WORSTER-SIMS et al v. TROPICANA ENTERTAINMENT, INC. et al

Filing 87

MEMORANDUM OPINION AND ORDER: ORDERED that defendant's Motion for Leave to Amend Pleading to Include a Third-Party Complaint Against Beau Cantera 74 is DENIED. Signed by Magistrate Judge Joel Schneider on 9/10/2014. (tf, )

[Doc. No. 74]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JAMIE DEE WORSTER-SIMS
AND ASHLEE SIMS, H/W
Plaintiffs,
Civ. No. 13-1981 (RBK/JS)
v.
TROPICANA ENTERTAINMENT,
INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the “Motion for Leave to
Amend

Answer

to

Include

Third-Party

Complaint

Against

Beau

Cantera” filed by defendant City of Atlantic City (“Atlantic City”)
[Doc. No. 74]. The Court is in receipt of plaintiffs’ opposition
[Doc. No. 79] and Atlantic City’s reply [Doc. No 81]. The Court
recently held oral argument. 1
Atlantic City seeks to amend its answer to include a thirdparty complaint against plaintiff’s cousin, Beau Cantera. 2 On June
2,

2014,

the

Court

denied

defendants’

first

attempt

to

join

1

Although the instant motion was filed by Atlantic City, all defendants
join in the motion. All defendants were invited to file supporting briefs if
they so chose (see July 11, 2014 Order, at 8 [Doc. No. 71]), and they
participated at the September 2, 2014 oral argument.
2 All references to plaintiff shall refer to Jamie Dee Worster-Sims, the
plaintiff who was physically injured by defendants’ alleged tortious and
unconstitutional conduct.

Cantera. See June 2, 2014 Memorandum Opinion and Order [Doc. No.
59]. The Court noted that in order to join Cantera defendants had
to show that Cantera owed plaintiff a duty of care. Id. at 10.
After analyzing the proposed third-party complaint in light of the
applicable case law, the Court held that no such duty existed. Id.
at 18. Atlantic City’s subsequent motion for reconsideration was
also denied [Doc. No. 71]. Atlantic City now argues that the
“rescue doctrine” salvages its claim against Cantera. The Court
disagrees and will deny Atlantic City’s motion. Atlantic City also
repeats its standing defense which will also be denied.
BACKGROUND
The background for this motion summarized in the Court’s
previous Opinion has not changed. Plaintiff alleges that in May of
2011, plaintiff and his cousin, Beau Cantera (“Cantera”), were
forcibly removed from the Providence nightclub by Atlantic City
Police Officer Jones and security personnel and/or employees of
Tropicana. Compl. at ¶¶ 29-31. Plaintiff alleges that while he was
being pushed out of the nightclub, his shoe fell off. Id. at ¶ 33.
Plaintiff

alleges

that

while

he

“attempted

to

return

to

the

interior of the nightclub . . . to retrieve his missing shoe . .
. he was struck in the head with a closed fist by [d]efendant,
[Officer] Michael Jones.” Id. at ¶¶ 34-35. Plaintiff claims that
Officer Jones acted without justification and was not provoked by
him. Id. at ¶ 38. Plaintiff also alleges that defendants acted
2

with deliberate indifference to his “obvious need for medical
assistance” and that as a result of the attack he suffered serious
and permanent injuries, including traumatic brain injuries. Id. at
¶¶ 41, 45.
As noted, this is defendant’s “third bite at the apple.” In
its

previous

Opinion

denying

defendants’

motions,

the

Court

initially found that because there was no undue delay, bad faith
or dilatory motives on the part of the defendants, and an absence
of substantial prejudice to the plaintiffs, all within the meaning
of Fed. R. Civ. P. 15, only the futility of the proposed amendment
need be considered. See June 2, 2014 Order, at 5-6. Nonetheless,
the Court denied the motions, finding that defendants’ proposed
amended third-party claims for contribution and/or indemnification
were futile because Cantera and Officer Jones were not joint
tortfeasors and Cantera owed no duty to plaintiff to anticipate
the actions of Officer Jones. See id., at 18-22. Atlantic City
subsequently filed a motion for reconsideration [Doc. No. 60]. In
that motion Atlantic City argued the Court erred in part by failing
to consider plaintiff’s cause of action against Cantera under New
Jersey’s “rescue doctrine.”
Although the Court denied the motion for reconsideration, it
granted Atlantic City leave to file a renewed motion to amend its
pleading. See July 11, 2014 Order [Doc. 71]. The Court wanted to
be confident that Atlantic City had a full and fair opportunity to
3

