On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Approved for Publication April 4, 1997.
Before Judges Dreier, D'Annunzio and Newman. The opinion of the court was delivered by Dreier, P.j.a.d.
The opinion of the court was delivered by: Dreier
The opinion of the court was delivered by
Plaintiffs, Colleen Theobald as Administrator Ad Prosequendum for the heirs of Sean Theobald and as administrator of his estate, and Colleen Theobald and Harold Theobald (the parents of the late Sean Theobald), individually, appeal from summary judgments dismissing their complaint against the three remaining defendants, Michael Dolcimascola, Robert Bruck, and Amy Flanagan. Settlements or unappealed summary judgments have removed the remaining defendants from this case.
On January 20, 1991, plaintiffs' decedent, Sean Theobald, was in the second floor bedroom of his house with five of his friends. His father was downstairs watching television. The friends had gathered at 6:00 p.m. for a birthday party for one of the friends, Robert Bruck. The other teenagers present were Charles Henn, Michael Dolcimascola, Amy Flanagan and Katherine Gresser. At some time during the evening, the decedent produced an unloaded revolver and ammunition, both of which were examined by all of the teenagers. The Discussion turned toward another friend of theirs who had died playing Russian Roulette, and the decedent indicated that he also would try the "game." According to the predominant version of the varying testimony, Sean put a bullet into the gun, pointed it at his head and pulled the trigger several times. He then put the gun down, checked the cylinder, and tried again three or four more times. The gun then went off, killing him. Other versions had the gun going off on the first occasion he tried, or the gun firing by accident without his putting the barrel to his head. *fn1 There was, however, ample testimony that there were several attempts made while the five other teenagers merely sat around and watched. The trial Judge determined that if none of the teenagers actively participated, they had no duty to stop the decedent, and therefore summary judgment was entered.
The first question before us is whether any of the defendants, if they were mere observers to this tragic event, can be held civilly liable to plaintiffs. We are at a loss for a viable theory. Had this been a joint endeavor in which all were participating in the "game" of Russian Roulette, there is some authority that each of the participants in the enterprise might be held responsible, although the only cases we have been able to retrieve involve the criminal responsibility of participants. See e.g., Commonwealth v. Atencio, 345 Mass. 627, 189 N.E.2d 223, 224-26 (Mass. 1963) (where the participants were found guilty of manslaughter). There is no reason to suppose that if the participants could be found criminally responsible, they could not also be held civilly liable. A line, however, has been drawn by the courts between being an active participant and merely being one who had instructed a decedent how to "play" Russian Roulette. In the latter case, a defendant was determined to be free of any potential criminal liability. Lewis v. State, 474 So. 2d 766, 771 (Ala. Crim. App. 1985). Another court, in dictum, stated that inducing an individual to engage in Russian Roulette creates a sufficiently foreseeable harm to engender potential civil liability. Great Central Ins. Co. v. Tobias, 1987 Ohio App. LEXIS 6421, No. 86 AP-820, 1987 WL 9624, at *5 (Ohio Ct. App. 1987).
The most comprehensive New Jersey statement of the existence of a duty to another was expressed in Wytupeck v. City of Camden, 25 N.J. 450, 136 A.2d 887 (1957). Although the case involved the question of liability for the use of a dangerous instrumentality on defendant's land, the case explored when a duty to act arises in inter-personal relationships:
"Duty" is not an abstract conception; and the standard of conduct is not an absolute. Duty arises out of a relation between the particular parties that in right[,] reason and essential Justice enjoins the protection of the one by the other against what the law by common consent deems an unreasonable risk of harm, such as is reasonably foreseeable. In the field of negligence, duty signifies conformance "to the legal standard of reasonable conduct in the light of the apparent risk;" the essential question is whether "the plaintiff's interests are entitled to legal protection against the defendant's conduct." Prosser on Torts, (2d ed., section 36). Duty is largely grounded in the natural responsibilities of social living and human relations, such as have the recognition of reasonable men; and fulfillment is had by a correlative standard of conduct.
[ 25 N.J. at 461-62 (some citations omitted).]
If defendants had either been participants or had induced decedent to play Russian Roulette, or even if there had been some other factor by which we could find a common enterprise, then defendants may have had a duty to act to protect Sean from the consequences of his foolhardy actions. Such a duty would nevertheless invoke the usual principles of comparative negligence. Cf. Yount v. Johnson, 121 N.M. 585, 915 P.2d 341, 342-43 (N.M. Ct. App. 1996) (addressing the term "duty"). The problem with such potential liability, however, is the significant factor of a decedent's own negligence which, when measured against any participant's breach of a duty of care, would probably preclude recovery in most cases.
What we are left with in the case before us, positing that there was no proof of encouragement or participation, is a claim which is grounded in a common law duty to rescue. As has been explained in texts and reiterated in case law, there is no such duty, except if the law imposes it based upon some special relationship between the parties. See W. Page Keeton, et al., Prosser and Keaton on Torts, § 56, at 375 (5th ed. 1984) ("The law has persistently refused to impose on a stranger the moral obligation of common humanity to go to the aid of another human being who is in danger, even if the other is in danger of losing his life."); J.D. Lee and Barry A. Lindahl, Modern Tort Law, § 3.07, at 36 (1994 and Supp. 1996) ("With regard to rescues, it has been stated that the general rule is that there is no liability for one who stands idly by and fails to rescue a stranger...."); Restatement (Second) of Torts, § 314 (1965) ("The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action."). The Restatement's Illustration 1 is instructive. ...