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February 16, 2016

A Moral Duty Does Not Equate With A Legal Duty; One Does Not Owe A Duty To Come To The Aid Of A Person In Peril

In Daily v. Tops Markets, the Appellate Division, Third Department addressed the question of whether a business open to the public has a duty to come to the aid of person in peril, and if so, under what circumstances.

The decedent, Joel States, had been consuming alcohol and drugs with several companions when he passed out and began experiencing difficulty breathing. At 1:00 a.m. on January 20, 2013, his companions placed States in his own car and drove the vehicle to the parking lot of defendant Tops Markets. Rather than reaching out for emergency medical assistance, States' companions allegedly told Tops' employees that there was someone in the parking lot in need of such care, and then left the area. The Tops' employees took no action, and States later died.

A subsequent action by States' administrator alleged that Tops had "negligently failed to summon emergency assistance for decedent." Supreme Court granted Tops' motion to dismiss the complaint for failure to state a cause of action, and plaintiff appealed.

On appeal, the Third Department acknowledged the all too "difficult task" of making a determination based on "sympathetic facts." Id. The Court, however, mindful that "a moral duty does not equate with a legal duty," cited the "general rule that one does not owe a duty to come to the aid of a person in peril." Although narrow exceptions to this rule exist, such as a common carrier's duty to protect a passenger threatened with an assault, the mere fact that Tops' was open to the public did not "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."

The Court listed a number of factors that militated against expanding the duty point. Specifically, the Court observed that States "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 [his] companions, it [was] 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."

This case is significant insofar as it confirms the distinction between moral and legal duties for purposes of finding legal liability. In other words, "notwithstanding a moral obligation, Tops was not under an affirmative legal duty to assist decedent." Although the Court refused to expand the duty point, it implied that various factors could potentially state a valid cause of action against public businesses such as Tops, including: whether the injured party was on the premises for an activity related to the business; whether the employees had contact with the injured party and the extent of that contact; and whether the employees engaged in the activity that ultimately led to the injury.

If you require further information regarding the content of this Legal Alert, please contact either of the Co-Chairs of the Torts & Products Liability Defense Practice Area, Thomas J. Drury, at (716) 858-3845 or, or Matthew J. Larkin, at (315) 425-2805 or, or the author of this alert Jonathan H. Bard at (518) 429-4290 or


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