When a Rescuer Is Injured

If a person intervenes to protect another person from injury for which a defendant is liable, and the intervenor is injured, the defendant will be held responsible for the injury, under the legal principle called the “rescue doctrine.” The law recognizes that there exists a “human impulse to help others in need.” (Sears v. Morrison (1999) 76 Cal. App. 4th 577, 581.) If a defendant creates a situation wherein he or another person or a domestic animal is in danger or suffering, it is foreseeable that a rescuer might emerge and get injured. This doctrine holds the defendant legally liable for the payment of damages to the rescuer.

The doctrine was famously described this way in a 1921 New York court opinion, Wagner v. International Ry. Co. (1921) 232 NY 176, 180, by Justice Cardozo:

“Danger invites rescue. The cry of distress is the 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 effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid. … The railroad company whose train approaches without signal is a wrongdoer toward the traveler surprised between the rails, but a wrongdoer also to the bystander who drags him from the path. . . . The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.”

The rescue doctrine is set forth in case law and, in some states, the statutory law. See, for example, California Civil Code section 1714(a):

“Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the later has, willfully or by want of ordinary care, brought the injury upon himself.”

The rationalle for the rescue doctrine is that a person must be held accountable for all of the foreseeable consequences of his negligence. One such foreseeable consequence is injury to a rescuer. Because “[d]anger invites rescue,” as Justice Cardozo said, the original tortfeasor will be held liable for injuries and damages sustained by the rescuer, who will not be barred from recovery by the doctrines of provocation, assumption of the risk, comparative negligence or contributory negligence. “[A]lthough the rescuer may be said to have willingly exposed himself to the danger, such act does not eliminate or excuse the culpability created by the actor’s negligence.” (Sears v. Morrison (1999) 76 Cal. App. 4th 577, 581.)  As the Supreme Court of California has stated:

“One 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 [citations], 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 v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 536-537.)

Absent entirely reckless conduct, a rescuer is not deemed to have brought the injury upon himself under Civil Code section 1714. (Sears, supra, at page 581.) The defense of provocation is frequently attempted but is not applicable, and some jurisdictions specifically hold that an attempt to rescue cannot be considered a provocation. See, i.e., County of Sacramento Code of Ordinances, section 8.04.260 Vicious Animal: “For purposes of this section, provocation does not include the acts of a person attempting to prevent an animal from physically attacking, mauling, or physically injuring by biting another person or animal.”

The Restatement of Torts gives an example of a rescuer intervening to prevent injury to another person:

“A car negligently driven by A endangers B, a child in the highway. C, a bystander, dashes out to rescue the child, and is struck and injured by A’s car. A is subject to liability to C.” (Restatement Second, Torts (1965), Legal Cause, section 443, comment (d), illustration 4, page 474.)

The rescue doctrine also applies to a pet owner who is injured when he attempts to prevent a dog from attacking his pet. Pets often are considered to be property in the eyes of the law. The Restatement makes clear that the rescue doctrine applies not only to people, but to land and “chattels” — the legal word for property like pets:

“If the actor’s negligent conduct threatens harm to another’s person, land or chattels, the normal efforts of the other or a third person to avert the threatened harm are not a superseding cause of harm resulting from such efforts.” (Id., section 445, page 475.)

An interesting issue was addressed in the Sears case (supra). The negligent person caused a machine to fall on him. The rescuer attempted to get the machine off the negligent person so it would not suffocate him or otherwise injure him. The rescuer was injured by the machine. In prior cases, the doctrine was used under circumstances where the negligent person was not himself in any danger, but had created danger toward others. The legal issue addressed in Sears was whether the rescue doctrine applies to situations where the rescuer intervenes to save the negligent person. The Sears case holds that the rescue doctrine also applies to situations where the rescuer is attempting to save the negligent person.

Another approach to rescue is that the owner of the dog being attacked was justified in her actions because she had the duty to keep her own dog under control, and in carrying out that duty she should not be penalized. This was well articulated in the Delaware case, Duffy v. Gebhart, 157 A. 2d 585 (Delaware, 1960)

Defendant also maintains that in any case plaintiff was contributorily negligent in that she placed herself in a position of danger by trying to intervene in a fight which was taking place between her dog and defendant’s dog. I find that the evidence does not support this contention. Plaintiff’s dog was upon a leash, in reasonable compliance with the terms of 7 Delaware Code § 1702(b). When the attack occurred, plaintiff was very close to the attacking boxer. While attempting to keep her collie under reasonable control as required by law and to pull the collie away from the scene of the attack, plaintiff was injured by defendant’s boxer. It now appears that some other course on her part might have been wiser, but the course of action taken by her during the emergency was not an unreasonable one under all the circumstances.