Zelenko v. Gimbel Bros., Inc. - 158 Misc. 904, 287 N.Y.S. 134 (Sup. Ct. 1935)

Rule:

If a defendant undertakes a task, even if under no duty to undertake it, the defendant must not omit to do what an ordinary man would do in performing the task.

Facts:

Mary Zelenko took ill while in Gimbel Bros., Inc.’s store. Gimbel placed Zelenko in an infirmary for several hours without any medical care and then left her alone. Gimbel eventually died. Her estate bought a negligence action and Gimbel filed a motion to dismiss the complaint for failure to state a claim. Gimbel contended that it owed no duty to aid Zelenko and therefore could not be held negligent. 

Issue:

Was Gimbel’s contention that it owed no duty to aid Zelenko and therefore could not be held negligent meritorious?

Answer:

No.

Conclusion:

The court denied the motion. It held that Zelenko stated an actionable claim because Gimbel voluntarily assumed a duty when it placed Zelenko in its infirmary. The court said Gimbel assumed its duty by meddling in matters with which legalistically it had no concern and therefore was under a duty not to omit to do what an ordinary man would do in performing the task.