Estate of Naitil Desir v. Vertus

13 A.3d 428, 418 N.J. Super. 310
CourtNew Jersey Superior Court Appellate Division
DecidedMarch 7, 2011
StatusPublished
Cited by2 cases

This text of 13 A.3d 428 (Estate of Naitil Desir v. Vertus) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Naitil Desir v. Vertus, 13 A.3d 428, 418 N.J. Super. 310 (N.J. Ct. App. 2011).

Opinion

The opinion of the court was delivered by

GRALL, J.A.D.

Cosme Novaly, a friend and neighbor of defendant Jean Robert Vertus, was shot in front of Vertus Financial Services by a robber leaving the premises. Novaly was there because he was lending assistance to Vertus, who had come to Novaly and told him that he thought “something was going on” in the apartment that he used as his residence and place of business. Novaly died from the gunshot wound, and his estate filed a complaint charging Vertus and his business with negligence.

On defendants’ motion for summary judgment, the trial judge concluded that defendants owed no duty of care to Novaly and entered judgment in their favor. Novaly’s estate appeals. We hold 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.1 Accordingly, we reverse.

The factual statement that follows is drawn from Vertus’s deposition testimony. At the time of this incident, he operated a “financial services” business out of his second-floor apartment in a high-crime area of Irvington. In fact, Vertus had been robbed and stabbed while working there three years before the incident that led to Novaly’s death. In Vertus’s words, in Irvington “you have to be scared for your life.”

The events at issue here started at around 5:00 p.m. on a September evening. Vertus had just finished doing business with [314]*314a client at his dining room table. As the client walked toward the living room and the stairs to leave, Vertus saw her “step back.” Although he did not see or hear anything else, he “knew inside” that something was wrong because “if you have to open the door and ... you see something, you just ... step back.” He feared that “[a] robbery or something” was about to take place.

Vertus did not follow the client; he left by way of side stairs leading to the first-floor apartment to look for a telephone and call 911 because he thought “something happened.” Vertus knocked, but his downstairs neighbor did not respond. He then sought help from Novaly and his roommate Mr. St. Louis, who lived three houses away. Both had done business with him, and they were very close to him — in his words, “like family.” He did not stop at the first house because he knew those neighbors did not have a phone, and he did not stop at the second house because the residents were elderly.

When Vertus arrived, he told Novaly and St. Louis that “something” was going on in his apartment. He did not ask them to call 911 because he claimed to not know what was going on, but he did ask them to call his office to see if someone could pick up the phone. They complied, but the line was busy. Novaly and St. Louis left Vertus in their apartment because he was “scared,” and they went outside to see what was happening.

Vertus acknowledged that he had not told his neighbors what he thought was happening. He just told them he saw the client “move back” and that “the way she moved it seemed like something [was] going on in [his] business.”

When asked if he had requested help from Novaly and St. Louis, Vertus responded: “Well, they were helping me. I mean, I went downstairs, they g[a]ve me the telephone and they left.” He also said that he thought Novaly and St. Louis were going in “the direction of [his] business” when they left, because he had “c[o]me to them to ask, you know, for help.” There is no evidence that either Novaly or St. Louis had any law enforcement training or experience.

[315]*315Soon after his neighbors left him, Vertus heard a gunshot and dialed 911. He stayed in Novaly’s basement apartment until he heard sirens. When he went outside, he saw Novaly lying on his back on the ground suffering from a gunshot wound, and he applied pressure to the wound until an ambulance arrived. Novaly died from his injuries twenty-four days later. The parties agree that three intruders entered Vertus’s business, assaulted several clients, shot Desir, demanded money and that Novaly was shot outside on the sidewalk.

In reviewing a grant of summary judgment, this court uses the same standards as the trial court. Kramer v. Cibar-Geigy Corp., 371 N.J.Super. 580, 602, 854 A.2d 948 (App.Div.2004). The trial judge concluded that defendants were entitled to judgment as a matter of law because they had no duty to Novaly on these facts. That is a determination of law and we owe no deference to the trial judge’s conclusion. Frederick v. Smith, 416 N.J.Super. 594, 599 (App.Div.2010).

The estate does not contend that Vertus violated a duty as a business proprietor to secure the premises from criminal attacks. See generally Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 519, 694 A.2d 1017 (1997). Nor does the estate contend that Vertus’s negligence was partially responsible for causing the robbery, which would provide a basis for concluding that Vertus owed Novaly a duty under the rescue doctrine. Saltsman v. Corazo, 317 N.J.Super. 237, 248-49, 721 A.2d 1000 (App.Div.1998).

The estate instead argues that we should find a duty because Vertus, a business proprietor and resident of a premises that he thought was being robbed, asked Novaly to lend assistance under circumstances that Vertus knew or should have recognized exposed Novaly to the risk of injury at the hands of intruders. As we understand the claim, it is based on Vertus’s conduct that created an unreasonable risk of injury to Novaly by bringing him into the dangerous situation posed by the robbers at Vertus Financial Services.

[316]*316A general “ ‘purpose of the tort laws is to encourage reasonable conduct, and, conversely, to discourage conduct that creates an unreasonable risk of injury to others.’ ” Sciarrotta v. Global Spectrum, 194 N.J. 345, 357, 944 A.2d 630 (2008) (quoting Gantes v. Kason Carp., 145 N.J. 478, 489, 679 A.2d 106 (1996)). “That deterrent goal of the tort laws is effectuated through the recognition of a duty to exercise reasonable care and the imposition of liability for the breach of such a duty.” Gantes, supra, 145 N.J. at 489, 679 A.2d 106 (stating the principle in discussing choice of law in a products liability case); see Sciarrotta, supra, 194 N.J. at 357, 944 A.2d 630 (reiterating the principle in discussing the contours of the duty owed to spectators at a sporting event). This State’s law governing the duties of occupiers of land and the rescue doctrine has been developed to effectuate that fundamental purpose. Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 402, 895 A.2d 1143

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Related

Estate of Desir v. Vertus
69 A.3d 1247 (Supreme Court of New Jersey, 2013)

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Bluebook (online)
13 A.3d 428, 418 N.J. Super. 310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-naitil-desir-v-vertus-njsuperctappdiv-2011.