## Facts

- Mary Zelenko became ill while shopping in Gimbel Brothers’ department store.
- Store personnel took her to the store’s infirmary.
- The administrator of her estate alleged the store kept her in the infirmary for about six hours without medical attention.
- The complaint further alleged the store isolated her from public view and from others who might have summoned an ambulance or otherwise provided assistance.
- Mary Zelenko later died, and her estate brought a negligence-based wrongful death action.

## Issues

1. Whether a business that had no initial duty to provide medical aid to a customer can incur a duty by voluntarily undertaking to assist.
2. Whether allegations that the defendant took charge of the plaintiff’s decedent, isolated her from outside help, and then failed to provide reasonable care state a claim for negligence.

## Decision

- The court denied the defendant’s motion to dismiss for failure to state a claim.
- It assumed for pleading purposes that the store had no original legal duty to rescue or treat the customer.
- It held that once the store undertook to render aid and took control of the situation, it had a duty to exercise reasonable care in carrying out that undertaking.
- The allegations of prolonged confinement without care and of preventing others from providing aid were sufficient to allow the negligence claim to proceed.

## Legal Principles

- Absent a duty, mere inaction is not negligence.
- A duty to use reasonable care may arise when a defendant voluntarily undertakes to assist another, even if the defendant had no obligation to begin assisting.
- When a defendant’s undertaking includes taking charge of the person needing help, isolating the person, or cutting off other sources of assistance, a failure to act with reasonable care in the undertaking can be actionable negligence.

## Conclusion

A negligence complaint is legally sufficient where a store allegedly took charge of an ill customer, isolated her from potential outside assistance, and then failed to use reasonable care in providing aid; a voluntary undertaking can create a duty even when no initial duty to rescue existed.


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