Estate of Desir v. Vertus
| Citation | 69 A.3d 1247,214 N.J. 303 |
| Parties | ESTATE OF Naitil DESIR, by and through its lawfully appointed Administratrix Edmonde ESTIVERNE, and Edmonde Estiverne, individually and on behalf of the Heirs at Law and Dependents of Naitil Desir, Plaintiffs, and Estate of Cosme Novaly, by and through its lawfully appointed Administrator Wilner Novaly, and Wilner Novaly, individually and on behalf of the Heirs at Law and Dependents of Cosme Novaly, Plaintiffs–Respondents, v. Jean Robert VERTUS, Individually and on behalf of Vertus Financial Services and Vertus Financial Services, Defendants–Appellants, and Jean Robert Vertus, Defendant/Third–Party Plaintiff, v. Earl Easterling, Louis Boggs, and Letray Evans, Third–Party Defendants. |
| Decision Date | 20 May 2013 |
| Court | United States State Supreme Court (New Jersey) |
OPINION TEXT STARTS HERE
Michael Dolich, Marlton, argued the cause for appellants (Bennett Bricklin & Saltzburg and Ronca, Hanley, Nolan & Zaremba, attorneys; John J. Ronca, Jr., on the briefs).
Alexandra A. Conti, Union, argued the cause for respondent (Conti & Conti, attorneys).
In this appeal we consider whether the tragic shooting death of an individual by a criminal fleeing from a business gives rise to a cause of action sounding in tort on behalf of the decedent's estate against the owner of the business premises.
The representatives of the decedent's estate assert that it was the owner's acts of leaving the premises in response to his belief that “something” was wrong and of asking decedent for assistance that eventually led to the decedent's shooting death when he went to investigate. They contend that in these circumstances, the business owner owed their decedent a duty of care, the breach of which renders him liable for the death.
The business owner, on the other hand, argues that he merely asked the decedent to use a telephone, that he told the decedent all of the facts he knew and on which he based his request, and that he never suggested that decedent should leave his place of safety and rush down the street. He asserts that under the circumstances, he owed decedent no duty of care and he contends, arguing in the alternative, that to the extent that a duty was owed, his limited request and complete disclosure of the facts known to him satisfied that duty.
Faced with determining whether the premises owner in these circumstances owed the decedent a duty of care, the trial court concluded that he did not, granting summary judgment in favor of the owner of the business premises. The Appellate Division, in a published opinion, reached the opposite conclusion, reasoning that the decedent was owed a duty of care under the circumstances. Estate of Desir v. Vertus, 418 N.J.Super. 310, 313, 13 A.3d 428 (App.Div.2011). Relying on established concepts of premises liability, including those relating to duties owed for criminal acts and for injuries sustained off-site, and finding further support in the rescue doctrine, the appellate court disagreed with the trial court's analysis. It concluded instead 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.” Ibid.
We are now called upon to consider whether there is a duty of care owed under these circumstances. Our evaluation of this question requires us to address fundamental considerations that govern the imposition of a duty in any case, and to do so in light of existing concepts of tort law governing premises liability, duties owed for criminal acts of third parties, and the rescue doctrine.
Our evaluation of those concepts in the context of the facts contained in this record leads us to conclude that the Appellate Division erred in imposing a duty of care on a person who left his premises and requested that a neighbor use a telephone to call the premises, who told the neighbor what he had observed before he left the premises, but who then failed to prevent the neighbor from going to the scene where he encountered a fleeing robber who shot him. We therefore reverse.
There is no dispute about the relevant facts, the substance of which is derived largely from the deposition of defendant Jean Robert Vertus. At the time of the events in question, Vertus owned a three-story building in Irvington, which had a single apartment on each floor. Vertus lived in the second-floor apartment, and he also used that apartment for the purpose of operating his business, defendant Vertus Financial Services. He testified that the building was located in an area of “bad crime,” where “you have to be scared for your life[,]” and that shortly before the incident in question, someone had been killed one block away from his building. Vertus himself had been the victim of a robbery three years earlier when an intruder had entered his business and stabbed him. He explained that after that robbery, he had a family member install a security system that included cameras and a buzzer that controlled entry into the building and the second–floor apartment.
