Samolyk v. Berthe

251 N.J. 73

276 A.3d 108

Ann SAMOLYK and John Samolyk, Plaintiffs-Appellants,

v. Dorothy BERTHE, III, Defendant,andIlona Destefanis and Robert Destefanis, Defendants-Respondents.

A-16 September Term 2021

085946

Supreme Court of New Jersey.

Argued February 1, 2022

Decided June 13, 2022

William D. Wright argued the cause for appellants (The Wright Law Firm, attorneys; William D. Wright and David T. Wright, on the briefs).

John Burke argued the cause for respondents (Burke & Potenza, attorneys; John Burke, Parsippany, of counsel and on the brief).

JUDGE FUENTES (temporarily assigned) delivered the opinion of the Court.

This appeal requires this Court to determine whether to expand the common law rescue doctrine to permit plaintiffs to recover damages for injuries sustained as a proximate result of attempting to rescue defendants’ dog. After reviewing the noble principles that infuse the public policy underpinning this cause of action, we decline to consider property, in whatever form, to be equally entitled to the unique value and protection we bestow on a human life. We nevertheless expand the cognizable scope of the rescue doctrine to include acts that facially appear to be intended to protect property, but are in fact reasonable measures ultimately intended to protect a human life.

I.

This matter arises from injuries sustained by plaintiff Ann Samolyk while trying to rescue a dog owned by defendants Ilona and Robert DeStefanis. Ann's¹ husband, John Samolyk, filed a civil action against defendants, as Ann's guardian ad litem, alleging defendants were liable under the rescue doctrine by negligently allowing their dog to fall or jump into the canal that borders their property, prompting Ann to dive into the water to prevent the dog from drowning. The complaint also included a per quod claim by John seeking compensation for any loss or impairment of his spouse's services, society, and companionship due to injuries Ann sustained as a proximate result of defendants’ negligence.

The parties are neighbors in Forked River, an unincorporated bayfront community within Lacey Township. Their homes are situated on a canal. In the evening of July 13, 2017, defendants’ dog fell or jumped into the canal that snakes around the rear area of this shore community. Ann claimed she heard someone calling for help to rescue their dog that had fallen into the canal.² A report filed by a Lacey police officer describes the incident as "a report of a dog swimming in the lagoon." The report states that Ann "entered the lagoon to rescue the dog." The dog "was removed from the lagoon," without any apparent harm, by defendants’ son and a family friend. Regrettably, Ann was found "unconscious on a floating dock." In response to defendants’ interrogatories, plaintiffs allege Ann sustained neurological and cognitive injuries as a result of the incident.

After joinder of issue and the parties’ answers to interrogatories, as well as production of relevant documentary evidence, but before the parties took depositions, the Law Division judge assigned to manage the case directed the parties to file dispositive motions addressing whether plaintiffs raised a cognizable claim under the rescue doctrine.

Plaintiffs’ counsel argued that defendants "invited the rescue because the dog was in peril, ... [and Ann] would not [have] jump[ed] in the lagoon and [nearly] drown[ed] but for the dog being in there and people screaming about having to rescue the dog." In rebuttal, defense counsel noted that no court in this State had extended the rescue doctrine to apply to the protection of property. The Law Division judge agreed with defendants’ position. The judge noted he was not empowered "to start defining what level of property is worth risking a human life."

The Appellate Division reached the same conclusion in an unpublished opinion, noting that "no reported case from any New Jersey court has applied the rescue doctrine to support a cause of action brought by the rescuer of real or personal property against a defendant who, through his negligence, placed the property in peril."

The Appellate Division's thoughtful opinion recognized, however, that the Restatement (Second) of Torts § 472 (Am. Law Inst. 1965) has extended the rescue doctrine to the protection of property. Plaintiffs also relied on caselaw from our sister states tracking the Restatement's approach. Although the Appellate Division found that "[s]ome of that authority is persuasive and raises a legitimate question [as to] why the rescue doctrine should be limited to the rescue of another human being," it nevertheless declined to expand the scope of this common law doctrine in deference to its role as an intermediate appellate court.

This Court granted plaintiffs’ petition for certification to determine whether the rescue doctrine extends to property, specifically here, a dog. 248 N.J. 518, 261 A.3d 321 (2021).

