June 2009 Archives

In Wagner v. International Railway, 232 N.Y. 176, 133 N.E. 437 (1921), the learned jurist Benjamin Cardozo first espoused that "danger invites rescue." Many state appellate courts have since followed this principle of law and hold that a rescuer who suffers injuries during an attempt to rescue a person who is placed in a position of peril as the result of the negligence of another may recover from that person all damages sustained during the rescue.

In addition, it is almost universally accepted in state and federal courts throughout the United States that one who witnesses a person in imminent or immediate peril though the negligence of another cannot be charged with contributory negligence as a matter of law, in risking his or her own life or serious injury, in attempt to effect a rescue, provided the rescue was not undertaken carelessly or recklessly. One exception to this general rule of recovery is that professional first responders such a firefighters and police officers may not recover for injuries sustained in the course of undertaking a rescue.

The person in need of rescue may also be held responsible in the event he or she negligently causes the need for their own rescue.

The attorneys at Belsky, Weinberg & Horowitz, LLC have successfully used the rescue doctrine to obtain settlements in a variety of cases. In one such case, a motorist negligently used his car jack to prop his vehicle up to perform certain repairs on the side of the highway. The jack collapsed, and the weight of the vehicle crushed the motorist. A bystander witnessed the event, and attempted, albeit futilely, to lift the vehicle off the motorist. As a result, the rescuer sustained multiple disc herniations and recovered a confidential settlement for injuries sustained during the rescue attempt. The motorist survived.

Many experienced lawyers are unaware of the "rescue doctrine" which is a long standing yet little used legal concept. For more information on this doctrine, the reader may wish to consider the following additional legal authorities:

White v. State, No. 1960, Md. Ct. Spec. Appeal (2008);

Flowers v. Rock Creek Terrace, 308 Md. 432 (1987);

Comment, Restitutionary Recovery for Rescuers of Human Life, 74 Cal. L. Rev. 85 (1986)

Terrence Kiley, Modern Tort Liability: Recovery in the '90s (1990).

On June, 12, 2009, Maryland's top court rendered a decision in Pittway Corporation, et al. and The Ryland Group v. Stephon Collins, et al., No. 128, September Term, 2007. See Maryland Judiciary Website at http://mdcourts.gov/opinions/coa/2009/128a07.pdf. The case is important for its discussion of the difference between what are known as "intervening" and "superceding" acts of negligence in cases involving multiple defendants where each acted negligently at different times but where there is only one injury. Determining the extent to which a defendant's acts are so far removed in time and place from subsequent acts of negligence by other defendants so as to relieve an earlier defendant of liability is a difficult task for any court or jury to determine. The instant case was no different in the degree of complexity of the legal analysis, yet it provides an excellent review of the different types of "causation" issues that a case like this presents and makes clear that trial court judges must usually consider the unique facts of the case before reaching decisions on intervening and superceding acts of negligence which may relieve early defendants of liability.

The case involves tragic facts. A home had been renovated by the owners who converted their basement into a medical office. No permits were pulled for the renovations and electrical work was performed. The home was originally built by Ryland Homes and was renovated by a number of subcontractors. The home was eventually rented out and the basement used for bedrooms. At the time of the original construction and subsequently during the basement renovations, substandard fire detectors were located in the basement with insufficient battery back up. A fire broke out in the home and the children of the renters and their friends were killed or seriously injured when a fire broke out. The plaintiffs alleged that a smoke detector with adequate battery back up would have saved the childrens' lives.

Suit was filed against a large number of defendants, including the manufacturers of the smoke detector and Ryan Homes, alleging negligence and product defects which resulted in the smoke alarm not working when it should have. The smoke alarm at the time was the one originally installed by Ryland during new home construction and was not changed by the renovating contractors and subcontractors during the basement renovations. The manufacturers argued successfully at trial that the failure of the contractors to install newer battery back up alarms were superceding acts of negligence as a matter of law relieving the manufacturers of liability, particularly since the alarms were in compliance with the building code in place at the time the home was built. The trial court agreed and dismissed the case as to the manufacturers and others, and relied upon the allegations contained within the complaint without considering other factual evidence. Thus, the court granted multiple motions to dismiss on the basis that the moving defendants were relieved of responsibility "as a matter of law" due to the superceding acts of the contractors in not removing and reinstalling more modern smoke detectors.

The Court of Appeals reversed the trial judge's decision, and determined that a trial court ordinarily may not rule on "causation" issues as a matter of law simply by considering the facts alleged in the lawsuit itself, and must consider other specific factual evidence developed during the discovery phase of the case. In the last footnote of the opinion, however, the court noted that upon remand to the trial court for further consideration of the specific facts surrounding the installation of the detector, the content of certain user manuals, and other factual evidence, the trial could find superceding acts of negligence by the renovating contractors that would justify dismissal of one or more of the moving defendants from the case.

The complexities of the court's opinion have been omitted and simplified here. Proximate cause is an essential element of every negligence action. Where more than one defendant is involved, the issue of whose acts and omissions "caused" injury are frequently disputed. The lawyers at Belsky, Weinberg & Horowitz keep abreast of the law and legal decisions from our state's courts. We understand the difficulties presented by issues of proximate cause and have dealt successfully with issues similar to those raised in the Pittway case. Please contact our litigation department should you have further questions about our practice areas or a potential claim you have.