Estate of Desir v. Vertus

69 A.3d 1247, 214 N.J. 303, 2013 WL 3242430, 2013 N.J. LEXIS 432
CourtSupreme Court of New Jersey
DecidedMay 20, 2013
StatusPublished
Cited by44 cases

This text of 69 A.3d 1247 (Estate of Desir v. Vertus) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Desir v. Vertus, 69 A.3d 1247, 214 N.J. 303, 2013 WL 3242430, 2013 N.J. LEXIS 432 (N.J. 2013).

Opinions

Justice HOENS

delivered the opinion of the Court.

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 [309]*309duty 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.

I.

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.

[310]*310According 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 firs1>-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 [311]*311progress and did not ask them to call 911, because, as he later explained, “I didn’t know what [was] going on. I didn’t know what happened----I didn’t see anything.”

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.

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Cite This Page — Counsel Stack

Bluebook (online)
69 A.3d 1247, 214 N.J. 303, 2013 WL 3242430, 2013 N.J. LEXIS 432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-desir-v-vertus-nj-2013.