Ann Samolyk v. Dorothy Berthe, III (085225) (Ocean County & Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office
of the Clerk for the convenience of the reader. It has been neither reviewed nor
approved by the Court and may not summarize all portions of the opinion.
Ann Samolyk v. Dorothy Berthe, III (A-16-21) (085946)
Argued February 1, 2022 -- Decided June 13, 2022
FUENTES, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In this appeal, the Court considers 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.
Plaintiff Ann Samolyk sustained neurological and cognitive injuries when she
entered a lagoon in Forked River to rescue her neighbors’ dog, which had fallen or
jumped into the water. Samolyk’s husband filed a civil action against defendants,
alleging they were liable under the rescue doctrine by negligently allowing their dog
to fall or jump into the water, prompting Samolyk to attempt to save the dog.
Neither the Law Division nor the Appellate Division found the doctrine
applicable. The Court granted certification. 248 N.J. 518 (2021).
HELD: After reviewing the noble principles that infuse the public policy
underpinning this cause of action, the Court declines to consider property, in
whatever form, to be equally entitled to the unique value and protection bestowed on
a human life. The Court nevertheless expands the rescue doctrine to include acts
that appear to be intended to protect property but are in fact reasonable measures
ultimately intended to protect a human life.
1. Under the rescue doctrine, “[t]he 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.” Wagner v. Int’l Ry. Co., 133 N.E. 437, 437-38 (N.Y. 1921). The doctrine has
also been held to provide a source of recovery to one who is injured while
undertaking the rescue of another who has negligently placed himself in peril. Thus,
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 in doing so. The Restatement (Second) of Torts and a majority of
states have extended the rescue doctrine to efforts to save property. (pp. 6-11)
1
2. The Court declines to expand the rescue doctrine to include injuries sustained to
protect property, except in settings in which the plaintiff has acted to shield human
life. Notwithstanding the strong emotional attachment people may have to dogs,
cats, and other domesticated animals, or the great significance some may attribute to
family heirlooms, or works of art generally considered as irreplaceable parts of our
cultural history, sound public policy cannot sanction expanding the rescue doctrine
to imbue property with the same status and dignity uniquely conferred upon a human
life. The risk protected by the rescue doctrine is calibrated only by the
reasonableness of the actions taken by the rescuer because all human life is equally
precious. The same calculation, considering the necessarily subjective attachments
to property, would prove untenable. (p. 12)
3. The Court explains that certain preemptive acts that appear to be driven by the
protection of property are, at their core, adjuncts to the protection of human life and
thus may give rise to a cause of action under the rescue doctrine. By contrast, the
uncontested evidence here shows that Samolyk’s actions were based solely on her
perception of danger to the dog’s life. The complaint was properly dismissed
because the decision to jump into the canal to save the dog’s life does not give rise
to a cognizable claim under the rescue doctrine. (pp. 13-14)
AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
SOLOMON, and PIERRE-LOUIS join in JUDGE FUENTES’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-16 September Term 2021
085946
Ann Samolyk and
John Samolyk,
Plaintiffs-Appellants,
v.
Dorothy Berthe, III,
Defendant,
and
Ilona Destefanis and
Robert Destefanis,
Defendants-Respondents.
On certification to the Superior Court,
Appellate Division .
Argued Decided
February 1, 2022 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, of counsel and on the
brief).
1
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
1
We refer to plaintiffs by their first names because they share the same last
name. We do not intend any disrespect.
2
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.
2
Although defendants dispute this part of the facts presented to the Law
Division, we will accept them as accurate for the purpose of addressing the
dispositive legal issue raised by the parties.
3
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
4
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 (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.
5
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 (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
(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 (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
6
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.
[133 N.E. 437, 437-38 (N.Y. 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,
244 N.E.2d 26, 28 (N.Y. 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 (App. Div. 1998) (quoting Burns
v. Mkt. Transition Facility, 281 N.J. Super. 304, 310 (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. 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; Blackburn v. Broad St. Baptist Church, 305
N.J. Super. 541, 544-46 (App. Div. 1997); Tornatore v. Selective Ins. Co. of
Am., 302 N.J. Super. 244, 252 (App. Div. 1997).
7
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 (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.
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 (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
3
The firefighters’ rule was a common law affirmative defense absolving the
owner or occupier of land of liability “to a paid fireman for negligence with
respect to the creation of a fire.” Krauth v. Geller, 31 N.J. 270, 273 (1960).
8
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 in doing so.”
[Id. at 321 (quoting Restatement (Second) of Torts
§ 445 cmt. d).]
Those cases illustrate that, as the guardians of our state’s common law,
this Court has limited the application of the rescue doctrine to reflect the sound
public policy Justice Cardozo eloquently described in Wagner.
C.
In this appeal, we are asked to expand the scope of the rescue doctrine to
include those who voluntarily choose to expose themselves to significant
danger in an effort to safeguard the property of another. We decline to modify
the rescue doctrine to incorporate such a far-reaching departure from the
fundamental principles embedded in Wagner.
We acknowledge that the Restatement (Second) of Torts extends the
rescue doctrine to property and provides that
[i]t is not contributory negligence for a plaintiff to
expose himself to danger in an effort to save himself
or a third person, or the land or chattels of the plaintiff
9
or a third person, from harm, unless the effort itself is
an unreasonable one, or the plaintiff acts
unreasonably in the course of it.