brief and argue the “rescue doctrine” in view of its claim that
this did not occur. Atlantic City can certainly not make the same
claim now.
DISCUSSION
As stated supra, the Court now only considers the futility
of the amendment. Courts deem an amendment futile if it fails to
state a cause of action. Cureton v. Nat'l Collegiate Athletic
Ass'n, 252 F.3d 267, 273 (3d Cir. 2001). Thus, “[w]hen
determining whether the amended complaint is futile, a district
court uses the same standards that it considers in the context
of a motion to dismiss under Fed. R. Civ. P. 12(b)(6).” Badger
v. City of Philadelphia Office of Prop. Assessment, 563 Fed.
Appx. 152, 154 (3d Cir. 2014) (citing Burtch v. Milberg Factors,
Inc., 662 F.3d 212, 231 (3d Cir. 2011)). In deciding a 12(b)(6)
motion, “a court must consider only the complaint, exhibits
attached to the complaint, matters of public record, as well as
undisputedly authentic documents if the complainant’s claims are
based upon these documents.” Id. at *5 (citing Mayer v.
Belichick, 605 F.3d 223, 230 (3d Cir. 2010)).
Atlantic City contends that: (1) plaintiff does not have
standing to contest the joinder of Cantera and (2) the rescue
doctrine salvages its claim against Cantera. Each argument is
considered in turn.
1. Standing
4

As a threshold matter, Atlantic City argues that plaintiff
lacks standing to contest the futility of the proposed amendment.
See Reply at 3 (citing Custom Pak Brokerage, LLC v. Dandrea
Produce, Inc., C.A. 13-5592, 2014 WL 988829, at *2 (D.N.J. Feb.
27, 2014)). Atlantic City seems to argue, therefore, that if
plaintiff cannot raise a futility defense, its motion must be
granted. However, the Court previously stated in its June 2, 2014
Order, to procure the “just, speedy and inexpensive determination
of every action and proceeding” (Fed. R. Civ. P. 1) courts may
consider whether an amendment fails as a matter of law to warrant
any relief. This is precisely what the Court is doing. This is
consistent with Third Circuit authority that provides that if an
amendment fails to state a claim upon which relief may be granted,
leave to amend may be denied as futile. See In re Burlington Coat
Factory

Secs.

Litig.,

114

F.3d

1410,

1434

(3d

Cir.

1997).

Additionally, Atlantic City neglects to recognize that the Court
has discretion under Fed. R. Civ. P. 14 to determine whether
joinder of a third-party defendant is appropriate. Spencer v.
Cannon Equip. Co., C.A. 07-2437 (JBS), 2009 WL 1883929, at *2
(D.N.J. June 29, 2009) (citing Remington Arms Co. v. Liberty Mut.
Ins. Co., 748 F. Supp. 1057, 1068 (D.Del. 1990)(“[J]oinder of
third-party defendants under Rule 14 is not automatic; rather, the
decision to permit joinder rests with the sound discretion of the
trial court.”) (citation omitted).
5

Further, even if plaintiff did not have standing to object
to Atlantic City’s motion the motion would still be denied.
Courts have the “inherent authority to dismiss claims sua sponte
for failure to state a claim upon which relief may be granted.”
Huafeng Xu v. Walsh, C.A. 13-5626 (ES/MAH), 2014 U.S. Dist.
LEXIS 123732, at *3-4 (citing Bintliff-Richie v. Am. Reinsurance
Co., 285 Fed. Appx. 940, 943 (3d Cir. 2008)(“The District Court
has the power to dismiss claims sua sponte under Rule
12(b)(6).”). Thus, since a Rule 12(b)(6) standard applies in
this context, the Court may address the futility of Atlantic
City’s rescue theory whether or not plaintiff has standing to
raise the argument.
2. Atlantic City’s Pleading 3

