The Rescue Doctrine, 1121 COBJ, Vol. 50, No. 10 Pg. 26

PositionVol. 50, 10 [Page 26]

50 Colo.Law. 26

The Rescue Doctrine

No. Vol. 50, No. 10 [Page 26]

Colorado Lawyer

November, 2021



This article explores the rescue doctrine's history and its application in Colorado and other jurisdictions.

The rescue doctrine authorizes aper-son injured while rescuing another to bring a negligence claim against the party whose conduct created the need for rescue.1 Though well-developed nationally, the doctrine was minimally developed in Colorado until the Colorado Supreme Court's recent opinion in Garcia v. Colorado Cab Co., where the Court held that physical intervention is not necessary to qualify as a rescuer under the rescue doctrine.[2] This holding is consistent with rulings nationwide that seek to ensure that persons attempting to help someone in a genuine emergency can recover for injuries incurred during the rescue.

This article discusses the development and current state of the rescue doctrine in Colorado.

History of the Rescue Doctrine

The rescue doctrine derives from public policy that seeks to encourage rescue. Across the nation, a majority of courts have recognized that rescue is a human instinct that should be encouraged. As a result, rescuers may recover damages for injuries suffered while placing themselves in danger to undertake a rescue.3

The seminal rescue doctrine case, Wagner v. International Railway Co., was decided in 1921 by then-judge Cardozo.4 In Wagner, plaintiff and his cousin boarded a rail car operated by defendant. The conductor's failure to close the train doors caused plaintiff's cousin to be thrown from the train as it turned a curve on a bridge. Plaintiff then exited the train to search for his cousin. He walked along the trestle for 445 feet to the bridge, lost his footing in the dark, and was injured when he fell off the bridge. The New York Court of Appeals recognized die applicability of the rescue doctrine, noting iat "danger invites rescue" and reasoned that the wrong that endangered the victim also constituted a wrong to the rescuer.5 Although the court recognized the rescue doctrine, it remanded the case for a new trial to determine whether plaintiff's conduct was in response to an emergency and was reasonable.6

In the century since Wagner was decided, courts have widely held that the rescue doctrine supports a rescuer's recovery from the person or entity that placed both the party needing rescue and the rescuer in danger. The widespread acceptance of die doctrine is illustrated by its inclusion in die Restatement (Third) of Torts, which provides:

[I]f an actor's tortious conduct imperils another or die property of another, die scope of die actor's liability includes any harm to a person resulting from that person's efforts to aid or to protect die imperiled person or property, so long as die harm arises from a risk that inheres in die effort to provide aid.[7]

The Rescue Doctrine in Colorado

Historically, few Colorado courts analyzed or developed the rescue doctrine. The first Colorado case to discuss die rescue doctrine was Maloney v. Jussel.8 In Maloney, plaintiff was hit by a car and injured while standing next to a driver who had just been in a car accident. The Colorado Supreme Court held that die rescue doctrine did not apply because there was no "imminent peril" when plaintiff was injured, so plaintiff was not a rescuer.9

Similarly, in Connelly v. Redman Development Corp., plaintiff fell and was injured while approaching a woman and a crying baby lying in a parking lot.10 The trial court held that die rescue doctrine did not apply because plaintiff failed to prove that die woman and baby were "in imminent peril, requiring immediate action to avoid physical harm."11 The Colorado Court of Appeals affirmed, explaining that die woman and baby may have needed assistance, but there was no evidence of imminent peril justifying an immediate rescue.12

In addition to rescuers of persons, courts have applied the rescue doctrine to rescuers of property. In Estate of Newton v. McNew, defendant started a fire to burn trash and then left the fire site.13 Neighborhood children began playing with the fire and caused a fire on a neighboring property. Plaintiff, who lived near die neighboring property, assisted die fire department in putting out the fire and shortly thereafter suffered a heart attack and died. Plaintiff's estate brought a wrongful death action against defendant, who contended he did not owe plaintiff a duty of care because plaintiff acted as a rescuer of property rather than of a person in imminent peril. The Colorado Court of Appeals held that the rescue doctrine applies to rescuers of persons and rescuers of property.14 But in light of Garcia, it is now unclear whether Newton's holding is still good law.15

In Garcia, die Colorado Supreme Court considered and clarified die rescue doctrine's application in Colorado.16 There, plaintiff saw a taxi driver being physically assaulted by his passenger. Plaintiff approached die cab to help die driver by sticking his head into die cab and yelling at die passenger to stop. This gave die driver an opportunity to exit the vehicle. The passenger then commandeered die taxi and used it to run over plaintiff, causing plaintiff severe injuries. Plaintiff filed an action against the cab company alleging that it was liable for his injuries because it had knowledge of prior attacks on its drivers and failed to implement safety measures. At trial, the jury found for plaintiff and awarded him $ 1.6 million in total damages, with 45% fault allocated to defendant and 55% to the passenger. However, the Colorado Court of Appeals reversed, holding that the cab company did not owe a duty to plaintiff as a rescuer because "to be deemed a rescuer, the plaintiff must have taken some concrete physical action—that is, some bodily movement and effort—to save another person from imminent peril." 17 According to the Court, plaintiff's efforts failed to meet this standard because there was no evidence that he "attempted to physically intervene; he didn't, for example, get between the two men or try to pull one away from the other."18

The Supreme Court reversed, finding that the physicality requirement improperly narrowed die rescue doctrine and that the rescue doctrine "does not require that a person exert physical action to qualify as a rescuer."19 The Court reasoned that under the Court of Appeals holding, a plaintiff who threw a punch at an attacker could qualify as a rescuer, but a plaintiff who approached die attacker and told him to stop could not, despite the fact that both rescuers put diemselves in harm's way to stop die violence and prevent die injury.20 Radier, to qualify as a rescuer under die rescue doctrine, a plaintiff must have (1) intended to aid or rescue a person, (2) reasonably believed that die person was in imminent peril, and (3) acted in such a way that could have reasonably succeeded or succeeded in preventing or alleviating such peril.21

Regarding die intent to aid or rescue element, die Court reasoned that die rescue doctrine "seeks to protect only those who genuinely act on die instinct to help" as opposed to merely investigating die scene of an accident[22] As to die reasonable belief of imminent peril, die Court explained that the doctrine must be based on die rescuer's reasonable belief that someone is in imminent peril, though it is not necessary that die person actually be in imminent peril.23 Regarding whether the rescuer could have succeeded or actually succeeded in die rescue, die Court noted that the rescue attempt must "stand a chance at substantially helping the person(s) in peril" and a "mere warning or observation" is not sufficient.24 In so holding, die Court noted that the doctrine "is one way the law acknowledges die human instinct to help those in need, even at the risk of one's own safety"25 and that the "doctrine seeks...

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