NJ Business Owner Can’t Be Held Liable After Asking for Help

A New Jersey business owner who asked for help after suspecting something was wrong at his Irvington company cannot be held liable for the deaths of those who volunteered to help him, according to the Supreme Court of New Jersey.  The decision in Desir v. Vertus examined the tort law governing premises liability, duties owed for criminal acts of third parties, and the rescue doctrine.

The Facts of the Case

Jean Robert Vertus lived and operated his business, Vertus Financial Services, in a high-crime area of Irvington, New Jersey. After finishing a client meeting, he became suspicious that “something was wrong” after his client stepped back as if she saw something while leaving. Vertus quickly left the building and attempted to find a telephone to call 911.

After finding several neighbors were not home, Vertus made his way to the home of his friend, Cosme Novaly. Vertus told Novaly and his roommate 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 see if anyone answered the phone.

After receiving a busy signal, Novaly and the roommate went to investigate while Vertus remained behind. Shortly after they left, Vertus heard a gunshot and called 911. A police investigation later revealed that three intruders had entered Vertus’s business, robbed and assaulted several clients and employees, and fatally shot Naitil Desir, one of Vertus’s clients. Novaly was shot as the intruders were fleeing the scene.

The Estate of Cosme Novaly filed suit, alleging that Vertus and his company were liable for Novaly’s death. The suit maintained that Vertus breached his duty of care by failing to prevent Novaly from encountering the dangerous situation at his business.

The Court’s Decision

The Supreme Court of New Jersey ruled that a business owner owed no duty of care to his neighbor under the specific facts of this case.  As stated in the Court’s opinion, “The traditional articulations of premises liability and the rescue doctrine do not provide an avenue for Novaly’s Estate or its administrator to proceed against Vertus.”

With regard to premises liability, the court noted that the injury occurred on a public sidewalk outside of Vertus’s business and was the result of a criminal act. “It has traditionally been held that individuals, including business owners, are not generally responsible for the criminal acts of others,” Justice Helen Hoens wrote.

As to the rescue doctrine, the court held that Vertus did not create the peril because he did not create the circumstance of the crime.  Moreover, Vertus had reached a place of safety when he arrived at Novalty’s apartment and Novaly did not act in a way that would rescue him. “In order to be consistent with well-settled concepts of duty and foreseeability, there will only be liability if the one being rescued is the one who completely or partially created the peril that invited the rescue,” Hoens said.

In this case, the court highlighted that Vertus gave Novaly all of the information he had and never requested that Novaly investigate the situation. As further explained by the panel, “Although creating a cause of action to suit these facts might serve the ends of these particular plaintiffs, we cannot say that it would advance the public interest or lead to a rule that would sensibly, predictably, and fairly govern future conduct.

If you have any questions about this case or would like to discuss the legal issues involved, please contact me, Robert Levy, or the Scarinci Hollenbeck attorney with whom you work.