Theobald v. Dolcimascola
299 N.J. Super. 299, 1997 N.J. Super. LEXIS 150, 690 A.2d 1100 (1997)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Under common law, a bystander has no legal duty to act or intervene to protect another person from self-inflicted harm, even if the harm is easily preventable, unless a special relationship exists between the parties or the bystander actively participated in or encouraged the harmful conduct.
Facts:
- Sean Theobald and five of his teenage friends, including Michael Dolcimascola, Robert Brack, and Amy Flanagan, gathered for a birthday party in Theobald's bedroom.
- During the party, Theobald produced an unloaded revolver and ammunition, which were examined by everyone present.
- After a discussion about another friend who had died playing Russian Roulette, Theobald announced that he would also try the 'game.'
- Theobald placed a single bullet in the gun, pointed it at his own head, and pulled the trigger several times without the gun firing.
- He then put the gun down, checked the cylinder, and picked it up again to try three or four more times.
- The gun then discharged, resulting in Theobald's death.
- His five friends were present and watched these events unfold without intervening.
Procedural Posture:
- Plaintiffs Colleen Theobald (as administrator of Sean Theobald's estate) and Harold Theobald sued defendants Michael Dolcimascola, Robert Brack, and Amy Flanagan in a New Jersey trial court (the Law Division).
- The trial court granted summary judgment in favor of the defendants.
- The trial court reasoned that if the defendants were merely observers and did not actively participate, they had no legal duty to stop the decedent.
- Plaintiffs, as appellants, appealed the trial court's grant of summary judgment to the Superior Court of New Jersey, Appellate Division.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Do bystanders who are mere observers of a person's self-destructive act, without actively participating in or encouraging the act, have a legal duty to intervene and prevent the harm?
Opinions:
Majority - Dreier, P.J.A.D.
No. Mere observers have no legal duty to prevent another person's self-inflicted harm if they did not actively participate in or encourage the act. The court affirmed the general common law principle that there is no duty to rescue or aid another person in danger unless a 'special relationship' exists, which was not created by the parties' friendship. The court distinguished this case of passive observation from scenarios where defendants are active participants in a dangerous joint enterprise, which could create both criminal and civil liability. While the defendants' inaction was morally regrettable and they could have easily intervened, the law has persistently refused to impose an affirmative duty to act in such situations. Any expansion of this duty to create liability for bystanders must be declared by the state's Supreme Court.
Analysis:
This decision reaffirms the traditional, and often criticized, common law 'no duty to rescue' rule. It establishes a clear distinction between active participation in a dangerous activity, which can create a duty of care, and passive observation, which does not. The case highlights the law's reluctance to impose affirmative duties on individuals, even in the face of foreseeable and easily preventable tragedy. By remanding on a related evidentiary issue, however, the court left open the possibility of liability if the facts could show that the defendants' conduct went beyond passive observation to active, deceptive participation.
