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Estate of Naitil Desir, By and Through Its Lawfully Appointed v. Jean Robert Vertus

March 7, 2011

ESTATE OF NAITIL DESIR, BY AND THROUGH ITS LAWFULLY APPOINTED ADMINISTRATRIX EDMONDE ESTIVERNE, AND EDMONDE ESTIVERNE, INDIVIDUALLY AND ON BEHALF OF THE HEIRS AT LAW AND DEPENDENTS OF NAITIL DESIR, PLAINTIFFS, AND ESTATE OF COSME NOVALY, BY AND THROUGH ITS LAWFULLY APPOINTED ADMINISTRATOR WILNER NOVALY, AND WILNER NOVALY, INDIVIDUALLY AND ON BEHALF OF THE HEIRS AT LAW AND DEPENDENTS OF COSME NOVALY, PLAINTIFFS-APPELLANTS,
v.
JEAN ROBERT VERTUS, INDIVIDUALLY AND ON BEHALF OF VERTUS FINANCIAL SERVICES AND VERTUS FINANCIAL SERVICES, DEFENDANTS-RESPONDENTS, AND JEAN ROBERT VERTUS, DEFENDANT/THIRD-PARTY PLAINTIFF,
v.
EARL EASTERLING, LOUIS BOGGS AND LETRAY EVANS, THIRD-PARTY DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5359-05.

The opinion of the court was delivered by: The opinion of the court was delivered by Grall, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 1, 2010 - Decided

Before Judges Rodriguez, Grall and C.L. Miniman.

Cosme Novaly, a friend and neighbor of defendant Jean Robert Vertus, was shot in front of Vertus Financial Services by a robber leaving the premises. Novaly was there because he was lending assistance to Vertus, who had come to Novaly and told him that he thought "something was going on" in the apartment that he used as his residence and place of business. Novaly died from the gunshot wound, and his estate filed a complaint charging Vertus and his business with negligence.

On defendants' motion for summary judgment, the trial judge concluded that defendants owed no duty of care to Novaly and entered judgment in their favor. Novaly's estate appeals. We hold 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.*fn1 Accordingly, we reverse.

The factual statement that follows is drawn from Vertus's deposition testimony. At the time of this incident, he operated a "financial services" business out of his second-floor apartment in a high-crime area of Irvington. In fact, Vertus had been robbed and stabbed while working there three years before the incident that led to Novaly's death. In Vertus's words, in Irvington "you have to be scared for your life."

The events at issue here started at around 5:00 p.m. on a September evening. Vertus had just finished doing business with a client at his dining room table. As the client walked toward the living room and the stairs to leave, Vertus saw her "step back." Although he did not see or hear anything else, he "knew inside" that something was wrong because "if you have to open the door and . . . you see something, you just . . . step back." He feared that "[a] robbery or something" was about to take place.

Vertus did not follow the client; he left by way of side stairs leading to the first-floor apartment to look for a telephone and call 911 because he thought "something happened." Vertus knocked, but his downstairs neighbor did not respond. He then sought help from Novaly and his roommate Mr. St. Louis, who lived three houses away. Both had done business with him, and they were very close to him - in his words, "like family."

He did not stop at the first house because he knew those neighbors did not have a phone, and he did not stop at the second house because the residents were elderly.

When Vertus arrived, he told Novaly and St. Louis that "something" was going on in his apartment. He did not ask them to call 911 because he claimed to not know what was going on, but he did ask them to call his office to see if someone could pick up the phone. They complied, but the line was busy. Novaly and St. Louis left Vertus in their apartment because he was "scared," and they went outside to see what was happening.

Vertus acknowledged that he had not told his neighbors what he thought was happening. He just told them he saw the client "move back" and that "the way she moved it seemed like something [was] going on in [his] business."

When asked if he had requested help from Novaly and St. Louis, Vertus responded: "Well, they were helping me. I mean, I went downstairs, they g[a]ve me the telephone and they left." He also said that he thought Novaly and St. Louis were going in "the direction of [his] business" when they left, because he had "c[o]me to them to ask, you know, for help." There ...


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