Atlantic City made the same mistake with regard to the
instant motion that defendants made when they filed their
initial motion to amend. That is, despite the fact that the
Court must review the proposed third-party complaint on a Fed.
R. Civ. P. 12(b)(6) standard, defendants insist on referring to
their alleged “record”, including deposition testimony, rather
than focusing on the allegations in the third-party complaint.
As noted on several occasions, the Court is limited to the
allegations in the proposed third-party complaint. See July 11,
2014 Order, at 8 (“As is clearly set forth in the applicable
case law, the Court’s analysis will be confined to what is in
the proposed third-party complaint, not arguments and citations
only included in defendant’s briefs [and oral argument].”).
Thus, although Cantera testified that he was turning away from
Officer Jones right before plaintiff was hit, and therefore
could not have been in danger requiring rescue (Cantera Dep.
T73:23-24), the Court will not consider that testimony in
support of this Order denying defendant’s motion. See Crozier v.
Johnson & Johnson Consumer Companies, Inc., 901 F. Supp. 2d 494,
500 (D.N.J. 2012) (declining to consider deposition testimony on
3

6

As the Court previously held, Atlantic City cannot join
Cantera unless they are joint tortfeasors. See June 2, 2014
Order, at 9-10. 4 In order to prove that Cantera and Atlantic City
are joint tortfeasors, Atlantic City now relies on the rescue
doctrine.
Under New Jersey law, the rescue doctrine creates a “duty
of care on the part of a person who through his own negligence
placed a third party in a situation of imminent peril that
invited the plaintiff rescuer to intervene.” Saltsman v. Corazo,
317 N.J. Super. 237, 247 (App. Div. 1998). The rescue doctrine
was created with two goals in mind: first, to prevent a rescuer
from being found contributorily negligent as a matter of law and
second, to create a duty of care on the part of the one whose

a 12(b)(6) motion because it was material extraneous to the
pleadings).
4

The Court previously stated:
Thus, in order to determine whether defendants and
Cantera are “joint” tortfeasors . . . the Court must
determine whether they are subject to common liability
to plaintiff at the time plaintiff’s cause of action
accrued. Stated differently, the Court must determine
whether Worster-Sims has an actionable claim against
Cantera under the theory that Cantera’s alleged
negligent and unlawful actions towards Officer Jones
were the proximate cause of Worster-Sims’s injuries.
Stated even more succinctly, Cantera cannot be liable
to Worster-Sims unless he owed Worster-Sims a duty of
care.

June 2, 2014 Order, at 9-10 (internal citation omitted).
7

negligence invited the rescuer to intervene. Saltsman, 317 N.J.
Super. at 247. In a common rescue doctrine scenario, the
“rescuer plaintiff sues the rescued victim who is either
completely, or partially, at fault for creating the peril that
invited the rescue.” Id. at 249.
Atlantic City’s third-party complaint against Cantera consists
of the following allegations:
3. On or about April 30, 2011, Third Party Defendant
Beau Cantera was a patron at Club Providence, located
in Atlantic City, New Jersey. He was attending a
bachelor party which lasted into the early morning
hours of May 1, 2011 and was accompanied by his
cousin, Plaintiff Jamie Worster-Sims.
4. After being advised by Club security to leave,
Third Party Defendant Beau Cantera refused to leave
the club.
5. Cantera was intoxicated and acting in a disorderly
and aggressive manner.
6. After Atlantic City Police Officer Michael Jones
arrived, Cantera and Sims began to leave to club.
While leaving, Canter made profane comments toward
Officer Jones.
7. One of the Comments was “f[---] these punk ass
cops”.
8. Officer Jones, along with bouncers from Club
Providence, followed Cantera and Sims outside the
Club.
9. Cantera raised his finger in a threatening manner,
pushed it into Officer Jones’ chest, and called
Officer Jones an [sic] “m f’er”.
10. By assaulting Officer Jones, Cantera instigated
and caused an altercation.

