The New Jersey Supreme Court has long held that the existence of a duty of care is a question of law, to be determined by the court based upon not merely foreseeability of injury but fairness. The object is to determine an intelligible general rule of conduct that will discourage the creation of unreasonable risks of harm in the future. In reiterating those general principles, the court recently added a note of caution in Desir v. Vertus. Writing for the majority, Justice Helen Hoens warned:

"This point bears repeating here because the function of the common law is not to achieve a result in a particular case, but to establish generally applicable rules to govern societal behaviors. Craft a rule that is inherently fact-specific and we risk creating an outcome that reaches only the particular circumstances and parties before the Court today; create a broadly worded duty and we run the risk of unintentionally imposing liability in situations beyond the parameters we now face."

Desir is one of those hard cases that sometimes make bad law. Defendant Jean Vertus operated a financial services business out of his apartment in a high-crime area of Irvington. He had been robbed before. Hearing a disturbance in a front room, he feared a robbery was in progress, slipped out a side door, and went to the house of a neighbor, Cosme Novaly, with a phone. He told Novaly what he had heard and asked him to call the business. The line was busy. Novaly, unasked, went out to investigate. After Vertus heard shots, he called 9-1-1 and found Novaly lying shot on the sidewalk. Novaly later died.

Reversing a trial court dismissal, the Appellate Division found that Vertus owed Novaly a duty of care, both as a business invitee and under the rescue doctrine. The Supreme Court in turn reversed, reinstating the dismissal. It held that a crime victim like Vertus, who had sought and received shelter from a stranger in a place of safety, owed no duty to dissuade the stranger from volunteering to investigate:

"We recognize, as did the appellate panel, that the facts before us are tragic and that the victim and his survivors are rightly deserving of our sympathy. But the function of the law, and particularly the common law governing tort recoveries, cannot be driven by sympathy or overshadowed by the effect of tragedy. Rather, the function of tort law is deterrence and compensation, and absent circumstances in which the definition of duty can be applied both generally and justly, this Court should stay its hand."

Justice Barry Albin concurred in the result, stating that Vertus had a duty to warn Novaly of the danger, but that he had satisfied that duty by telling his neighbor all that he knew himself and leaving Novaly to draw his own conclusions.

The majority’s tone is very different from what we have been accustomed to hearing from the New Jersey high court in this area of the law. While it is always questionable to read the judicial tea leaves, Desir portends a shift of emphasis. Its language will echo broadly as the lower courts grapple with the duty of care in novel circumstances.