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No Good Deed Goes Unpunished (NY)

February 10, 2023

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In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/02/Bridget-Bardio-v-Rego-II-Borrower-LLC.pdf">Bridget Bardio v. Rego II Borrower, LLC</a>, 2023 NY Slip Op 00405 (2d Dept. 2023)</em>, plaintiff sustained trip and fall injuries when she fell on the stairs of a mall. Plaintiff and her husband had just left a restaurant and argued in front of an elevator heading to the garage. Plaintiff admittedly was intoxicated at the time. The mall security guard came over, de-escalated the argument, and the husband left. The security guard then helped the plaintiff to the garage entrance so she could go to her parked car. He suggested they take the elevator down to the garage and she declined, so they proceeded to take the stairs. As they approached the stairs, plaintiff tripped and fell down the steps. Defendants moved for summary judgment arguing that they were not negligent and owed no specific duty to plaintiff when she fell down the stairs. The trial court denied defendant’s motion and the Second Department affirmed that decision. "Generally speaking, one does not owe a duty to come to the aid of a person in peril, whether the peril is medical or otherwise" (<em>Miglino v Bally Total Fitness of Greater NY, Inc</em>., 92 A.D.3d 148, 159). However, "'one who assumes a duty to act, even though gratuitously, may thereby become subject to the duty of acting carefully'" (<em>Mirza v Metropolitan Life Ins. Co</em>., 2 A.D.3d 808, 809, quoting <em>Nallan v Helmsley-Spear, Inc</em>., 50 N.Y.2d 507, 522; see <em>Parvi v City of Kingston</em>, 41 NY2d 553). "[T]he question is whether defendant's conduct placed plaintiff in a more vulnerable position than plaintiff would have been in had defendant done nothing" (<em>Heard v City of New York</em>, 82 N.Y.2d at 72; see <em>Malpeli v Yenna</em>, 81 A.D.3d 607, 609).

The defendants argued that plaintiff was intoxicated and the security guard did not owe her any specific duty of care, and more importantly, he did nothing wrong. However, the Second Dept. Court felt that there were issues of fact about whether the security guard’s conduct was a detriment to her safety and whether his conduct increased the risk of harm because plaintiff depended on him to get down the stairs and to her car safely. <em>See</em> <em>Heard v City of New York</em>, 82 N.Y.2d at 73; <em>Lewis v Lester's of NY, Inc.</em>, 205 A.D.3d 796). Normally, a duty of care to a person who needs assistance cannot be extended to simply anyone because there is no specific requirement to do so under the law. However, this case shows that an premises employee who engages a patron and chooses to assist a public patron must do so carefully and show a higher standard of care because they purposefully placed themselves to aid the distressed person, which creates the liability and standard of care from their actions.  Property owners should inform their employees that engaging with a public patron, under certain situations, creates a duty of care requiring them to make sure the patron remains free from harm under reasonable circumstances.

Thanks to Raymond Gonzalez for his assistance in this article.  Should you have any questions, please contact <a href="tbracken@wcmlaw.com">Tom Bracken</a>.

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