8

11. Officer Jones pushed Cantera away to create a safe
distance between them.
12. Plaintiff Sims immediately came to the aid/rescue
of his cousin, Cantera.
13. Prior to Cantera’s interaction with Officer Jones,
Plaintiff had no interaction with Officer Jones.
14. In coming the aid/rescue of his cousin, Plaintiff
Sims became involved in the altercation.
15. As a result of attempting to aid/rescue Cantera
from the altercation, Plaintiff Sims alleges to have
sustained injuries.
16. As a result of the alleged injuries, Plaintiff
Sims initiated a lawsuit against the City of Atlantic
City, Officer Michael Jones, and others.
17. Third Party Defendant Beau Cantera had a duty to
conduct himself in a reasonable manner and to refrain
from assaulting Atlantic City Police Officer(s) and/or
otherwise committing unlawful acts.
18. On the aforementioned date, Third Party Defendant
Beau Cantera breached that duty when he became
intoxicated and committed unlawful acts.
19. On the aforementioned date, Third Party Defendant
Beau Cantera instigated and initiated a physical
altercation when he assaulted Defendant Police Officer
Michael Jones.
. . .
23. But for the actions/conduct of Third Party
Defendant Beau Cantera, the physical altercation would
not have taken place, and Plaintiff Jamie
Worster[-]Sims would not have come to the rescue of
Cantera, and would not have brought claims against
Defendant City of Atlantic City.
Proposed Am. Compl. [Doc. No. 74-8]. Atlantic City’s theory that
the rescue doctrine applies because plaintiff attempted to

9

“aid/rescue” Cantera is futile because: (1) Atlantic City has
not plead a viable cause of action applying the rescue doctrine
and (2) even if the rescue doctrine was sufficiently plead, the
harm that came upon plaintiff was not foreseeable.
To sufficiently plead a cause of action under the rescue
doctrine, a plaintiff must allege there was imminent peril and
present danger compelling the need for intervention. See Flint
v. Langer Transp. Corp., 762 F. Supp. 2d 735 (D.N.J. 2011)
aff'd, 480 Fed. Appx. 149 (3d Cir. 2012) (the rescue doctrine
“allows a rescuer to bring suit against the party whose
negligence placed the victim in a position of imminent peril, so
as to invite the rescue”); see also Saltsman, 317 N.J. Super. at
247 (“The doctrine, in its traditional form, also created a duty
of care on the part of a person who through his own negligence
placed a third party in a situation of imminent peril that
invited the plaintiff rescuer to intervene.”). In Flint, the
defendant sought the plaintiff’s help transferring his load of
corrosive materials, improperly stored in his tanker, into
defendant’s tanker, which was properly equipped for the
material’s containment. Id. at 741. They waited some time before
making the transfer. Id. As a result, the court found that
summary judgment was appropriate and the application of the
rescue doctrine improper because “the situation was not so
immediate or perilous to require the sort of instantaneous
10

action found in rescue doctrine cases.” Id.; see also Connelly
v. Redman Dev. Corp., 533 P.2d 53, 55 (Colo. App. 1975)(rescue
doctrine did not apply as a matter of law when fallen individual
needed medical attention but was not in imminent peril); Ha-Sidi
by Ha-Sidi v. S. Country Cent. Sch. Dist., 148 A.D.2d 580 (N.Y.
App. Div. 1989) (fighting eighth grade boys were not at risk of
serious injury so their peril did not invite rescue).
Atlantic City’s proposed third-party complaint is futile
because it does not plead facts to show that Cantera was in
imminent peril and needed to be rescued. The pleading merely
avers that after Cantera assaulted Officer Jones, and the
officer pushed Cantera away, plaintiff immediately came to
Cantera’s aid. Proposed Am. Compl. ¶ 12. This is not enough to
apply the rescue doctrine because there is a complete absence of
any averments indicating that Cantera was in imminent peril.
Atlantic City pleads and argues that before plaintiff was hit
Cantera assaulted Officer Jones. Id. ¶ 9. After the assault,
plaintiff approached the officer and was punched in the face.
Compl. ¶ 35. It would be incongruous to hold that a person who
just assaulted a police officer needs to be rescued. If
anything, it was Officer Jones who needed to be rescued from
Cantera and not vice-versa. The rescue doctrine does not apply,
like in Flint, where the alleged negligent tortfeasor does not
create an imminent peril from which he needs to be rescued.
11

