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Is the Professional Rescue Doctrine in Need of Rescue?

Author: Matt Burgess

Guest Editor: Danielle Vukovich

September 3, 2019 10:00am

Many people are familiar with the rescue doctrine; a person may seek recovery if they are injured while reasonably undertaking the rescue of a person who has negligently placed his or herself in a position of imminent peril.  As Justice Cardozo said, “danger invites rescue.”  Wagner v. International Ry., (1921) 232 N.Y. 176.  However, not as many people know that the people who are most often in a position to rescue others, first responders such as fire fighters, are barred from bringing such actions in the state of Washington.

Background

In 1975, the Washington Supreme Court held that the “proper test for determining a professional rescuer’s right to recover under the ‘rescue doctrine’ is 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.” Maltman v. Sauer, (1975) 84 Wash.2d 975, 979. For example, fire fighters expect to come into contact with fires as part of their jobs, and voluntarily take up that responsibility. The Court reasoned that it is the business of professional rescuers to deal with certain hazards, therefore they cannot bring an action against those whose negligence “created the actual necessity for exposure to those hazards.” Id.

The Law

The general “rescue doctrine” has four elements:

  1. There must be negligence on the part of the defendant which is the proximate cause of peril, or what would appear to a reasonable person under the circumstances to be peril, to the life or limb of another.
  2. The peril, or reasonable appearance of peril, to the life or limb of another must be imminent.
  3. In determining whether the peril, or appearance of peril, is imminent, in the sense that an emergency exists requiring immediate action, the circumstances presented to the rescuer must be such that a reasonably prudent man, under the same or similar circumstances, would determine that such peril existed. (The issue of whether the rescuer’s determination conformed with the reasonably prudent man standard is a question for the jury, under proper instructions.)
  4. After determining that imminent peril to the life or limb of a person exists, the rescuer, in effecting the rescue, must be guided by the standard of reasonable care under the circumstances.

Id. at 977.

The Court left professional rescuers with one path towards a successful claim, but a narrow one.  A plaintiff must show that his injury was attributable to a cause which was within the “reasonably foreseeable realm of peril” created the defendant’s negligence, but outside the dangers inherently involved in their rescue profession (flying a rescue helicopter or attempting to put out a fire).  Id. at 981.  However, the professional rescuer’s injury cannot be caused by an intervening factor; the defendant’s original negligence must be an active factor in the course of events which injury the professional rescuer.  Id. at 982.  As a result, the exception created by the Court seems so narrow as to hardly be an exception at all.

Takeaway

While other states, such as Oregon, have abolished the Doctrine (See Christensen v. Murphy (1984) 296 Or. 610), the Professional Rescue Doctrine continues to be in effect in Washington.  If it ever ceases to be so, then more study will be necessary to determine the effects of a more widely accessible Rescue Doctrine.

 

Matt Burges is an Associate at TYSON & MENDES, LLP, and primarily represents clients in defending medical malpractice claims and has litigation experience representing individuals in California state an federal district courts.

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