J. Michael Conley
Wrongdoing which creates peril invites rescue and, should the rescuer be hurt in the process, the wrongdoer will be held liable not only to the primary victim, but to the rescuer as well. Hopkins v. Medeiros, 48 Mass. App. Ct. 600 (2000); Barnes v. Geiger, 15 Mass. App. 365, 366-367 (1983).
In abbreviated and somewhat elementary form, the rescue doctrine may be characterized as follows: negligence which creates peril invites rescue and should the rescuer be hurt in the process, the tortfeasor will be held liable not only to the primary victim, but to the rescuer as well. It was elegantly articulated by Chief Judge Cardoso in Wagner v. International Ry., 232 N.Y. 176, 180, 133 N.E. 437 (1920): "The cry of distress is a summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their efforts within the range of the natural and the probable. The wrong that imperils life is a wrong to the imperiled victim; it is wrong also to his rescuer."
Barnes v. Geiger, 15 Mass. App. 365, 366-367, 446 N.E.2d 78 (1983).
The Restatement (Second) Torts recognized this principle as it applies to questions of duty, Restatement (Second) Torts, §§281, 290, and as it applies to proximate cause, Restatement (Second) Torts, §§443, 445.
Massachusetts Courts have long recognized Restatement (Second) Torts §443 and 445, see Edgarton v. H. P. Welch Company, 321 Mass. 603 (1947), and have repeatedly decided in accordance with the dictates of these Sections. Rollins v. Boston and M.R.R., 321 Mass. 586 (1947) (death in fire while trying to safeguard property threatened by fire); Burnett v. Connor, 299 Mass. (1938) (attempt to stop car rolling due to faulty brake); Burns v. Berkshire St. Ry., 281 Mass. 47 (1932) (plaintiff injured assisting friend in moving automobile stalled on street car tracks when street car collided with automobile); Dixon v. New York, New Haven and H.R.R., 207 Mass. 126 (1910) (injury restraining horses negligently frightened by railroad). Although much of the early Massachusetts case law uses the rescue doctrine to neutralize the defense of contributory negligence, the principle is not limited to that context. Barnes v. Geiger, 15 Mass. App. at 368. Nor does the applicable analysis differ significantly when focusing on the question of duty as opposed to the question of proximate cause. See Whittaker v. Saraceno, 418 Mass. 196, 198-199 (1994) (As a practical matter, in deciding the foreseeability question, it seems not important whether one defines a duty as limited to guarding against reasonably foreseeable harm or whether one defines the necessary causal connection between a breach of duty and some harm as one in which the harm was a reasonably foreseeable consequence of the breach of a duty).
Conceptually, the rescue doctrine is actually not a doctrine at all. Rather, it encompasses a variety of consequences flowing from legal recognition that actions to protect persons, property or public safety endangered by tortious activity are normal, reasonable and desirable. See Lowney v. Horvath, 689, S.W.2d, 625 (Mo. 1985)(No. 66277); Barnes v. Geiger, supra; D'Angeli's Case, 369 Mass. 812 (1976). "The "rescue doctrine" addresses a mélange of issues that arise when a rescuer is injured in attempting to assist another. These issues include duty, scope of liability, superseding cause, contributory negligence, and assumption of risk." Restatement Third Torts § 32 , comment b. (PFD-1 2005). Accordingly, it is important to focus on foreseeable and to avoid becoming doctrinaire in analysis of rescue cases.
Restatement Third Torts § 32 (PFD-1 2005) formulates the concept as follows:
[I]f an actor's tortious conduct imperils another or the property of another, the scope of the actor's liability includes any physical harm to a person resulting from that person's efforts to aid or protect the imperiled person or property, so long as the harm arises from a risk that inheres in the effort to provide aid.
The Restatement Third purports to slightly broaden liability. "The first and Second Restatements of Torts contain a provision that a rescuer's "normal efforts" to rescue another are not a superseding cause of harm to the rescuer in § 445. This Section continues § 445 and expands it by negating both superseding cause and proximate cause as barriers to recovery and also eliminating the "normal efforts" qualification. Id. comment a.