Related to the Court’s finding that Atlantic City failed to
plead that Cantera was in imminent peril, there are no
allegations in the pleading sufficient to show that Cantera was
in immediate danger requiring rescue. Other New Jersey cases in
which the court evaluated the applicability of the rescue
doctrine illustrate why the doctrine is inapplicable here. In
Saltsman, the court applied the rescue doctrine where the
plaintiff came to the aid of his friend who was being physically
assaulted by three other men. 317 N.J. Super. at 241. The court
found that the altercation “invited the rescue” and remanded the
matter for a jury determination as to whether the victim was
negligent in creating his peril. Id. at 249. In Eyrich for
Eyrich v. Dam, the court applied the rescue doctrine where the
plaintiff rescued a child from a circus leopard attack. 193 N.J.
Super. 244, 256 (App. Div. 1984). Additionally, in Burns v. Mkt.
Transition Facility of New Jersey, the rescue doctrine applied
where the plaintiff sustained injuries while rendering emergency
aid to a driver trapped in his crushed vehicle following a
collision in which the driver was hit then forced into oncoming
traffic. 281 N.J. Super. 304, 305 (App. Div. 1995). This case is
not remotely similar to Saltsman, Eyrich or Burns. As noted,
Cantera did not need to be rescued.
Turning to cases where the rescue doctrine was found
inapplicable, in Howard v. Holmes, the court found the rescue
12

doctrine did not apply where a neighbor asked the plaintiff to
help him remove a chainsaw which was turned off and lodged in a
tree. C.A. A-6452-08T3, 2011 WL 13833 (N.J. Super. Ct. App. Div.
Apr. 16, 2010). The court found because “immediacy [was] lacking
. . . [d]efendant’s request for help was not the ‘cry of
distress’ present in the cases where the courts have applied the
rescue doctrine.” Id. at *3. Similarly, in Estate of Desir ex
rel. Estiverne v. Vertus, the Supreme Court of New Jersey
declined to apply the rescue doctrine where a neighbor sought
out the plaintiff when he suspected something was awry in his
apartment. 214 N.J. 303 (2013). The neighbor went into the
defendant’s apartment to investigate and was killed by the
intruder inside. Id. The court found that no cause of action
existed because when the defendant reached the plaintiff’s
house, he had “reached a place of safety and [the plaintiff] did
not act in a way that would rescue [the defendant].” Id. at 321.
Here, it is plain that plaintiff’s actions are
distinguishable from the factual scenarios in Saltsman, Eyrich
and Burns where the rescue doctrine was applied. In Saltsman,
the plaintiff came to the aid of his friend who was in the
process of being assaulted by three other men. In Eyrich, the
plaintiff endeavored to save a child being attacked by a
leopard. In Burns, the plaintiff rescued a driver trapped in a
crushed vehicle following an accident in which the driver was
13

hit by oncoming traffic. In contrast, the averments in Atlantic
City’s pleading indicate that at the time plaintiff was punched
in the face by Officer Jones, there was nothing to rescue
Cantera from. Cantera simply did not need to be rescued.
Further, as in Howard, here, immediacy is lacking. Atlantic City
has not pleaded facts to show there was an immediate danger that
Cantera had to be rescued from. Moreover, as in Howard, there
was no “cry of distress”; rather, there are no allegations that
Cantera asked or motioned for assistance. Additionally,
analogous to Estate of Desir, Atlantic City has not described
any actions by plaintiff that were made in an effort to “rescue”
Cantera. At best, Atlantic City only offers a “formulaic
recitation of the elements of a cause of action” by making the
bare assertion that plaintiff came to Cantera’s rescue. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”) (citation omitted). In
short, simply because Atlantic City generally alleges plaintiff
went to rescue Cantera does not make it so. Plaintiff has not
pleaded supporting allegations to show that Cantera was in
danger and in immediate need of being rescued. See id.
3. Foreseeability

