Lorie v. Standard Oil Co., 75545

• Decision Date: 24 March 1988
• Docket Number: No. 75545,75545
• Citation: Lorie v. Standard Oil Co., 368 S.E.2d 765, 186 Ga.App. 753 (Ga. App. 1988)
• Parties: LORIE et al. v. STANDARD OIL COMPANY et al.
• Court: Georgia Court of Appeals

Page 765

368 S.E.2d 765

186 Ga.App. 753

LORIE et al. v.STANDARD OIL COMPANY et al.

No. 75545.

Court of Appeals of Georgia.

March 24, 1988.

Rehearing Denied April 4, 1988.

Certiorari Denied May 13, 1988.

Richard H. Middleton, Jr., Eugene C. Brooks IV, Paul E. Morgenthal, Savannah, for appellants.

Jordon D. Morrow, David R. Smith, Savannah, for appellees.

POPE, Judge.

PlaintiffRudolfo Lorie instituted the present action seeking damages for injuries he allegedly sustained during an attempted rescue of an excavation worker who was trapped when the pit he was working in collapsed.Plaintiff's wife, Mirta Lorie, also sought damages for loss of consortium.

The record shows that on March 10, 1984defendants were in the process of digging a pit in order to install underground gasoline tanks in the parking lot of a gasoline service station in Savannah, Georgia.Lorie, an army medic, was employed part-time at the service station, but was not involved in the excavation project.Upon apprehending that a cave-in had occurred, Lorie ran to the pit, got down on all fours, looked down into the hole, and then jumped down onto one of the gasoline storage tanks, where he was either hit on the head by a falling object or hit his head on something in the pit.Both Lorie and the trapped worker, who was rescued by employees of defendants, were taken to a nearby hospital where Lorie was treated and released.The treating physician characterized Lorie's injury as a "superficial abrasion."

Lorie, however, continued to experience both physical and emotional difficulties and was subsequently diagnosed as having suffered organic brain damage.Lorie presented evidence at trial that these continuing problems caused him to leave the army and to have trouble in maintaining employment.On the other hand, defendants presented evidence tending to show that Lorie's emotional difficulties pre-dated his injury, that Lorie was exaggerating his mental and emotional problems and that the superficial laceration he received during the attempted rescue of the trapped worker was insufficient to cause the mental and emotional problems subsequently experienced by him.The jury returned a verdict for Lorie on his damages claim, and against plaintiffMirta Lorie on her loss of consortium claim, and awarded Rudolfo Lorie $1,650.65 in special damages, $2,301.30 in general damages and $10,000 from each defendant in punitive damages.Plaintiffs appeal and seek a new trial based on alleged errors in the trial court's charge to the jury which they contend resulted in an improper diminishment in the damages awarded.¹

1.Plaintiff contends that the trial court erred in instructing the jury that he was charged with exercising ordinary care for his own safety in the attempted act of rescue, and argues that the trial court should have instructed the jury that the appropriate inquiry in a rescue situation is whether the rescuer acted heedlessly, rashly or wantonly.In this regard, plaintiff also contends that the trial court erred in charging that, as a rescuer, he could assume the risk in undertaking the rescue attempt.We agree with plaintiff that this enumeration assigning error to the charge of the court has merit.

In the present casethe trial court, in pertinent part, instructed the jury as follows: "[A]ll parties in this case had the duty to exercise ordinary care and diligence.Ordinary diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances.Ordinary negligence means simply the absence or the failure to exercise ordinary diligence.In considering the facts of this case, you may consider what in Georgia is called the rescue doctrine.The rescue doctrine applies when the defendants' negligent acts or omissions have created a condition or situation which involves imminent and urgent peril to life and property.In such instances, those negligent acts or omissions are also negligent in relationship to all others who, in the exercise of ordinary care for their own safety under the circumstances, attempt to rescue the endangered life or property by reasonably appropriate means.I charge you that the plaintiffs cannot recover, regardless of any negligence on the part of either of the defendants, if you find that the plaintiffRudolfo Lorie is chargeable with assuming the risk involved.One assumes the risk of danger when one voluntarily places oneself in a situation where it is likely to strike.One who recklessly ... and [sic] observed and clearly obvious danger and who fails to exercise that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances must be held to have assumed the risk of any resulting injury.I charge you that a person may not heedlessly...