Not All Heroes Wear Capes, Not All Rescuers Recover: Overcoming the “Rescue Doctrine”

Not All Heroes Wear Capes, Not All Rescuers Recover: Overcoming the “Rescue Doctrine”

Written by Sabrina Carter, Esq.

Edited by Brian Cafritz, Esq.

Society has always commended those who put themselves at risk in order to rescue their fellow man. Superhero movies and courtrooms alike have affirmed time and time again that a “Good Samaritan” is honorable and courageous. In the name of good public policy, the law has adopted protections for these individuals to promote selfless acts and rescue attempts. However, what happens when the Good Samaritan is injured?  If a stranger to your business intervenes post-accident in order to help an injured guest, his or her actions can expose the business to additional liability. Therefore, before you allow those with capes and leotards to interject themselves, let us stop to consider what this could mean for your business.

In the Commonwealth of Virginia, the “rescue doctrine” works to protect injured rescuers. It states that a rescuer who is injured during the rescue attempt may sue the person and/or entity who is responsible for endangering the victim.  That can mean the person causing the original accident, or another separate cause.  For example, a customer may be injured while intervening to stop a third party criminal act.  Or a rescuer may slip on debris coming to the aid of another injured person.  Another twist is that the responsible party could even be the victim herself. In any of these cases, the injured rescuer, whom society has collectively applauded throughout time, my sue your company to recover for her injuries.

The case of Ruffin v. Tignor Trucking Corp. illustrates the exposure from this type of scenario. In Ruffin, an employee of Tignor Trucking Corp. drove one of the company’s tractors onto a highway. Just as he came out of the turn onto the highway, the tractor left the road, struck a guardrail, and flipped over. The plaintiff and her friends were driving a car in the same direction and witnessed the accident. They pulled over, and the plaintiff climbed onto the overturned tractor in an attempt to open the doors and pull the driver out. However, before the plaintiff had time to react, another vehicle struck the tractor from behind, knocking her off and resulting in severe injuries. A jury rendered judgment in favor of the plaintiff, and the court stated that “there seems to be but little doubt that a rescuer who is injured in a reasonable undertaking to save a person who has negligently imperiled himself may recover from that person.” See Ruffin v. Tignor Trucking Corp., 5 Va. Cir. 60, 61 (1982).

Another case that further illuminates the nuances of the rescue doctrine is Lassiter v. Warinner. The plaintiff in Lassiter witnessed a biker gang attack the defendant and his wife while they were in their parked car. The plaintiff intervened, attempting to pull one of the attackers off of the car.  The defendant then backed up his vehicle, causing the front end to strike the plaintiff and injure him. The court noted that the rescue doctrine would typically not apply since the defendant did nothing to endanger himself or provoke the attack. “Nevertheless, even though the victim was not negligent in creating the peril, he may be liable for negligence occurring, with respect to the rescuer, after the efforts to rescue the victim commenced, and the rescue doctrine may apply.” Lassiter v. Warinner, 235 Va. 274, 279 (1988). Therefore, even if a victim did not imperil herself, her actions during the rescue attempt could trigger the rescue doctrine.

Although the rescue doctrine affords Good Samaritans strong legal protections, they cannot carry out their rescue attempt in any manner they please with wanton disregard for their own safety. The court in Kimble v. Carey acknowledged that the rescue doctrine stands as a limit to contributory negligence and assumption of the risk as affirmative defenses. However, it also emphasized that the rescue doctrine has a limit of its own, stating that “the rescuer cannot recover for injuries sustained during the rescue attempt if the rescuer has acted rashly or recklessly in disregard of his or her own safety.” See Kimble v. Carey, 279 Va. 652, 658 (2010) (emphasis added). This is a slightly higher standard than ordinary contributory negligence.

In Kimble, the victim was driving on a highway on a dark night while intoxicated. He drove his vehicle into the rear of a construction truck, and as a result of the collision, the victim was trapped inside his vehicle which then caught on fire. The rescuer saw this occur and pulled her car over on the opposite side of the highway approximately 100 yards past the collision site. She then attempted to cross the dark highway to get to the victim when another oncoming vehicle struck her, causing serious injuries. The court stated that the determination of whether or not the rescuer’s attempt to cross a highway on foot in the middle of the night was rash and reckless was for a jury to decide. By way of further guidance, the court stated that “[it] makes no difference to rescue doctrine analysis whether the victim was guilty of simple negligence, gross negligence, or willful or wanton conduct in creating his or her peril, because the rescuer’s right to recover for injuries sustained during the rescue attempt rises or falls with the determination whether the rescuer acted rashly or recklessly.” See id. At 662.

Because of the strong public policy motivations bolstering the Good Samaritan laws and the rescue doctrine, it is not easy to prevent an injured rescuer from recovering from a victim who has imperiled herself. If that victim happens to be your on-the-clock employee, this means that the rescuer may be able recover from your company as well. However, as the court in Kimble determined, if that rescuer has acted rashly and recklessly in their rescue attempt, the case law dictates that they cannot recover.

The reality is that when an accident happens, people are shocked, stunned, and act on instinct. They do not always act logically or with full awareness. This means that their individual recollections of their surroundings are going to be incomplete, biased, or skewed. Therefore, it is worth conducting thorough investigation not only into the circumstances surrounding the imperiled victim but also the actions of the rescuer to assess your company’s liability.  CCTV, photographs of the scene, and witness statements all become critical evidence in capturing the details of the events.  This makes it much easier to prove the “rash and reckless” standard.

When a rescuer is injured on your property or during the rescue of one of your injured employees, it is important to know the facts in detail and the standards of law that will be applied.  Fortunately, the attorneys at KPM LAW are aware of the traps and pitfalls of these claims.  If you have such a situation or need assistance, we are available to assist and answer any questions you may have.

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