McCoy v. American Suzuki Motor Corp.

• Decision Date: 01 May 1997
• Docket Number: No. 14948-0-III,14948-0-III
• Citation: 86 Wn.App. 107,936 P.2d 31
• Parties: James M. McCOY and Donna McCoy, Husband and wife, Appellants, v. AMERICAN SUZUKI MOTOR CORPORATION, a California Corporation; Suzuki Motor Company, Ltd., A foreign corporation, Respondents.
• Court: Washington Court of Appeals

Page 107

86 Wn.App. 107

936 P.2d 31

James M. McCOY and Donna McCoy, Husband and wife, Appellants, v. AMERICAN SUZUKI MOTOR CORPORATION, a California Corporation;

Suzuki Motor Company, Ltd., A foreign

corporation, Respondents.

No. 14948-0-III.

Court of Appeals of Washington,

Division 3,

Panel One.

May 1, 1997.

Roger A. Felice, Theresa L. Lalone, Roger A. Felice, P.S., Spokane, for Appellants.

Thomas V. Harris, Allan H. Baris, Merrick, Hofstedt & Lindsey, P.S., Seattle, James M. Harris, Sidley & Austin, Los Angeles, CA, Paul J. Triesch, Assistant Attorney General, Seattle, for Respondents.

SWEENEY, Chief Judge.

"[O]ne who imperils himself in order to rescue a person who is in danger of being injured or killed through the negligence of another person, may recover damages from the negligent person for injuries received while effecting such rescue." Highland v. Wilsonian Inv. Co., 171 Wash. 34, 39, 17 P.2d 631 (1932). James M. McCoy saw a Suzuki Samurai swerve across the freeway and roll after hitting a patch of black ice. He stopped to help the occupants. He then helped a Washington State trooper by placing flares along the highway. Mr. McCoy was injured by a hit-and-run vehicle while returning to his car some two hours later.

Mr. McCoy and his wife, Donna McCoy, sued the driver and passenger of the Samurai based on the rescue doctrine. ¹ Suzuki moved for summary judgment. The trial court concluded that the hit-and-run was a superseding cause which relieved Suzuki of liability. According to the trial judge, being struck by a hit-and-run driver was too remote a circumstance and therefore not a foreseeable consequence of a defective product. The court granted Suzuki's motion for summary judgment. The McCoys appeal.

¹ They sued American Suzuki Motor Corporation and its parent company, Suzuki Motor Company, Ltd., (Suzuki) based on the Washington product liability act (PLA), RCW 7.72. ²

The trial judge's analysis is sound if the question here is whether the McCoys' injuries are a foreseeable consequence of manufacturing a defective car. But their cause of action is based on the rescue doctrine. That doctrine varies the ordinary rules of negligence: "it permits the rescuer to sue on the basis of defendant's initial negligence toward the party rescued, without the necessity of proving negligence toward the rescuer...." Solgaard v. Guy F. Atkinson Co., 6 Cal.3d 361, 491 P.2d 821, 99 Cal.Rptr. 29, 33 (1971). We therefore reverse the trial court's summary judgment order of dismissal of the McCoys' action and remand the matter for trial.

DISCUSSION

In French v. Chase, 48 Wash.2d 825, 830, 297 P.2d 235 (1956), the court set out the four elements of the rescue doctrine:

(1) There must be negligence on the part of the defendant which is the proximate cause of peril, or what would appear to a reasonable person under the circumstances to be peril, to the life or limb of another.

(2) The peril, or reasonable appearance of peril, to the life or limb of another must be imminent.

(3) In determining whether the peril, or appearance of peril, is imminent, in the sense that an emergency exists requiring immediate action, the circumstances presented to the rescuer must be such that a reasonably prudent man, under the same or similar circumstances, would determine that such peril existed. (The issue of whether the rescuer's determination conformed with the reasonably prudent man standard is a question for the jury, under proper instructions.)

(4) After determining that imminent peril to life or limb of a person exists, the rescuer, in effecting the rescue, must be guided by the standard of reasonable care under the circumstances. (Whether there has been conformance with this standard also is a question for the jury, under proper instructions.)

(Emphasis omitted.) We first address Suzuki's threshold argument that the trial court did not err because the PLA eliminated the McCoys' cause of action based on the rescue doctrine.

A. Application of Product Liability Act. Suzuki argues that the PLA abrogated a rescue doctrine cause of action because the doctrine is an outgrowth of common law negligence. It relies on Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 320, 858 P.2d 1054 (1993), for the proposition that liability under the PLA extends to those injuries caused directly "by the product to the person or the property of the claimant." (Emphasis omitted.) And it relies on Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wash.2d 747, 762, 818 P.2d 1337 (1991), for the proposition that the Legislature did not intend to engraft ordinary negligence principles onto the law of design defect product liability claims.

