CACI 453 Injury Incurred in Course of Rescue

New September 2003; Revised December 2011

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This instruction sets forth the rescue doctrine. As originally developed, the doctrine established a duty of care toward the rescuer and was also the rescuer’s response to the affirmative defense of contributory negligence when contributory negligence was a complete bar to recovery. (See Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361, 368 [99 Cal.Rptr. 29, 491 P.2d 821].) Today it may be asserted in much the same way as a response to a claim for comparative fault. (See Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 536–537 [34 Cal.Rptr.2d 630, 882 P.2d 347] [rescue doctrine discussed in case decided after contributory negligence was no longer a complete bar].)

The doctrine does not apply if the plaintiff acted rashly or recklessly in attempting the rescue. The defendant has the burden of proving rash or reckless conduct. (Solgaard, supra, 6 Cal.3d at p. 368.)

One older case has held that the doctrine can apply to a defendant other than one who created the emergency if the defendant negligently increased the plaintiff’s peril. (See Scott v. Texaco, Inc. (1966) 239 Cal.App.2d 431, 435–436 [48 Cal.Rptr.785] [defendant’s vehicle negligently struck plaintiff while she was trying to stop traffic because of an accident up ahead].) Subsequently, the California Supreme Court stated the doctrine as a right to recover from the person whose negligence created the peril. (Solgaard, supra, 6 Cal.3d at p. 368, emphasis added.) However, the negligence of someone other than the one who created the emergency was not at issue in the case, so it is not clear that the court’s language would foreclose such a claim. To use this instruction for such a case, select “a danger to [name of plaintiff]” in element 2. Also omit the bracketed material in the opening sentence.

•“The cases have developed the rule that persons injured in the course of undertaking a necessary rescue may, absent rash or reckless conduct on their part, recover from the person whose negligence created the peril which necessitated the rescue. [¶] Although its precise limits are not yet fully developed, the rescue doctrine varies the ordinary rules of negligence in two important respects: (1) it permits the rescuer to sue on the basis of defendant’s initial negligence toward the party rescued, without the necessity of proving negligence toward the rescuer, and (2) it substantially restricts the availability of the defense of contributory negligence by requiring defendant to prove that the rescuer acted rashly or recklessly under the circumstances.” (Solgaard, supra, 6 Cal.3d at p. 368, footnote omitted.)

•“The rescue doctrine contemplates a voluntary act by one who, in an emergency and prompted by spontaneous human motive to save human life, attempts a rescue that he had no duty to attempt by virtue of a legal obligation or duty fastened on him by his employment.” (Bryant v. Glastetter (1995) 32 Cal.App.4th 770, 784 [38 Cal.Rptr.2d 291].)

•“[T]he rescue doctrine arose in an era of contributory negligence, where any negligence on the part of a plaintiff barred the action. ‘The purpose of the rescue doctrine when it was first created was to avoid having a plaintiff be found contributorily negligent as a matter of law when he voluntarily placed himself in a perilous position to prevent another person from suffering serious injury or death, the courts often stating that the plaintiff’s recovery should not be barred unless his rescue attempt was recklessly or rashly made.’ Most defendants could point to some negligence by the rescuer and simply approaching the danger could be construed as negligent, or as an assumption of the risk. This advanced no tenable public policy: It deterred rescues and ran counter to the human impulse to help others in need. Accordingly, the courts ruled the act of approaching danger did not interrupt the normal causal reach of tort liability and did not, of itself, establish contributory negligence.” (Sears v. Morrison (1999) 76 Cal.App.4th 577, 581 [90 Cal.Rptr.2d 528], internal citations omitted.)

•“In order to assert the rescue doctrine, the rescuer must show that there was someone in peril and that he acted to rescue such person from the peril.” (Tucker v. CBS Radio Stations, Inc. (2011) 194 Cal.App.4th 1246, 1252 [124 Cal.Rptr.3d 245].)

•“The evidence in the instant case was uncontradicted that defendant’s employees … were in peril of their lives, that immediate action was required to save or assist them, that plaintiff undertook to rescue them, and that he was injured while in the course of doing so. It is apparent, therefore, that plaintiff was, as a matter of law, a rescuer and entitled to the benefits of the rescuer doctrine, including an instruction to the jury that as a rescuer, plaintiff could recover on the basis of defendant’s negligence to [its employees], if plaintiff’s injury was a proximate result thereof, and if plaintiff acted neither rashly nor recklessly under the circumstances.” (Solgaard, supra, 6 Cal.3d at p. 369.)

•“One also generally owes a duty of care to bystanders who attempt a rescue that becomes necessary due to one’s own negligence. Thus, although it is contributory negligence unreasonably to expose oneself to a risk created by the defendant’s negligence, a person is not contributorily negligent who, with due care, encounters the risk created by the defendant’s negligence in order to perform a rescue necessitated by that negligence.” (Neighbarger, supra, 8 Cal.4th at pp. 536–537, internal citation omitted.)

•“We do not accept this narrow view of the rescue rule, which would focus attention on the person creating the original danger and not on the person of the rescuer. We think the force of the rule should properly be centered on the rescuer, for it is the quality of his conduct which is being weighed. Whether he was induced to enter a position of danger as a result of the act of a particular defendant or as a result of some outside force is inconsequential to the process of evaluating the quality of his behavior.” (Scott, supra, 239 Cal.App.2d at pp. 435–436.)

•“[Plaintiff] asserts that he should not have been required to show that respondents’ negligence threatened real and imminent harm to himself or others, but only that he reasonably perceived the appearance of such danger … . We agree.” (Harris v. Oaks Shopping Ctr. (1999) 70 Cal.App.4th 206, 210 [82 Cal.Rptr.2d 523].)

•“Under the rescue doctrine, an actor is usually liable for injuries sustained by a rescuer attempting to help another person placed in danger by the actor’s negligent conduct. The question here is whether an actor is liable for injuries sustained by a person who is trying to rescue the actor from his own negligence. The answer is yes.” (Sears, supra, 76 Cal.App.4th at p. 579, original italics.)

•“In general, the rescue doctrine permits a rescuer to recover for injuries sustained while attempting to rescue a party placed in danger by the defendant’s conduct. In this case we conclude that the rescuer cannot maintain negligence claims against defendant because he failed to establish that a duty of care was owed to the rescued party.” (Tucker, supra, 194 Cal.App.4th at p. 1248.)

•“There is some disagreement among the authorities where the danger is only to property. In Henshaw v. Belyea (1934) 220 C. 458, 31 P.2d 348, plaintiff ran from a safe place on the sidewalk in an attempt to save his employer’s truck from slipping downhill by placing a block under a wheel, and his foot was crushed. The court approved the extension of the rescue doctrine to such a case. (220 C. 463.) (See 23 Cal. L. Rev. 110; 8 So. Cal. L. Rev. 159.)” (6 Witkin Summary of California Law (10th ed. 2005) Torts, § 1308.)