Zelenko v. Gimbel Bros., Inc.

Supreme Court of New York · Torts

TortsNegligenceDutyUndertakingnegligencedutyno-duty rulevoluntary undertaking

Facts

Plaintiff's intestate became ill in the defendant's store. The court assumed the defendant initially owed her no duty to act at all. However, the defendant undertook to render medical aid and, according to the plaintiff, kept her in an infirmary for six hours without any medical care. By segregating her in the infirmary, the defendant prevented others from summoning aid and then left her alone.

Issue

Whether a store that may have had no initial duty to assist a customer who became ill can nonetheless be liable in negligence after voluntarily undertaking to render medical aid and then allegedly failing to exercise ordinary care in doing so.

Rule

If a defendant owes no duty to a plaintiff, refusal to act is not negligence. But when a defendant voluntarily undertakes a task, even though under no duty to undertake it, the defendant must perform the task with the care that an ordinary person would use.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a street fair in Columbus, Nina Ortiz saw Leo Mercer collapse near her booth. Nina walked away without speaking to him or calling anyone, and several pedestrians also kept moving. Leo later suffered serious harm from the delay in treatment.

Under the majority rule, which statement is most accurate regarding Nina's negligence liability on these facts alone?

Explanation. The majority states the general rule that if a defendant owes no duty to the plaintiff, refusal to act is not negligence. Liability arises here only when the defendant undertakes a task; without an undertaking, there is no negligence on these facts alone. This rule is derived from the majority opinion's distinction between no-duty nonaction and assumed-duty performance.