Businessman faces liability for neighbor’s death in robbery
The general rule that liability cannot arise from the criminal act of a third party took another hit this week.
A New Jersey businessman finds that he now has to answer for the wrongful death of a neighbor who was shot by a robber.
Jean Robert Vertus ran Vertus Financial Services, a check-cashing business, from his second-floor apartment in Irving, New Jersey.
Around 5:00 p.m. on Sept. 3, 2003, Vertus had just finished a transaction with a customer. Vertus saw the customer step back from the front door as she attempted to leave, apparently reacting to some threat on the stairway that he could not see.
The apartment is in a high-crime area, so Vertus knew “something was going on.” It turned out that his business was about to be robbed by three armed intruders. Vertus had been robbed and stabbed three years earlier, so he wasn’t about wait around and have his fears confirmed.
As the three intruders entered the apartment to rob his business and assault his customers, Vertus left the apartment through a side exit, looking for help.
Vertus found help three doors down the street at the home of his neighbor, Cosme Novaly. While Vertus stayed behind, Novaly and a friend went to investigate.
Unfortunately, Novaly crossed paths with the robbers on the sidewalk outside Vertus Financial Services and was shot. The robbers had also shot and killed a customer in the apartment. Novaly died 24 days later from his wound.
Novaly’s estate sued Vertus and Vertus Financial Services for negligence in state court.
This was a tricky proposition from the start because the estate did not claim that Vertus violated his duty as a businessman to secure the premises from criminal attacks. Nor did the estate argue that Vertus was negligent for inviting the robbery in some manner.
Instead, the estate contended that Vertus created an unreasonable risk of injury by bringing Novaly into the dangerous situation posed by the robbery at Vertus Financial Services.
Vertus convinced the trial court that he owed no duty of care under the circumstances and was granted a summary judgment.
But Monday, the New Jersey Appellate Division revived the lawsuit filed by Novaly’s estate, recognizing a new duty of care for business owners (and others seeking help from criminal attacks) to worry about.
The court said that the “factors most pertinent to duty — foreseeability of the harm, the relationship between the parties, and opportunity and ability to exercise care — warrant imposition of a duty here.”
It explained that “Vertus had a relationship with Novaly and [Novaly's friend] that led him to expect they would help him, and he knew that by responding as they did they were leaving the safety of their home to help him and exposing themselves to what he thought was a robbery.”
Accordingly, the court held 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.” (Estate of Desir v. Vertus)
- Pat Murphy