The leading Massachusetts rescue case is Hopkins v. Medeiros, 48 Mass. App. Ct. 600 (2000). A police officer injured while attempting to subdue a melee filed suit for negligence and for wanton and reckless conduct against an individual who allegedly instigated the melee but who had no direct interaction with the injured officer. The Appeals Court ruled in favor of the injured officer, deciding that the liability of the defendant was an issue for the jury to determine with the benefit of a charge on the rescue doctrine. The Hopkins Court elaborated on the application of the doctrine.
" 'Rescue' as used in ordinary parlance means 'to free from ... danger.' " Campbell v. Schwartz, 47 Mass.App.Ct. 360, 364 (1999), quoting from Webster's Third New Intl. Dictionary 1930 (1993). "Danger is defined as 'the state of being exposed to harm.' " Campbell v. Schwartz, supra. To be considered a rescuer, an individual must engage in a proactive attempt to free another from danger. "[A] claimant's purpose must be more than investigatory. There must be asserted some specific mission of assistance by which the plight of the imperilled could reasonably be thought to be ameliorated." Barnes v. Geiger, 15 Mass.App.Ct. at 371.
In addition, such rescue missions must be voluntary. "[I]nclusion within [the class of rescuers] is by virtue of a volunteered action by the putative claimant." Migliori v. Airborne Freight Corp., 426 Mass. at 637, 690 N.E.2d 413. However, the notion of "voluntary" does not preclude claimants who have arrived at the rescue scene as a result of their employment.
The Court ruled that Officer Hopkins qualified as a rescuer because he was present at the melee because of a fellow officers' emergency call, his employment brought him to the scene where he engaged in proactive attempts to assist the other officers who were faced with a dangerous situation, and he was injured during the rescue attempt.
A common thread runs through the cases which recognize the rescue doctrine, and that is some act of intervention, e.g., moving a vehicle, searching for a missing person, attempting to restrain a horse, running into a burning building, flagging down traffic, administering first aid, moving a burning barrel, or jumping into a swimming pool. Barnes v. Geiger, 15 Mass. App. Ct. 365, 369, 446 N.E.2d 78 (1983). The injury must occur during or close in time to the rescue. See Toney v. Zaryneff's Inc., 52 Mass.App.Ct. 554, 564-565 (2001).
Recently, the Supreme Judicial Court ruled that a police officer's traffic accident while en route to an accident scene was too remote to apply rescue principles.
[N]ot all injuries to rescuers are within the scope of foreseeable risk: liability does not attach for injuries suffered as a result of "risks that would not be anticipated to arise from the rescue." Restatement (Third) of Torts, supra at § 32 comment c, at 653. Leavitt cites 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. We decline to extend the rescue doctrine to encompass such a risk.
Leavitt v. Brockton Hospital, Inc., 454 Mass. 37 (2009). Significantly, the Leavitt Court referenced with apparent approval Restatement Third Torts, Section 32.
The Appeals Court's decision in Toney v. Zaryneff's Inc., 52 Mass.App.Ct. 554, 564-565 (2001) could be read to preclude operation of the rescue doctrine where the person being rescued is the person at fault for creating the danger to himself. See id. ("As requested, it would ordinarily contemplate three entities: a tortfeasor, victim, and rescuer. Here the requested instruction was inapplicable because the alleged tortfeasor and victim ... were one and the same, and the injury ... did not occur during the rescue."). However, the Restatement Third suggests that that the rescue doctrine applies even when the rescuer attempts to aid the actor who created the need for a rescue. Restatement Third Torts § 32 , comment b. and illustration 2 (PFD-1 2005). This is consistent with Restatement (Second) of Torts § 445, Comment d, 472 (1965) (rescue rules apply "equally 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"). See Strickland v. Kotecki, 2009 WL 2163467 (Ill.App. 3 Dist 2009), and cases cited ("Every court reaching the issue has held that the rescue doctrine allows a rescuer to recover from defendants who place themselves in danger.").
