A recent case, Estate of Desir v. Vertus, decided on May 20, 2013, addressed whether the shooting death of an individual by a criminal fleeing the scene gives rise to a cause of action on behalf of the decedent’s estate against the owner of the business premises. The New Jersey Supreme Court, in limiting its decision to the facts as presented, ruled that no such duty existed.
The facts were undisputed. At the time of the incident, Defendant Jean Vertus owned a three story building, of which each floor had one apartment. Mr. Vertus lived in the second-floor apartment and also used it for operating his financial services business. Mr. Vertus testified that it was located in a high crime area. Shortly before the incident, someone was killed one block from the building. In addition, Mr. Vertus was the victim of a robbery three years prior when an intruder entered his business and stabbed him. After the robbery, he installed a security system that included cameras and required visitors to be buzzed into the building.
On September 3, 2003, Mr. Vertus and a client were conducting business in the apartment. When the client left and went towards the living room, Mr. Vertus saw her “step back” as if she “saw something”. Mr. Vertus believed something was wrong, stating later that he believed it may have been a robbery, but he was not sure. Mr. Vertus did not investigate the situation, but instead left the apartment through a side door to steps leading outside.
On his way down the steps, Mr. Vertus stopped and knocked on the door of the first-floor tenant hoping to call 911, but no one answered. Mr. Vertus then knocked on his neighbors’ doors. At the third house, Cosme Novaly answered the door. Mr. Novaly knew Mr. Vertus. Mr. Vertus recounted the story but did not say that he believed a robbery was in progress and did not ask to call 911. Instead, Mr. Vertus asked to borrow the phone so he could call his apartment to see if anyone answered. Mr. Novaly complied. Although Mr. Vertus did not ask Mr. Novaly to investigate, Mr. Novaly left the premises to walk in the direction of Mr. Vertus’ building. Mr. Vertus remained behind. Shortly thereafter, Mr. Vertus heard gunshots and called 911 using Mr. Novaly’s phone. When he heard police had arrived, Mr. Vertus left the apartment and saw Mr. Novaly lying on the sidewalk with a gunshot wound. Mr. Novaly later died.
The Police investigation revealed that three intruders had entered Mr. Vertus’ business, demanded money, assaulted clients and employees, and fatally shot one client. Mr. Novaly was shot by one of the robbers as the group fled the scene.
Plaintiffs named both Mr. Vertus and his business as Defendants. The Defendants moved for summary judgment against Mr. Novaly’s estate. The trial Court granted the motions concluding that Mr. Vertus owed no duty to Mr. Novaly. Further, Mr. Vertus did not request Mr. Novaly go to his business, try to stop the robbery, or intervene in any way. Further, Mr. Vertus gave Mr. Novaly all the information he had.
The Appellate Division reversed and concluded that Mr. Vertus did have a duty. It held that “one who has reason to believe that an intruder on his premises poses a danger to others owes a duty of reasonable care to a friend whom he brings to the danger by a request for assistance.” Estate of Desir v. Vertus, 418 N.J. Super. 310, 313 (App. Div. 2011). In reaching this conclusion, the Appellate Division applied general tort law concepts and principles governing foreseeability of harm. Id. at 316-22.
The Supreme Court reversed the Appellate Division. The Supreme Court recognized that although finding a duty would serve Plaintiff’s interests, the Court’s task in creating a new duty was “to establish generally applicable rules to govern societal behavior.” Slip Op. at 22. The Court noted that there is a strong interest in not imposing liability on someone who is in danger not of his own making and who simply calls for help. Slip Op. at 24. And although foreseeability of injury is important, it is not dispositive. Slip Op. at 24.
In the context of this matter, the Court noted that Mr. Vertus disclosed all the available information to Mr. Novaly. He knew no more about the general neighborhood dangers than anyone else living there. Mr. Vertus’ request to use Mr. Novaly’s phone was limited. He did not ask Mr. Novaly to investigate. Further, both Mr. Vertus and Mr. Novaly were in a safe place. The record was not clear whether Mr. Vertus even knew that Mr. Novaly was going to investigate. The Court noted that the function of tort law is deterrence and compensation. Slip Op. at 28. Therefore, absent such circumstances where a new duty can be broadly applied in a just fashion, the Court was unwilling to impose such a duty.
This case does have some applicability for Insureds who flee their premises and request assistance from a relatively safe place. So long as the Insureds divulge all available information and make limited requests for assistance, such as asking to use the phone, a Court might not hold the Insureds liable for any injuries that occur to an overzealous Samaritan. However, under a different set of facts, liability may attach. Therefore, a fact-sensitive inquiry must be developed.