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The Danger Invites Rescue Doctrine

April 7, 2016
By: Frank Scahill

A U.S. Mail truck stops in the right lane of the North Service Road of the Long Island Expressway approximately 300 feet east of Roslyn Road on Thursday, September 10, 2011, at 5:52 a.m. The postal truck driver gets out of his truck to assist a driver of a vehicle that overturned on the wet road and hit a tree, off the road. The truck is blocking the view of the overturned vehicle for cars approaching westbound. The Postal worker, either oblivious or unaware of oncoming traffic, steps into the travel lane and is tragically killed by an oncoming vehicle. The plaintiff files suit against the vehicle operator/owner that hit the postal worker and the driver of the vehicle that overturned, creating the emergency. The lower court denied the summary judgment motion filed by counsel for the overturned vehicle's driver finding:

"The motion of defendant Aiuto, which seeks summary judgment dismissing the plaintiff's complaint and any cross-claims, is denied. The danger invites rescue doctrine creates a duty of care towards a potential rescuer where the culpable party has placed himself in an imminently perilous situation which invites rescue (Provenzo v. Sam, 23 NY 2d 256, 260, 296 NYS 2d 322, 244 NE 2d 26; Ha-Sidi v. South Country Cent. School Dist., 148 AD 2d 580, 539 NYS 2d 47) is for the jury to determine whether the decedents reasonably believed that he (the defendant) was still in peril (see Provenzo v. Sam, supr.)" (Khalil v. Guardino, 300 AD 2d 360, 362, 751 NYS 2d 518 [2d Dept. 2002]).

The danger invites rescue doctrine was born of the principle that the law has so high a regard for human life that it will not impute negligence to an effort to preserve it...The doctrine was created to avoid a plaintiff being found contributorily negligent as a matter of law when he voluntarily placed himself in a perilous situation to prevent another person from suffering serious injury or death...the doctrine was subsequently expanded to create a duty of care towards a potential rescuer where one party, by his culpable act, has placed another person in a position of imminent peril which invites a third person, the rescuing plaintiff, to come to his aid...the doctrine also encompasses a situation where the culpable party has placed himself in a perilous situation which invites rescue..." (Ha-Sidi v. South Country Central School District, 148 AD 2d 580, 582, 539 NYS 2d 47 [2d Dept.]). In the present case the plaintiff has raised a sufficient question of fact concerning whether the decedent reasonably believed that defendant Aiuto was still in peril in the overturned vehicle, that precludes the granting of summary judgment."

The Appellate Division, Second Department in a decision dated March 30, 2016, reversed the Lower Court, in Pierre v Olshever (2016 NY Slip Op 0234) holding: "In support of his motion for summary judgment, Aiuto established his prima facie entitlement to judgment as a matter of law by presenting evidentiary proof that he was not negligent in causing the accident involving the decedent and the vehicle operated by Olshever, and that his conduct merely furnished the condition for the accident involving the decedent, and was not a proximate cause of the decedent's injuries and resulting death. In opposition to the motion, neither the plaintiff nor Olshever and Nenadich raised a triable issue of fact. Contrary to the finding of the Supreme Court, as well as the contentions of the plaintiff, and Olshever and Nenadich, the doctrine of "danger invites rescue" is inapplicable to the facts of this case There is nothing in the record to suggest that Aiuto was a culpable party who voluntarily placed himself in imminent, life-threatening peril which invited rescue. (Citations omitted.)" Read the decision here.

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