Liability of Search and Rescuers - Part 3

SARBC

Search and Rescue Society of British Columbia

The hurdles that appeared to be insurmountable to the British because their reluctance to discard the safety and restrictiveness of the old maxims were quickly overcome by the Americans. The British system, on the other hand, was far more reluctant to discard the protection of the voluntary assumption of risk and new intervening action defences which had been the basis of legal decisions for decades.

This is clearly demonstrated by the fact that the British lagged the United States by about forty years with regard to compensating the good Samaritan rescuer.

As noted, the American courts treat the "negligent wrongdoer as though he had foreseen the coming of the rescuer⁴⁵ and have thus avoided the pitfalls the English encountered when dealing with foreseeability. Further, the American courts have avoided relying on a derivative approach to compensate the rescuer. In other words, the courts do not find it necessary for there to be a duty owed to the rescued party by a defendant for the rescuer to be in a position to recover. "The right of the rescuer is an independent right, not derived from that of the rescued party.⁴⁶

In the case of Pittsburgh Railway vs. Lynch⁴⁷, the American court dealt with the situation of a contributorily negligent rescued party and its effect on the claim by the rescuer. In this case, Lynch observed a woman on the railway tracks apparently unaware of the approach of a caboose; and as he believed, in danger of being run down by it. He tried to warn her but could not get her attention. He then hastened to her rescue and pushed her from the track seriously injuring himself. It was contended by the defendant that the rescuer could not recover for the injury to himself if the person rescued was in peril because of such contributory negligence on her part as would have prevented a recovery by her if she had been injured. The court held that "the rescuers cause of action is not affected by the contributory negligence of the rescued party.⁴⁸

The above decision was subsequently upheld in the case of Highland vs. Wilsonian Inv. Co.⁴⁹. In this case, through the negligence of the defendant, ammonia fumes were released into the bakery. Mrs. Highland, thinking Mrs. Damon (the rescued party) was in danger went to the bakery to see if she was alright. To escape the fumes, the two women stepped on to the marquise. Mrs. Highland fell and was injured. The defendant asserted, that since the the woman had escaped from the fume-laden air of the bakery, and had reached a place of safety, the proximate and intervening cause of the injuries was Mrs. Damon's return to the bakery. It was also asserted that following her for the purpose of rescue was contributory negligence on the part of Mrs. Highland. The court held that even if there was negligence on the part of Mrs. Damon, this negligence "cannot be imputed to Mrs. Highland.⁵⁰ Moreover, there is no need for the rescue attempt to be instinctive. "The law does not discriminate between the rescuer oblivious to peril, and the one who counts the cost. It is enough that the act, whether impulsive or deliberate, is the child of the occasion.⁵¹ So long as the requirements of a reasonable belief in a situation of peril and a reasonable rescue attempt in the circumstances are present, the courts will reject the voluntary assumption of risk defence and allow the rescuer to recover regardless of there being no legal duty following to the person in peril.

The duty owed to the rescuer by the defendant evolves from the reasoning shown in the Wagner⁵² decision. Namely, that the defendant's act was a wrong to the rescuer because the wrongdoer ought reasonably to have foreseen that his act would cause the rescuer to take the risk of a rescue attempt. Although both the American and the English courts systems reject the derivative approach, the American courts were some fifty-five years ahead of the British courts in coming to the conclusion that the derivative approach was unjust when dealing with the rescue cases. Only those situations that would lend themselves to the derivative approach initially relied on by the courts, would be those where the defendant imperilled the rescued party.

One area where there is a marked difference between the stance taken in the United States and the British courts is in the area referred to as the "professional rescuer" cases. While in England, the presence of a duty to rescue has gone to rebut the voluntary assumption of risk defence, the same cannot be said in the United States. The case of Nastasio vs. Cinnamon⁵³ stands for the proposition that a professional rescuer cannot recover for injured incurred in the line of duty from the negligent wrongdoer. In this case, an off-duty fireman entered a burning building for the purpose of saving the tenants from injury or death and was killed. The court found that the fire was caused as a direct result of the defendant's negligence.

Where the deceased (rescuer) was brought into contact with the emergency situation . . . solely the reason of his status as a member of the Kansas City Fire Department, he had no choice whether to take the risk of rescue or not, and therefore, did not fall within the ambit of the rescue doctrine. It was his duty of his employer and the public to do so.⁵⁴

It was averred by the widow of the deceased that her husband was a volunteer and that under the rescue doctrine, a voluntary act by a rescuer "prompted by a spontaneous, humane motive to save human life and which the rescuer had no duty to attempt in the sense of a legal obligation to his employment" should entitle his estate to recover.⁵⁵ However, the court did not agree and held that "agreeing to perform his duties as a fireman at a time when he was off duty does not make him volunteer.⁵⁶ The presence of a duty to rescue precluded the deceased rescuer's estate from recovering.

The relatively recent decision of Gillespie vs. Washington⁵⁷ held that "the professional rescuer doctrine excludes from coverage under general rescue doctrine those whose business it is to save lives and prevent injury to persons and property.⁵⁸ In this case, a police officer was barred from recovering against the estate of a deceased boat operator for injuries he suffered in attempting to upright the capsized boat.

Black Industries vs. Emco Helicopters Inc.⁵⁹ extends the position taken in the Gillespie⁶⁰ case. Here, the owner of a helicopter which crashed while fighting a forest fire allegedly caused by a negligent corporation, brought an action to recover for his property loss. Williams, J. held that: the professional rescuer, who has sustained injury or property loss while attempting to rescue persons or property, cannot recover from the one whose negligence created the hazard if the particular cause of the rescuer's injury or loss was foreseeable and not a hidden, unknown, or extra-hazardous danger which could not have been reasonably foreseen.⁶¹ [italics added]

Williams, J. goes so far as to say that "public policy demands that recovery for rescuer's injury or loss of property be barred whenever the rescuer has voluntarily confronted the risk for remuneration while being fully aware of the hazards created by another's negligence.⁶²

This can be qualified somewhat by the test established by Maltman vs. Sauer.⁶³ In this case, an army helicopter en route to the scene of an automobile accident to rescue and remove the injured motorist, crashed. The administrator of the estates of the deceased brought an action against the motorist under the rescue doctrine. This case held that those dangers which are inherent in professional rescue activity and therefore foreseeable are willingly submitted to by the professional rescuer when he accepts the position and the remuneration inextricably connected therewith.⁶⁴ The case, however, does grant the professional rescuer some leeway. If he can bring himself within the test set out in the case, there is a possibility, provided that the fundamental requirements of a rescue attempt are present, that he could recover. The test examines: "whether the hazard ultimately responsible for causing the injury is inherently within the ambit of those dangers which are unique to and generally associated with the particular rescue activity?"⁶⁵ If the rescuer can prove that the danger he faced was not inherently within the ambit of those dangers, he may be entitled to recover under the general rescuer doctrine.

The rescue doctrine does not necessitate that an individual be prompted by purely altruistic motives. This is not to say, however, that the doctrine applies in the same exact manner to both voluntary and non-voluntary rescuers. "In the case of a professional rescuer, certain hazards are assumed which are not assumed by the voluntary rescuer."⁶⁶