In Bertocci v. Indoor Sports Management, Inc., 14 Mass.L.Rptr. 12 (2001), Superior Court Justice Agnes relied on the rescue doctrine to deny summary judgment where a Plaintiff claimed that she was hit by a bat when she entered a batting cage to remove her son from harm's way because the defendant failed to provide him with a helmet. Jury issues included whether there existed a peril inviting rescue, whether rescue was the plaintiff's motive for entering the cage, and the reasonableness of the plaintiff's conduct in the circumstances.
Perhaps the most common application of the rescue doctrine is involves injuries to persons assisting with traffic hazards, disabled vehicles or in the aftermath of car accidents. See, e.g. Burnett v. Connor, 299 Mass. (1938) (attempt to stop car rolling due to faulty brake); Burns v. Berkshire St. Ry., 281 Mass. 47 (1932) (plaintiff injured assisting friend in moving automobile stalled on street car tracks when street car collided with automobile); Yurecka v. Zappala, 472 F.3d 59 (3d Cir. 2006) (applying Pennsylvania law, plaintiff's vehicle struck while rendering roadside assistance to accident victims); Marshall v. Nugent, 222 F.2d 604 (1st Cir. 1955) (applying New Hampshire law plaintiff struck by car while warning traffic of obstruction caused by accident); Scott v. Texaco, Inc., 48 Cal. Rptr. 785, 239 Cal.App.2d 431, 48 Cal.Rptr. 785 (1966) (plaintiff who was struck by oil company's truck as she stood in highway to warn overtaking vehicles of overturned vehicle ahead); Newsome v. St. Paul Fire & Marine Ins. Co., 350 So.2d 825 (Fla. App. 1977) (plaintiff struck by car while pushing defendant's disabled vehicle), Hale v. Burgess, 478 S.W. 2d 856 (Tex. Civ. App. 1972) (police officer struck by vehicle while directing traffic around two-car wreck caused by defendant); Henneman v. McCalla, 260 Iowa 60 (1967) (proximate cause of death of decedent who had gone to render aid to defendant pickup truck driver, whose negligence had caused an accident which resulted in pickup truck being in a precarious position on highway, and who was killed when defendant intoxicated motorist's automobile struck truck was properly for the jury).
In D'Angeli's Case, 369 Mass. 812 (1976) in the context of a worker's compensation dispute, the Supreme Judicial Court recognized that the rationale of the rescue doctrine is not limited to the rescue of identifiable persons in imminent danger of harm, but extends also to emergency assistance of law enforcement officials in effecting an arrest of a criminal, as well as efforts to "alleviate an immediate danger to the public safety." The D'Angeli Court held to be injured in the course of his employment a worker who, while driving for his employer, stopped his automobile and walked onto the road to remove a large coil of wire from the roadway and was struck by another automobile. Basing its analysis on foreseeability, the Supreme Judicial Court found that an employee's efforts to protect public safety by eliminating a dangerous condition on the highway stood on the same footing as reasonable rescue efforts or pursuits in connection with the making of arrests as being causally related to the employee's employment. Id. See also See Commonwealth v. Berggren, 398 Mass. 338, 341-342 (1986)(proximate cause analysis; speeding motorist may be criminally responsible for a police officer's death in single vehicle accident while in pursuit of speeding motorist' officer duty-bound to pursue speeder.)
Such cases are closely related to the secondary collision cases in which a defendant, whose negligence caused a traffic tie-up, may be liable for subsequent property damage or personal injuries more immediately caused by an oncoming motorist. Marshall v. Nugent, 222 F.2d 604, 612-13 (1st Cir. 1955),
[W]ith respect to a subsequent collision caused by later-arriving traffic, a duty or a causal connection may nonetheless be established either on a theory of Burke v. Hodge, 217 Mass. 182, that the negligence of the initial wrongdoer remained a dangerous force until the negligence of the later wrongdoer concurred and combined with it to cause injury, or on the theory of Lane v. Atlantic Works, 111 Mass. 136, restated in Horan v. Inhabitants of Watertown, 217 Mass. 185, that the earlier wrongdoer ought to have foreseen that his negligence would be followed by negligence of another resulting in injury, and consequently that in law the act of that other is the act of the original wrongdoer because it is the natural and probable consequence of his wrongdoing.
