Maldonado v. Southern Pac. Transp. Co., CA-CIV

• Decision Date: 02 April 1981
• Docket Number: CA-CIV
• Citation: 129 Ariz. 165,629 P.2d 1001
• Parties: Salvador MALDONADO, Plaintiff/Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware corporation, Defendant/Appellee. 23837.
• Court: Arizona Court of Appeals

Page 1001

629 P.2d 1001

129 Ariz. 165

Salvador MALDONADO, Plaintiff/Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware corporation, Defendant/Appellee.

2 CA-CIV 3837.

Court of Appeals of Arizona, Division 2.

April 2, 1981.

Rehearing Denied May 13, 1981.

Review Denied June 9, 1981.

Thur & Preston by Calvin C. Thur, Scottsdale, for plaintiff/appellant

Evans, Kitchel & Jenckes, P. C. by William G. Fairbourn and M. Douglas Petroff-Tobler, Phoenix, for defendant/appellee.

OPINION

HOWARD, Judge.

This appeal arises from the trial court's granting of appellee's motion to dismiss Counts III, IV and V of appellant's complaint.

Briefly, the complaint shows that on August 11, 1977, at approximately 9:20 p. m., appellant, a Mexican citizen, tried to board a Southern Pacific freight train as it was passing through Picacho, Arizona. Four employees of appellee Southern Pacific Transportation Company (Southern), caused a "jerking or bumping" of the train cars when appellant attempted to board it, causing him to fall under the wheels of the train. Appellant's left arm was severed, his left leg was broken, and he suffered other serious wounds which were open and bleeding.

Appellant's complaint states five claims for relief. The first alleges intentional infliction of injury and the second, wanton and reckless infliction of injury. Claims three, four and five are, respectively: Interference with a savior, failure to render aid and failure to call for medical assistance or report the injury. The trial court granted appellee's motion to dismiss Counts III, IV and V and appellant has timely appealed. We reverse for the following reasons.

DID APPELLANT ESTABLISH A CLAIM FOR FAILURE TO RENDER ASSISTANCE?

Appellant claims that the court erred in dismissing Count IV, his claim for failure to render assistance. When reviewing a motion to dismiss for failure to state a claim, we presume that the facts alleged in the complaint are true. Savard v. Selby, 19 Ariz.App. 514, 508 P.2d 773 (1973). The test to be applied in resolving whether the complaint established that appellant is entitled to relief under any theory of law is whether the complaint, taken in the light most favorable to appellant, is sufficient to constitute a valid claim. Savard v. Selby, supra; Veach v. City of Phoenix, 102 Ariz. 195, 427 P.2d 335 (1967). Motions to dismiss for failure to state a claim are not favored under Arizona law. Folk v. City of Phoenix, 27 Ariz.App. 146, 551 P.2d 595 (1976).

In order to establish a claim in tort, appellant must show the existence of a duty and a breach thereof. Wilson v. City of Tucson, 8 Ariz.App. 398, 446 P.2d 504 (1968). Furthermore, the complaint must allege that the breach of such duty was the proximate cause of the injuries sustained and that appellant was in fact damaged. Curlender v. Bio-Science Laboratories, 106 Cal.App.3d 811, 165 Cal.Rptr. 477 (1980); Restatement (Second) of Torts, Sec. 328(A).

Appellant's fourth claim for relief first alleges that the employees caused the train to "bump or jerk" while he was trying to board it. It then states:

"II. Defendants SOUTHERN PACIFIC COMPANY AND SOUTHERN PACIFIC TRANSPORTATION COMPANY and their agents and employees had affirmative duties with respect to the operations of their trains and the control of their right of way, which duties it owed to all persons and to plaintiff in particular, as follows:

1. A duty to render aid to any person who is injured by SOUTHERN PACIFIC trains or who was injured on SOUTHERN PACIFIC'S right of way.

2. A duty to render aid to any person who is injured and lying helpless and disabled on SOUTHERN PACIFIC'S right of way.

3. A duty to respond to and render assistance to an injured and disabled person on the SOUTHERN PACIFIC right of way who is calling to SOUTHERN PACIFIC employees for help.

III. That after plaintiff, SALVADOR MALDONADO, was severely injured by the aforesaid train and as he lay on the SOUTHERN PACIFIC right of way, in a helpless condition with his left leg severely injured and his left arm severed from his body, and with the defendants' knowing that he was severely injured, the defendants disregarded his calls for help. As the caboose of said train went slowly by the plaintiff, he called for help to DOES I and II who were standing on the platform of said caboose, but said employees of SOUTHERN PACIFIC COMPANY and SOUTHERN PACIFIC TRANSPORTATION did nothing to help and the defendants continued past the plaintiff without rendering assistance as he lay helpless on the ground.

