Estate of Desir v. Vertus Reversed: Defendant Owed No Duty of Care

Estate of Desir v. Vertus, 214 N.J. 303 (2013).  In this case, which involved the application of premises liability and the rescue doctrine to a tragic shooting death, the Appellate Division reversed the Law Division’s finding that defendant property owner owed no duty to the victim, who had responded to defendant’s request for assistance with “something going on” at his premises.  That “something” turned out to be armed robbery, and plaintiff’s decedent was shot and killed by one of the robbers.  The Appellate Division’s decision is discussed here.  The Supreme Court granted certification.  The Court unanimously reversed the Appellate Division and found for defendant. 

Justice Hoens wrote the majority opinion, which held, after a detailed discussion of the principles of premises liability and the rescue doctrine, that defendant owed no duty to plaintiff’s decedent.  In the majority’s view, the Appellate Division improperly “blend[ed] concepts of premises liability and the rescue doctrine” into a new rule that would have served “the interest of the particular plaintiffs” here, but was not sound law in the larger context of tort law. 

Justice Albin concurred in the result.  He agreed with the Appellate Division that defendant had a duty to plaintiff’s decedent, but he concluded that defendant satisfied that duty by telling plaintiff’s decedent what he saw that made him worry for his safety.

The majority stated that “the victim and his survivors are rightly deserving of our sympathy.  But the function of the law, and particularly the common law governing tort recoveries, cannot be driven by sympathy or overshadowed by the effects of tragedy.”  The Appellate Division’s ruling, which Justice Hoens found “either applies to every person who calls out for help under any circumstance or applies only to the particular and peculiar facts” of this case, would not “advance the public interest or lead to a rule that would sensibly, predictably, and fairly govern future conduct.”