14

Additionally, even if the Court found that Atlantic City
sufficiently pleaded a cause of action under the rescue
doctrine, the Court would still find the claim futile. The harm
that came upon plaintiff was not foreseeable and, therefore,
Cantera owed no duty to plaintiff. Under New Jersey law,
“[w]hether a duty of care exists is a question of law that must
be decided by the court.” Jerkins ex rel. Jerkins v. Anderson,
191 N.J. 285, 294 (2007). “In making that determination, the
court must first consider the foreseeability of harm to a
potential plaintiff, and then analyze whether accepted fairness
and policy considerations support the imposition of a duty.” Id.
(citations omitted). In order for a harm to be foreseeable, the
risk of injury to another must be “within the range of
apprehension.” Sander v. HR Trust Servs., LLC, C.A. 08-1383
(GEB), 2009 WL 3055368, at *2 (D.N.J. Sept. 21, 2009) (citing
Jerkins, 191 N.J. at 294).
While foreseeability does not impose a duty on its own, it
is a “crucial element in determining whether imposition of a
duty on an alleged tortfeasor is appropriate.” Id. Where
foreseeability is established, “the question whether a duty
exists is one of fairness and policy that implicates many
factors, [including] the relationship of the parties, the nature
of the attendant risk, the opportunity and ability to exercise
care, and the public interest in the proposed solution.” Id. at
15

*2 (quoting Carvalho v. Toll Bros. & Developers, 143 N.J. 565,
573 (1996)). Additionally, “it is essential to recognize not the
interests of the particular individuals before the [c]ourt, but
instead to take careful consideration of the effect that the
creation of duty will have more generally on the public.” Estate
of Desir ex rel. Estiverne v. Vertus, 214 N.J. 303, 328 (2013).
Part of that inquiry involves the consideration of how that duty
“will work in practice.” Id.
As applied in the rescue doctrine context, “an actor is
liable for harm sustained by a rescuer ‘where the conduct of the
actor has created a danger only to himself, if at the time of
such conduct he should reasonably anticipate that others might
attempt to rescue him from his self-created peril, and sustain
harm in doing so.’” Estate of Desir, 214 N.J. at 321 (2013)
(citing Restatement (Second) of Torts § 445 comment d).
Nonetheless,
[W]hen the harm suffered by the rescuer is different
from the harms whose risks would be expected to arise
in the rescue, the actor is not liable because the
harm is outside the scope of liability. Thus, when an
unusual type of harm occurs in a rescue, the inquiry
is whether, at the outset of that particular rescue,
the risk of such harm would reasonably be anticipated.

Restatement (Third) of Torts: Liability for Physical Harm §
32(c) (2005). In other words, if the injury the rescuer suffered
could not be reasonably anticipated to arise from the rescue,

16

the rescued person is not liable to the rescuer. See also Ruiz
v. Mero, 189 N.J. 525, 529 (2007) (describing the importance of
foreseeability to the applicability of the rescue doctrine).
Other jurisdictions outside of New Jersey applying the rescue
doctrine have similarly focused on the importance of
foreseeability in determining whether a duty was owed. See,
e.g., Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 47 (2009)
(declining to apply the rescue doctrine because plaintiff cited
“no authority to support his claim that a collision between a
police cruiser and a vehicle unrelated to the accident to which
the officer in the cruiser was responding is a risk that would
be anticipated to arise from the rescue.”); Snellenberger v.
Rodriguez, 760 S.W.2d 237, 238 (Tex. 1988) ("The rescue doctrine
does not dispense with the requirement of foreseeability in
negligence causes of action.")
With these considerations in mind, the Court now turns to
Atlantic City’s proposed third-party complaint. Here, Cantera
poked Officer Jones in the chest and in response, the officer
punched plaintiff in the face. Atlantic City alleges in their
third-party complaint that “[i]t was foreseeable that if Beau
Cantera became intoxicated and instigated an altercation, that
his Cousin, Plaintiff Jamie Worster-Sims would come to his
rescue in attempt to aid his cousin.” Proposed Am. Compl. ¶ 27.
The Court disagrees.
17

