owed Novaly a duty of care, but satisfied that duty when he gave him all the information he had.
Vertus’ attorney, Michael Dolich of Bennett, Bricklin & Saltzburg in Marlton, says of the ruling, “It tells property owners that if they did not create the dangerous situation, they should not be held responsible. Even though there are tragic circumstances, you can’t create a duty of care based on that.”
The attorney for the Novaly estate, Alexandra Conti of Union’s Conti & Conti, did not return a call.