VI. That the acts and omissions of the defendants in refusing to assist the plaintiff and refusing to respond to his pleas for help as he lay severely disabled and bleeding on the SOUTHERN PACIFIC right of way beside the SOUTHERN PACIFIC track after having been injured by the SOUTHERN PACIFIC train, constitutes extreme and outrageous, malicious, reckless and depraved conduct by the said agents, employees and servants of SOUTHERN PACIFIC COMPANY and SOUTHERN PACIFIC TRANSPORTATION COMPANY.

VII. That as a direct and proximate result of the extreme, outrageous, intentional, reckless, malicious and depraved conduct of the defendants as aforesaid, the plaintiff suffered severe emotional distress, fear and anxiety because he felt that his only hope for survival refused to render him assistance...."

The precise question we must answer is whether Southern did in fact owe appellant a duty to render aid after he was seriously injured by the train. As there is no prior Arizona case law to the contrary, we will follow the position taken by the Restatement (Second) of Torts, Sec. 322. Barnum v. Rural Fire Protection Company, 24 Ariz.App. 233, 537 P.2d 618 (1975).

Section 322 states:

"If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm."

The Comment to this section further clarifies the existence of a separate and distinct duty to render assistance to appellant. It provides:

"a. The rule stated in this Section applies not only where the actor's original conduct is tortious, but also where it is entirely innocent. If his act, or an instrumentality within his control, has inflicted upon another such harm that the other is helpless and in danger, and a reasonable man would recognize the necessity of aiding or protecting him to avert further harm, the actor is under a duty to take such action even though he may not have been originally at fault. This is true even though the contributory negligence of the person injured would disable him from maintaining any action for the original harm resulting from the actor's original conduct.

b. The words 'further harm' include not only an entirely new harm due to the dangerous position in which the other has been placed by the actor's tortious act ... but also any increase in the original harm caused by the failure to give assistance ... and any protraction of the harm which prompt attention would have prevented .... (illustrations omitted)

c. Where the original conduct is tortious, the duty stated in this Section frequently is unnecessary to the existence of liability for the further harm, since the connection between the original wrong-doing and the further harm is usually such as to make the actor's conduct in law the cause of such harm. However, a failure to perform the duty here stated creates liability even though the actor's original misconduct is not the legal cause of the further harm.

d. Effect of other's contributory negligence. (emphasis in original) The liability which this Section recognizes is not imposed as a penalty for the actor's original misconduct, but for a breach of a separate duty to aid and protect the other after his helpless condition caused by the actor's misconduct is or should be known. It is therefore immaterial that the accident which rendered the other helpless to care for himself was caused by his own contributory negligence as well as by the actor's misconduct, so that he cannot recover for the original injury, nor, apart from the duty stated in this Section, for any further harm which he suffers in consequence of it, although the actor's tortious conduct was undoubtedly the legal cause thereof." (emphasis added)

It is clear that a separate duty to render aid exists regardless of whether appellee's original misconduct was intentional or innocent or whether it was the legal cause of any further harm suffered.

A case similar to the one at bar is Tubbs v. Argus, 140 Ind.App. 695, 225 N.E.2d 841 (1967). In Tubbs, the appellant was traveling as a guest in appellee's automobile when she was injured. Appellee abandoned the car and did not render reasonable aid or assistance to the injured appellant. Appellant's amended complaint, alleging that she suffered additional injuries as a result of appellee's failure to render aid, was dismissed by the trial court. On appeal, the court reversed the judgment and stated as follows:

"At common law, there is no general duty to aid a person who is in peril, (citations omitted) However, in L. S. Ayres & Company (v. Hicks) supra, (220 Ind. 86) page 94, 40 N.E.2d (334) page 337, the Supreme Court of Indiana held that 'under some circumstances, moral and humanitarian considerations may require one to render assistance to another who has been injured, even though the injury was not due to negligence on his part and may have been caused by the negligence of the injured person. Failure to render assistance in such a situation may constitute actionable negligence if the injury is aggravated through lack of due care.' (citations omitted)" 225 N.E.2d at 842.

Relying on the Restatement (Second) of Torts, Sec. 322, the court concluded:

"... It is the opinion of this Court that an affirmative duty to render reasonable aid...