The Third Department determined employees of Tops supermarket did not have a duty to come to the aid of decedent, who died in his parked car in the Tops parking lot. Decedent and companions were drinking and doing drugs. When decedent was unconscious, his companions placed him in his own car and allegedly told Tops employees decedent was in need of emergency aid. The court held that the Tops employees did not have a legal duty to aid decedent:
“In any negligence action, the threshold issue before the court is whether the defendant owed a legally recognized duty to the plaintiff” … . This is frequently a “difficult task [and,] [d]espite often sympathetic facts in a particular case before them, courts must be mindful of the precedential, and consequential, future effects of their rulings, and limit the legal consequences of wrongs to a controllable degree” … . Consonant with the premise that a moral duty does not equate with a legal duty … , it is the general rule that “one does not owe a duty to come to the aid of a person in peril” … . Exceptions to the general rule exist, such as, for example, a common carrier’s duty to take reasonable action to protect a passenger who is being assaulted … .
Here, although Tops was open to shoppers, this did not necessarily create an affirmative duty to come to the aid of anyone who was anywhere on its property no matter how unrelated such person’s presence was to Tops’ function as a grocery store. Decedent was not a customer of Tops, neither he nor his companions were on the premises for any activity related in any manner to Tops’ business, Tops’ employees did not participate in any fashion in the conduct of decedent’s companions, it is not alleged that Tops’ employees saw or had any contact with decedent on the premises, and Tops’ employees did not take any actions that put decedent in a worse position than the one in which his companions left him. Daily v Tops Mkts., LLC, 2015 NY Slip Op 09336, 3rd Dept 12-17-15
NEGLIGENCE (NO LEGAL DUTY TO AID UNCONSCIOUS PERSON IN SUPERMARKET PARKING LOT)/DUTY OF CARE (NO LEGAL DUTY TO AID UNCONSCIOUS PERSON IN SUPERMARKET PARKING LOT)