Parties:
Plaintiff (P): Jacob Zelenko, Administrator of estate of Mary Zelenko, Deceased/wife/store customer: Mary Zelenko.
Defendant (D): Gimbel Brothers, Inc., NY department store.
Facts & Procedure:
P brings negligence claim against D for initiating and then abandoning the rescue of his wife, a store customer. Wife fell ill in D’s store and was taken to store infirmary, where she was left unattended and out of sight for six hours and later died. D moves to dismiss P’s claim.
Issue:
In the absence of a pre-existing legal duty to rescue, when an individual voluntarily initiates a rescue, must that individual then use the reasonable care…show more content… Zelenko at all. D voluntarily acted as a Good Samaritan but was not required to rescue Mrs. Zelenko.
Rule:
If a defendant undertakes to rescue someone, even if there is no duty to rescue, defendant must not omit to do what an ordinary person would do in performing the task.
Analysis & Holding:
D initially had no legal duty to rescue Mrs. Zelenko, but once D voluntarily initiated the rescue, D had to perform with the reasonable care an ordinary person would employ in the same situation. D breached the duty to use reasonable care when he removed Mrs. Zelenko from the store, segregating her from others who might have conducted a more effective rescue, and then abandoned her. Therefore, because D failed to use reasonable care of an ordinary person after voluntarily undertaking to rescue Mrs. Zelenko, P has a claim against D.
Comments:
In 1935, department stores had no legal duty to rescue a customer who became ill on the premises! Seems unlikely today – one would think that a store could be negligent if it failed to at least call 911.
Note: The Court emphasized the duty arose only because D initiated rescue – distinguishes automatic, heightened duty of common carrier (bus driver, pilot,