Morrison v. Medaglia, 287 Mass. 46 (1934). "In a traffic mix-up due to negligence, before the disturbed waters have become placid and normal again, the unfolding of events between the culpable act and the plaintiff's eventual injury may be bizarre indeed; yet the defendant may be liable for the result." Marshall v. Nugent, 222 F.2d 604, 611 (1st Cir. 1955). In such cases, the operation of the rescue doctrine establishes that persons responding to an accident are foreseeably exposed to risks at the accident scene just as would be a person so exposed by virtue of having been in a vehicle disabled by the accident.
Superior Court Justice Macdonald adapted the Hopkins decision to an understandable jury charge in a case in which a police officer was struck by a hit-and-run motorist while assisting at the scene of an accident caused by the defendant:
"Now, in the case before you these principles of substantial causation, superceding cause and foreseeablity come into direct play here because of what is referred to as the "rescue doctrine". The rescue doctrine has been defined by our Appeals Court in these terms:
"'Negligence which creates peril invites rescue and, should the rescuer be hurt in the process, the [originally negligent person] will be held liable not only to the primary victim, but to the rescuer [who has been injured in the course of rescue] as well....
" 'Rescue as used in ordinary parlance means to "free from...danger.' Danger is defined as the 'state of being exposed to harm.' To be considered a rescuer, an individual must engage in a proactive attempt to free another from danger. 'A [rescuer who has been injured's purpose must be more than investigatory. There must be asserted some specific mission of assistance by which the plight of the [person or persons] imperiled could reasonably be thought to be ameliorated.'
"This doctrine arises from the law's recognition that within the class of foreseeable plaintiffs persons are those who intervene in response to danger created by a person's negligent conduct. That is because it is reasonable to expect that people will bring themselves within the reach of the harmful effect of the danger in an effort to protect themselves or others from it.
"As you know, it is the plaintiff's theory that although Defendant did not directly cause his injury, the Defendant by her negligence set into motion a situation where people were in danger and that he responded to that danger as part of his duty as a police officer. The people who, at the outset, were allegedly in danger were the defendant herself and Mr. Loring, the driver of the other car. It was in response to their presumed needs that the plaintiff and Officer Silva were dispatched to the scene. In being so dispatched, the plaintiff submits that he was there to control the scene, get medical care to people in need and to make safe the roadway by clearing it of debris and of potentially obstructing vehicles. And the plaintiff's theory is that he was in the midst of doing that when he was struck by the hit and run driver and injured.
"Now it is for you to decide whether the plaintiff at the time of his injury was engaged in an act of rescue in response to danger negligently caused by the defendant so as to make the her liable for the injury directly caused by the hit and run driver. In doing so, you are to weigh the nature, if any, of the risk created by the Defendant, the nature of what the Plaintiff was doing at the time he was injured and the relationship in time between both.
"Among the factors you may consider in making this judgment are the following:
- Whether a reasonable person in the defendant's circumstances would have foreseen that if she negligently operated her motor vehicle and caused a crash that public safety personnel would be dispatched to the scene to rescue those in need?
- Were the conditions that gave rise to the perception of danger and the need for "rescue" still present at the time of the Plaintiff's accident or had they passed?
- Was the injury to the plaintiff remote in time or effect such that its connection to the original negligence of the plaintiff was "so slight or tangential to the harm caused that, even when combined with other factors, it could not reasonably be said to have contributed to the result"?
- Was the plaintiff at the time of the accident engaged in a "mission of assistance" or was he engaged in other routine investigatory or traffic control conduct unrelated to the existence of a continuing dangerous condition originally caused by the Defendant?
"It is for you to decide whether the plaintiff has proved by a preponderance of the evidence that the defendant negligently created a situation that invited rescue and that the plaintiff was injured as he was actively engaged in an attempt to address the needs of persons whose wellbeing was at risk because of the continuing danger caused by the defendant's negligence."
