The Rescue Doctrine

Published date19 November 2021
Law FirmFairfield and Woods
AuthorMs Laura M. Martinez

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

The rescue doctrine authorizes a person 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 the applicability of the rescue doctrine, noting that "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 the doctrine is illustrated by its inclusion in the Restatement (Third) of Torts, which provides:

[I]f an actor's tortious conduct imperils another or the property of another, the scope of the actor's liability includes any harm to a person resulting from that person's efforts to aid or to protect the imperiled person or property, so long as the harm arises from a risk that inheres in the 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 the 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 the 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 the rescue doctrine did not apply because plaintiff failed to prove that the woman and baby were "in imminent peril, requiring immediate action to avoid physical harm."11 The Colorado Court of Appeals affirmed, explaining that the 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 the neighboring property, assisted the 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, the Colorado Supreme Court considered and clarified the rescue doctrine's application in Colorado.16 There, plaintiff saw a taxi driver being physically assaulted by his passenger. Plaintiff approached the cab to help the driver by sticking his head into the cab and yelling at the passenger to stop. This gave the driver an opportunity to exit the vehicle. The passenger then commandeered the 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...

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