According to Vertus, on September 3, 2003, he and a client were seated at his dining room table, where they were conducting business. When they finished at approximately 5:00 p.m., both he and the client got up from the table. Vertus then turned toward the back of the apartment while the client headed toward the living room so that she could leave. As the client was about to enter the living room, Vertus saw her “step back” as if she “saw something” in the living room. Although neither that client nor any of the other people who were in the living room said anything and although there were no other sounds coming from the living room, Vertus believed that “something [was] wrong.” When questioned during his deposition about what he thought might have been wrong, Vertus surmised that it might have been a “robbery or something.”
Vertus did not call out or go to investigate what might have been happening in the living room. Instead, he left the apartment through a side door that led to steps by which he could go outside. On his way down the stairs, he stopped and knocked on the door of the first–floor tenant, hoping to find a telephone to call 911. When no one answered his knock, Vertus made his way through several hedges that he described as shrub fences separating the adjoining properties. He passed the first house because no one lived there and he passed the second house because its elderly residents did not have a telephone. He reached the third house, where plaintiffs' decedent Cosme Novaly and his roommate, referred to in the record only as Mr. St. Louis, lived in the basement. Vertus knew Novaly and St. Louis because they had used his business services in the past.
Vertus told Novaly and St. Louis that he had seen his client “move back” and that because of “the way she moved it seemed like something was going on in [his] business.” He asked them to use their telephone to call his business and to find out if anyone answered the phone. Novaly complied with this request, but got no answer because the line was busy. Vertus did not tell Novaly and St. Louis that he thought there might be a robbery in progress and did not ask them to call 911, because, as he later explained,
Vertus concedes that “[he] came to them to ask, you know, for help [,]” and that they did as he asked when they placed a call to his business. He also concedes that after making the telephone call and getting no answer, Novaly and St. Louis left the apartment while Vertus remained behind. Although he did not ask Novaly or St. Louis to investigate what was transpiring at his business, he also admits that he thought they were walking in that direction and were trying “to see what [was] going on[.]”
Shortly after Novaly and St. Louis left the basement apartment, Vertus heard the sound of a gunshot and he then used their telephone to call 911. Approximately three to five minutes later, when he heard the police arrive, Vertus went outside, where he saw Novaly lying on the sidewalk in front of his building with a gunshot wound. He applied pressure to the wound until the ambulance arrived to take Novaly to the hospital where he later died.
The police investigation revealed that three intruders had entered Vertus's business, demanded money, assaulted several clients and employees, and fatally shot Naitil Desir, one of the clients who was present. The investigation also determined that Novaly had been shot by one of the robbers on the sidewalk outside of the building as the group was fleeing the scene.
The complaint in this matter was filed on behalf of the Estate of Naitil Desir, the patron who was shot to death inside the business, and plaintiffs Estate of Cosme Novaly, the neighbor who was shot to death on the sidewalk outside, and its administrator. The complaint named Vertus individually and his business, Vertus Financial Services, as defendants. Both Estates alleged that their decedents were lawful business invitees on defendants' premises and that they were shot and killed due to defendants' negligence.
Both defendants moved for summary judgment in response to the claims made on behalf of the Novaly Estate and its administrator. The trial court granted those motions, concluding that under the circumstances, there could be no liability because Vertus owed no duty to Novaly. In explaining its reasoning, the trial court noted that the only request that Vertus made to Novaly was a limited one, observing that
the best one can say here is that Mr. Vertus requested the use of the phone. He didn't request Mr. Novaly to go over to his business. He didn't request him to stop the robbery. He didn't tell him to go over and ... intervene in some other way[.]
Moreover, the trial court found that Vertus told Novaly “all the information he...
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