II.

The parties rely on the arguments they made before the Appellate Division. Plaintiffs urge this Court to rely on the Restatement, as the majority of our sister states have done, and extend the rescue doctrine to protect property. In response, defendants argue it is unclear whether a majority of states have extended the doctrine to protect property, and they emphasize that New Jersey courts have consistently applied the rescue doctrine to encourage voluntary exposure to danger only to protect human life.

III.

A.

This Court reviews the grant of a motion for summary judgment de novo, applying the same standard used by the trial court. Woytas v. Greenwood Tree Experts, Inc., 237 N.J. 501, 511, 206 A.3d 386 (2019). We must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995) ; R. 4:46-2(c). The issue before us concerns the development of our state's common law, a responsibility exclusively entrusted to this Court. See DCPP v. J.R.-R., 248 N.J. 353, 373, 258 A.3d 1094 (2021).

B.

The rescue doctrine is best described by quoting the words of Justice Benjamin N. Cardozo, then Judge of the New York Court of Appeals, in Wagner v. International Railway Co.:

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid.

[ 232 N.Y. 176, 133 N.E. 437, 437-38 (1921).]

The rescue doctrine established in Wagner was originally limited to situations "where three persons are involved, i.e., one party by his culpable act has placed another person in a position of imminent peril which invites a third person, the rescuing plaintiff, to come to his aid." See Provenzo v. Sam, 23 N.Y.2d 256, 296 N.Y.S.2d 322, 244 N.E.2d 26, 28 (1968). New York courts later expanded the rescue doctrine "to encompass a two-party situation where the culpable party has placed himself in a perilous position which invites rescue." Ibid.

The rescue doctrine "has long been a part of our State's social fabric." Saltsman v. Corazo, 317 N.J. Super. 237, 248, 721 A.2d 1000 (App. Div. 1998) (quoting Burns v. Mkt. Transition Facility, 281 N.J. Super. 304, 310, 657 A.2d 472 (App. Div. 1995) ). The doctrine has been applied "to situations where the rescuer ... sues the rescued victim who is either completely, or partially, at fault for creating the peril that invited the rescue."

Id. at 249, 721 A.2d 1000. The Appellate Division has consistently applied the doctrine to cases where the rescuer is injured when trying to rescue another person. See id. at 247, 721 A.2d 1000 ; Blackburn v. Broad St. Baptist Church, 305 N.J. Super. 541, 544-46, 702 A.2d 1331 (App. Div. 1997) ; Tornatore v. Selective Ins. Co. of Am., 302 N.J. Super. 244, 252, 695 A.2d 313 (App. Div. 1997).

The first time this Court directly considered the rescue doctrine was in Ruiz v. Mero, a case in which we affirmed the Appellate Division's opinion, which held that the Legislature abrogated the "firefighters’ rule"³ when it adopted N.J.S.A. 2A:62A-21. 189 N.J. 525, 527, 917 A.2d 239 (2007). In Ruiz, a unanimous Court upheld the right of a police officer to rely on the rescue doctrine to sue "a commercial landowner for injuries he suffered when quelling a disturbance at the owner's bar." Ibid. In the course of explaining the statute's unambiguous conflict with the firefighters’ rule, Justice Long noted the rescue doctrine was "[d]eeply rooted" in our state's common law and "provides a source of recovery to one who is injured while undertaking the rescue of another who has negligently placed himself in peril." Id. at 528-29, 917 A.2d 239.

In Estate of Desir v. Vertus, we reviewed the applicability of the rescue doctrine in the context of a "tragic shooting death of an individual by a criminal fleeing from a business." 214 N.J. 303, 308, 69 A.3d 1247 (2013). The estate of the victim filed a civil action against the defendant based in part on the rescue doctrine. Ibid. We held the defendant did not negligently create the danger that caused the decedent to come to his aid because the

evolution of the rescue doctrine remains grounded upon essential tort concepts of duty and foreseeability. As the doctrine has been explained, an actor is liable for harm sustained by a rescuer "where the conduct of the actor has created a danger only to himself, if at the time of such conduct he should reasonably anticipate that others might attempt to rescue him from his self-created peril, and sustain harm

...