Estate of Desir v. Vertus, 418 N.J. Super. 310 (App. Div. 2011). “[W]here an imperiled person draws in another to his predicament, it is foreseeable that the person drawn in will be injured unless the victim exercises reasonable care.” That was the holding of this opinion by Judge Grall.
The defendant, Vertus, who operated a business out of his Irvington apartment, sensed from the reaction of a client who was leaving the apartment that “[a] robbery or something was about to take place.” Vertus slipped out a side door and went to some neighbors who were “like family.” He sought their help, saying that “something” was happening in his apartment. But Vertus did not tell them that he thought that it was a robbery. The neighbors, one of whom was Cosme Novaly, went out to investigate and left Vertus in their apartment because he was “scared.”
Novaly was shot outside the building in which Vertus had his apartment. Novaly later died from his injuries. Three intruders had invaded Vertus’s business, demanded money, shot plaintiff Desir, a client of Vertus’s, and shot Novaly on the sidewalk outside.
Both Novaly’s estate and Desir’s estate sued Vertus. A jury considered and rejected the claims of Desir’s estate. But Vertus won summary judgment against Novaly’s estate, on the grounds that there was no duty owed to Novaly. Novaly was not a business invitee, and there was no claim that Vertus’s own negligence had been a cause of the robbery.
The Appellate Division reversed the ruling against Novaly’s estate, relying on (among other things) Arvanitis v. Hios, 307 N.J. Super. 577 (App. Div. 1998). There, a wife needed help to control the violent behavior of her husband who had stopped taking his medication. She called on a nephew to assist her, and the nephew was harmed when he tried to help her give the husband his medication. The wife was held to have a duty to the nephew.
The Appellate Division noted that in Arvanitis, the injury occurred on the premises of the defendant wife, whereas in Desir, Novaly was shot outside. Judge Grall found that distinction “immaterial.” Citing Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 404-05 (2006), Judge Grall stated that “when a condition posed by a condition on property poses a foreseeable risk to an identifiable person off the premises, a duty to that person arises.” Vertus’s failure to tell Novaly that he thought a robbery was in progress, as Vertus in fact believed, breached his duty of reasonable care. That breach exposed Novaly to foreseeable harm, which then came to pass. A reasonable person would have made full disclosure to Novaly, or called 911 instead of putting at Novaly at risk.