The Court finds that as a matter of law the harm that came
upon plaintiff following Cantera’s actions were not foreseeable.
Looking at paragraphs 11-13 of the proposed third-party
complaint, it alleges that plaintiff immediately came to
Cantera’s rescue after Cantera assaulted Offices Jones and the
officer pushed Cantera away. Proposed Am. Compl. ¶¶ 11-13. The
Court finds that it was not foreseeable that plaintiff would
attempt to rescue Cantera after he assaulted a police officer.
Atlantic City does not allege in their proposed third-party
complaint that plaintiff in any way provoked Officer Jones or
was otherwise involved in the situation between Cantera and the
officer before being punched in the face. See Compl. ¶ 35.
Indeed, Atlantic City acknowledges that “[p]rior to Cantera’s
interaction with Officer Jones, Plaintiff had no interaction
with Officer Jones.” Proposed Am. Compl. ¶ 13. It is not
foreseeable that plaintiff would or could come to the rescue of
someone who assaulted a police officer. Further, it was not
foreseeable that Officer Jones would react by punching a third
person in the face. 5

5

The Court similarly explained in its June 2, 2014 Order:
The Court finds that it is not reasonable for Cantera
to foresee that if he poked Officer Jones, the Officer
would react by punching plaintiff in the face. In the
absence of a duty of care owed to Worster-Sims,
Cantera cannot be held liable for injuries WorsterSims sustained as a result of Officer Jones’s actions.
18

Additionally, as the Court previously stated, to impose a
duty in this situation would be counter to the public interest,
particularly based on the position of the parties. See Hopkins
v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993) (“The actual
imposition of a duty of care and the formulation of standards
defining such a duty derive from considerations of public policy
and fairness. . . . That inquiry involves identifying, weighing,
and balancing several factors - the relationship of the parties,
the nature of the attendant risk, the opportunity and ability to
exercise care, and the public interest in the proposed
solution.”) (internal citations omitted). To permit Atlantic
City to foist all or partial blame on Cantera because Officer
Jones punched plaintiff in the face would, in the Court’s view,
unreasonably stretch traditional tort notions of duty and
foreseeability. The Court has already denied Atlantic City’s
notion that its “but for” or “chain of events” theory is viable.

As noted, in determining whether a duty exists the
Court must examine fairness and public policy. The
Court is concerned with the potentially limitless
liability that could result if a person were under a
duty to foresee that his or her behavior would
ultimately lead a police officer to punch a thirdparty. Defendants’ “chain of events” theory of
liability could ensnare all sorts of people who have
no legitimate connection to plaintiff’s allegations
against Officer Jones[.]

June 2, 2014 Order, at 12-13 (internal citations omitted).
19

See June 2, 2014 Order, at 12-13. Even in the rescue doctrine
context the Court does not find a duty exists to “rescue”
someone who assaults a police officer. This duty would not “work
in practice.” Estate of Desir, 214 N.J. at 328. Further, the
Court notes that Atlantic City has not provided, and the Court
has not discovered, a single case applying the rescue doctrine
where the peril is alleged to stem from the tortious or
unconstitutional acts of a police officer. Thus, because the
actions of Officer were Jones were not foreseeable, and because
imposing a duty in this situation would be against public
policy, the Court declines to find the rescue doctrine
applicable.
The rescue doctrine does not apply merely because the
proposed amended complaint pleads that plaintiff was “coming to
the aid” of Cantera. Plainly stated, if Atlantic City has not
plead that Cantera was in imminent peril or danger, the Court is
at a loss what plaintiff allegedly rescued Cantera from or what
plaintiff endeavored to achieve in his efforts to “aid/rescue”
Cantera. The Court thus echoes the words of the New Jersey
Supreme Court: “the function of tort law is deterrence and
compensation, and absent circumstances in which the definition
of the duty can be applied both generally and justly, this Court
should stay its hand.” Estate of Desir, 214 N.J. at 329-30.

20

The Court has now permitted Atlantic City three
opportunities to plead a viable third-party complaint against
Cantera. Each of these attempts has failed. Thus, Atlantic
City’s motion is denied with prejudice. See Gunn v. First Am.
Fin. Corp., 549 Fed. Appx. 79, 81-82 (3d Cir. 2013) (denial
without leave to amend is justified where an amendment would be
futile).
Accordingly, and for all the foregoing reasons,
IT IS HEREBY ORDERED this 10th day of September, 2014, that
defendant’s Motion for Leave to Amend Pleading to Include a ThirdParty Complaint Against Beau Cantera [Doc. No. 74] is DENIED.

/s/ Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge

21