Samolyk v. Berthe

• Decision Date: 02 June 2021
• Docket Number: DOCKET NO. A-3431-19
• Parties: ANN SAMOLYK and JOHN SAMOLYK, Plaintiffs-Appellants, v. DOROTHY BERTHE, III, Defendant, and ILONA DESTEFANIS and ROBERT DESTEFANIS, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

ANN SAMOLYK and JOHN SAMOLYK, Plaintiffs-Appellants, v. DOROTHY BERTHE, III, Defendant,andILONA DESTEFANIS and ROBERT DESTEFANIS, Defendants-Respondents.

DOCKET NO. A-3431-19

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted March 15, 2021

June 2, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Messano, Suter and Smith.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1723-19.

The Wright Law Firm, attorneys for appellants (William D. Wright, on the briefs).

Burke & Potenza, attorneys for respondents (John Burke, of counsel and on the brief).

PER CURIAM

Plaintiff Ann Samolyk almost drowned when she tried to rescue a dog owned by defendants Ilona and Robert Destefanis that wandered into a canal or "lagoon" that separated plaintiff's and defendants' homes in Forked River. Ann's husband John filed this complaint as her guardian ad litem (GAL) alleging defendants' negligence and asserting their liability under the "rescue doctrine."¹

After defendants filed their answer, the Law Division judge managing the case entered an order that required them to file a "dispositive motion" soon after paper discovery was completed and before any depositions or the service of any expert reports. Defendants filed their summary judgment motion, and plaintifffiled a cross-motion for partial summary judgment, seeking an order declaring "[t]he rescue doctrine applies to personal property, including pets." A second judge considered the parties' briefs and oral arguments and entered two orders: one denied plaintiff's motion and the second granted defendants' motion and dismissed the complaint. Plaintiff now appeals.

I.

We understand the first judge's well-intentioned case management order. The rescue doctrine, which application was critical to plaintiff's causes of action, has never been extended in New Jersey to the rescue of another's property, real or personal. Seeing this as a purely legal issue, the judge ordered defendants to file a dispositive motion after minimal discovery. Of course, the result was a significantly limited summary judgment motion record, which revealed the following.

Around 6:35 p.m. on July 13, 2017, Ann heard someone calling out that their dog was in the canal and needed help. She jumped in. Defendants were having dinner with their son and some friends when they realized their dog, Beau, a seventy-nine-pound boxer, was missing from their fenced-in yard. Defendants searched for Beau, learned he had fallen or jumped into the canal, walked into the backyard of a neighbor two doors away and were able to pullthe dog out of the water. Defendants denied ever requesting the assistance of Ann or anyone else.

Defendants called 911 when their son alerted them to the fact that "a woman" needed assistance. Reports in the record reveal that by the time police arrived, Ann was unconscious on a "floating dock," and the fire department was on scene performing CPR. Ann regained consciousness and was transported by ambulance to a nearby hospital. Although no medical records were before the motion judge and none are before us, it is alleged that Ann suffered "debilitating brain damage" necessitating the appointment of John as her GAL.

During oral argument on the motions, plaintiff's counsel argued defendants "negligently allowed their dog to be in peril," which "invited the risk of [Ann] jumping in to attempt to save it." However, he agreed with defense counsel that "[w]ithout the rescue doctrine, there's no causal connection between . . . the conduct on the defendants' part and the plaintiff's action in jumping into the lagoon."

The judge concluded "[t]he rescue doctrine clearly does not apply. . . . [The dog is] property rather than [a] person[]. . . . [I]t was a conscious determination of the [L]egislature to provide an umbrella of safety to those whorisk their own life to preserve another.² That's not what happened here." He granted defendants' motion "on the basis that the rescue doctrine does not apply."

II.

When reviewing the grant of summary judgment, we limit our review to the motion record before the Law Division judge. Ji v. Palmer, 333 N.J. Super. 451, 463-64 (App. Div. 2000) (citing Bilotti v. Accurate Forming Corp., 39 N.J. 184, 188 (1963)). We apply the "same standard as the motion judge." Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).

That standard mandates that summary judgment be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."

[Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)).]

Like "the trial court[, we] must 'consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). We owe no deference to the motion judge's legal analysis or interpretation of a statute. Palisades At Fort Lee Condo. Ass'n v. 100 Old Palisade, LLC, 230 N.J. 427, 442 (2017) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009)).

"The rescue doctrine has received general recognition in New Jersey and 'has long been a part of our State's social fabric.'" Saltsman v. Corazo, 317 N.J. Super. 237, 248 (App. Div. 1998) (quoting Burns v. Mkt. Transition Facility, 281 N.J. Super. 304, 310 (App. Div. 1995)). The doctrine "originated as a response to the argument that one who rushed into danger to rescue another and was injured in the effort was contributorily negligent for his own injuries and therefore was barred from recovering for those injuries in tort." Estate of Desir ex rel. Estiverne v. Vertus, 214 N.J. 303, 319 (2013) (citing Saltsman, 317 N.J. Super. at 247).

Most often, "[t]he doctrine permits the injured rescuer to maintain a cause of action against the one whose negligence placed the victim in imminent danger, because it is that negligence that has given rise to the intervention of the rescuer." Id. at 320 (citing Eyrich ex rel. Eyrich v. Dam, 193 N.J. Super. 244, 256 (App. Div. 1984)). If the doctrine does not apply, courts "must engage in the traditional, comprehensive analysis of whether a duty is owed" to the plaintiff-rescuer by the defendant. Id. at 322 (citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)).

Plaintiff conceded at oral argument before the Law Division judge that absent application of the rescue doctrine, there was no "causal connection" between defendants' actions and Ann's decision to enter the canal. Before us, plaintiff makes no argument that defendants owed a duty to Ann under the circumstances, and, considering the factors cited by the Court in Hopkins, we conclude that defendants owed no duty to Ann or others to restrain Beau from jumping into the canal. See Hopkins,132 N.J. at 439 (listing four factors to "identify[], weigh[], and balanc[e]" in determining whether a duty exists).

Our courts have applied the rescue doctrine in many cases where the plaintiff was injured in attempting to rescue another person. See, e.g., Saltsman, 317 N.J. Super. at 241, 247 (patron sued recreational complex's manager forinjuries that resulted while attempting to break up a brawl between manager and another patron); Blackburn v. Broad St. Baptist Church, 305 N.J. Super. 541, 544-46 (App. Div. 1997) (mother sued neighbor for injuries sustained in slip and fall while attempting to remove her three-year-old child from puddle on neighbor's property); Tornatore v. Selective Ins. Co. of Am., 302 N.J. Super. 244, 252 (App. Div. 1997) (injured motorist entitled to uninsured motorist benefits after trying to help passengers on a bus involved in an accident after a passenger yelled "fire"); Burns, 281 N.J. Super. at 310 (injured motorist entitled to PIP benefits after rendering aid to driver trapped in a car following collision); Eyrich, 193 N.J. Super. at 256 (plaintiff had a viable cause of action for emotional distress suffered in attempted rescue of neighbor's child from fatal attack by a leopard at the circus).

Plaintiff concedes that no reported case from any New Jersey court has applied the rescue doctrine to support a cause of action brought by the rescuer of real or personal property against a defendant who, through his negligence, placed the property in peril. Citing several cases from other jurisdictions and other authority, plaintiff urges us to extend the doctrine to the facts presented here and reverse the grant of summary judgment. Some of that authority is persuasive and raises a legitimate question why the rescue doctrine should belimited to the rescue of another human being, either the victim of another's negligence or, in very limited "particular circumstances," the one being rescued "who completely or partially created the peril that invited the rescue." Desir, 214 N.J. at 321.

For example, plaintiff cites that section of the Restatement (Second) of Torts, entitled "Danger Encountered in Effort to Save Person or Property," which states:

It is not contributory negligence for a plaintiff to expose himself to danger in an effort to save himself or a third person, or the land or chattels of the plaintiff or a third person, from harm, unless the effort itself is an unreasonable one, or the plaintiff acts unreasonably in the course of it.

[Restatement (Second

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