[§ 472 (emphasis added).]
See also Prosser & Keeton on Torts, § 44 (5th ed. 1984) (explaining that,
“[a]lthough there has been some disagreement, the great majority of courts
now apply the [rescue doctrine] to one who tries to rescue the property of
another, even when under no duty to do so, and even though the property
involved is that of the defendant”).
The Second Restatement, however, acknowledges that “a plaintiff may
run a greater risk to his own personal safety in a reasonable effort to save the
life of a third person than he could run in order to save the animate or
inanimate chattels of his neighbor or even of himself.” § 472 cmt. a.
Furthermore, the Restatement (Third) of Torts: Liability for Physical and
Emotional Harm includes the extension to property, noting: “This Section is
also applicable to a rescuer of imperiled property, whether that property is
owned by another or by the rescuer.” § 32, cmt. b (Am. Law Inst. 2010).
A majority of our sister states that have extended the rescue doctrine to
cover property have done so in accord with the Restatement (Second) of
Torts. See, e.g., Estate of Newton v. McNew, 698 P.2d 835, 837 (Colo. App.
1984) (holding that the doctrine is applicable to property after finding that a
10
“majority of states apply” the doctrine to “one who tries to rescue the property
of another”); Neff v. Woodmen of the World Life Ins. Soc’y, 529 P.2d 294,
296 (N.M. Ct. App. 1974) (finding the doctrine applicable to property and
noting that “[t]he majority of courts . . . have extended [the doctrine] to
include situations where property is in danger of being severely damaged or
destroyed”); Henjum v. Bok, 110 N.W.2d 461, 463 (Minn. 1961) (holding that
the doctrine is applicable “where an attempt is being made to save human life
or property”).
Other jurisdictions have declined to expand the rescue doctrine to
include the protection of property. For example, the Missouri Eastern District
Court of Appeals held in Welch v. Hesston Corp. that, “[u]nlike a majority of
other jurisdictions,” it has consistently declined to extend the rescue doctrine
to include the protection of property. 540 S.W.2d 127, 129 (Mo. Ct. App.
1976). The court explained that
[t]he policy basis of the distinction in treatment of
rescuers of persons and rescuers of property seems “to
rest upon that high regard in which the law holds human
life and limb; whereas, when mere property is involved,
one may not voluntarily subject another to greater
liability than that which he seeks to avert.”
[Id. at 129-30 (quoting Tayer v. York Ice Mach. Corp.,
119 S.W.2d 240, 246 (Mo. 1937)).]
11
IV.
Against this analytical backdrop, we decline to expand the rescue
doctrine to include injuries sustained to protect property, except in settings in
which the plaintiff has acted to shield human life. We are convinced that any
attempt to reform the application of the rescue doctrine to include the
protection of property, whether animate or inanimate, realty or chattel, must
emanate from our innate instinct to protect human life. Notwithstanding the
strong emotional attachment people may have to dogs, cats, and other
domesticated animals, or the great significance some may attribute to family
heirlooms, or works of art generally considered as irreplaceable parts of our
cultural history, sound public policy cannot sanction expanding the rescue
doctrine to imbue property with the same status and dignity uniquely conferred
upon a human life.
The words uttered by Justice Cardozo describe the contours of a cause of
action that tolerates a concomitant degree of harm a plaintiff is reasonably
willing to risk and, if necessary, endure to protect a human life. The risk
factor is calibrated only by the reasonableness of the actions taken by the
rescuer because all human life is equally precious. The same calculation,
considering the necessarily subjective attachments to property, would prove
untenable.
12
We are also aware, however, that certain preemptive acts that appear to
be driven by the protection of property are, at their core, adjuncts to the
protection of human life and thus may give rise to a cause of action under the
rescue doctrine. For example, consider a neighbor who reports a fire in a
nearby house to the proper authorities, then attempts to squelch the fire based
on a reasonable, good faith belief that children or other vulnerable inhabitants
may be in immediate danger, or because it appears likely the fire may spread
to other occupied properties. Under those circumstances, if the fire was
negligently started, the neighbor may have a cognizable basis to invoke the
rescue doctrine to recover damages for injuries caused by the preemptive
measures taken to limit the intensity of the fire, even if it is later determined
there was no actual risk to human life because the house was unoccupied.
Following that line of reasoning, plaintiffs’ cause of action would have
survived a motion for summary judgment had she jumped into the canal after
defendants’ dog as a simultaneous reaction to seeing a child of tender years
running after the animal and quickly approaching the edge of the dock. In that
hypothetical situation, Ann’s actions to protect the child from imminent danger
by rescuing the dog may have been reasonable and could therefore have served
as the basis for a cognizable cause of action under the rescue doctrine.
13
By contrast, the uncontested evidence here shows that Ann’s actions
were based solely on her perception of danger to the dog’s life. These nuanced
distinctions are intended to acknowledge and reaffirm the public policy
underpinning the rescue doctrine in our state, to wit, the protection of human
life. Thus, plaintiffs’ complaint was properly dismissed because Ann’s
decision to jump into the canal to save the dog’s life does not give rise to a
cognizable claim under the rescue doctrine.
V.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
SOLOMON, and PIERRE-LOUIS join in JUDGE FUENTES’s opinion.
14