Neither Fisons nor Ayers is controlling. Neither decision addressed or applied the rescue doctrine. The issue in Fisons was whether a treating physician had a cause of action against a drug company for personal and professional injuries he suffered when his patient had an adverse reaction to a drug. Fisons, 122 Wash.2d at 320, 858 P.2d 1054. The court held that the facts did not support a cause of action under the PLA. Id. at 322, 858 P.2d 1054. It observed that our courts have been cautious about extending a right to recover for emotional harm, "especially when the distress is the consequence of an injury suffered by a third person." Id. at 320-21, 858 P.2d 1054 (plaintiff's emotional damages caused by witnessing or learning of a third person's physical injuries are compensable only in very limited circumstances). In contrast, our state has shown no reticence in extending the right to recover to a rescuer. Highland, 171 Wash. at 40, 17 P.2d 631; Maltman v. Sauer, 84 Wash.2d 975, 530 P.2d 254 (1975); French, 48 Wash.2d at 833, 297 P.2d 235 (Schwellenbach, J., concurring); In re Estate of Keck, 71 Wash.App. 105, 110, 856 P.2d 740 (1993); Ballou v. Nelson, 67 Wash.App. 67, 70, 834 P.2d 97 (1992) (doctrine encourages efforts to save imperiled persons).

In Ayers, the plaintiff's product liability suit was based on a manufacturer's failure to warn of the danger of aspirating baby oil. Ayers simply stands for the proposition that despite the language of RCW 7.72.030(1) (manufacturer subject to liability for design defect based on negligence), foreseeability is not an element of a failure-to-warn claim. Ayers, 117 Wash.2d at 761, 818 P.2d 1337. We are not persuaded by Suzuki's claim that Ayers "makes [it] clear that the rescue doctrine cannot be 'engraft[ed]' onto a claim under the [PLA]."

Other jurisdictions have permitted recovery under the rescue doctrine in product liability claims. Williams v. Foster, 281 Ill.App.3d 203, 217 Ill.Dec. 9, 666 N.E.2d 678 (1996) (rescuer sues manufacturer of water heater for injuries suffered rescuing family from burning home); Welch v. Hesston Corp., 540 S.W.2d 127 (Mo.Ct.App.1976) (injured volunteer fireman sues manufacturer of haystacker machine); Govich v. North Am. Sys., Inc., 112 N.M. 226, 814 P.2d 94 1991) (plaintiff sued manufacturer of coffee maker and component for damages suffered while attempting rescue of dog from burning house); Guarino v. Mine Safety Appliance Co., 25 N.Y.2d 460, 255 N.E.2d 173, 306 N.Y.S.2d 942, 44 A.L.R.3d 467 (1969) (estate of rescuer who died of gas asphyxiation sues manufacturer of gas mask; court holds defendant manufacturer committed "culpable act" by manufacturing and distributing defective oxygen-producing mask); Conaway v. Roberts, 725 S.W.2d 377 (Tex.Ct.App.1987) (rescuer sues manufacturer for injuries suffered when he comes to aid of neighbor trapped under riding lawn mower).

We are also not persuaded by Suzuki's argument that liability for a design defect under the PLA should not extend to bystanders. A bystander is one who is "present but not taking part." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 307 (1969); see State v. Johnson, 7 Wash.App. 527, 535, 500 P.2d 788 (1972) (bystanders are those who, "without intent, purpose or design to do other than be where they are, find themselves among a crowd or group of people"), aff'd, 82 Wash.2d 156, 508 P.2d 1028 (1973). A rescuer, however, reacts to the "cry of distress" with action. Wagner v. International Ry., 232 N.Y. 176, 180, 133 N.E. 437, 19 A.L.R. 1 (1921). A rescuer voluntarily exposes himself or herself to danger. Keck, 71 Wash.App. at 110, 856 P.2d 740. Mr. McCoy was not a bystander. He was a rescuer.

"[W]hen one sees his fellow-man in such peril he is not required to pause and calculate as to court decisions, nor recall the last statute as to the burden of proof...." Highland v. Wilsonian Inv. Co., 171 Wash. 34, 41, 17 P.2d 631 (1932) (quoting Norris v. Atlantic Coast Line R.R., 152 N.C. 505, 67 S.E. 1017 (1910)). Likewise, a potential rescuer should not have to "pause and calculate" the intricacies of the PLA before coming to the aid of one in peril. Application of the rescue doctrine does not, and should not, depend on the particular legal theory underlying the plaintiff's cause of action--so long as the conduct of the defendant created the peril which invited rescue.

The PLA has not eroded a rescuer's right to recover. We agree with the McCoys' contention that a rescuer, qualifying as such under the elements of French, may recover for injuries against the party who created the peril. We therefore apply the four elements of the rescue doctrine to the facts presented.

B. Rescue Doctrine.

1. Negligence proximately causing peril. The first element of French v. Chase, 48 Wash.2d 825, 830, 297 P.2d 235 (1956) requires "negligence on the part of the defendant which is the proximate cause of peril, or what would appear to a reasonable person ... to be peril, to the life or limb of another." This provision therefore requires a determination of whether Suzuki is the proximate cause of the peril to the driver and passenger of the Samurai. This is a question for the trier of fact. It must determine if (1) the Samurai had a design defect and, if...