Ryder Truck Rental, Inc. v. Korte, 76-1427

• Decision Date: 04 April 1978
• Docket Number: No. 76-1427,76-1427
• Citation: 357 So.2d 228
• Parties: RYDER TRUCK RENTAL, INC., John Lee Abrams and Atlas Electric Supplies, a Florida Corporation, Appellants, v. Orin C. KORTE, and Margaret M. Korte, his wife, Sol Kleinman and Allstate Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 228

357 So.2d 228

RYDER TRUCK RENTAL, INC., John Lee Abrams and Atlas Electric Supplies, a Florida Corporation, Appellants, v. Orin C. KORTE, and Margaret M. Korte, his wife, Sol Kleinman and Allstate Insurance Company, Appellees.

No. 76-1427.

District Court of Appeal of Florida, Fourth District.

April 4, 1978.

Rehearing Denied May 2, 1978.

Henry Burnett of Fowler, White, Burnett, Hurley, Banick & Knight, P.A., Miami, for appellants.

F. Lawrence Matthews, Miami, Gilbert J. Murray, and Patrick N. Chidnese, Fort Lauderdale, for appellees-Korte.

Robert E. Ferris, Jr., of Gustafson, Caldwell, Stephens & Ferris, Fort Lauderdale, for amicus curiae-The Fraternal Order of Police.

ALDERMAN, Chief Judge.

In this appeal we must determine what effect, if any, the adoption of comparative negligence in lieu of contributory negligence has had upon the "rescue doctrine" and whether a policeman who is injured while attempting a rescue has a cause of action against those responsible for the peril. We conclude that principles of comparative negligence are applicable in rescue cases and that a policeman, under certain circumstances, may have a cause of action based upon the rescue doctrine.

The appellants were the defendants in the trial court. Abrams, an employee of Atlas, negligently drove a truck owned by Ryder, causing it to collide with several parked cars. The plaintiff, a police officer, in response to a call, arrived at the scene with other officers and found a woman hysterically screaming that her husband had a heart condition and was suffering a heart attack. The woman's husband was slumped forward over the steering wheel of one of the cars involved in the accident. The officers could not reach the victim to administer aid because other vehicles were jammed against both sides of the victim's car. One of the police officers shouted, "Let's pick this thing up," and the plaintiff and two other officers were able to move the front end of one of the vehicles about ten or twelve inches, making it possible for them to reach the victim. In moving the vehicle the plaintiff suffered a back injury. The trial court, in a non-jury trial, ruled that the rescue doctrine was applicable, that the plaintiff was injured while performing beyond his normal duties a humanitarian act in a reasonable manner, and that he was therefore entitled to recover from the defendants.

The Supreme Court, prior to Hoffman v. Jones, 280 So.2d 431 (Fla.1973), recognized that the rescue doctrine could be invoked in a personal injury action to offset contributory negligence on the part of a rescuer, Rose v. Peters, 82 So.2d 585 (Fla.1955), but there has been no detailed analysis of the doctrine. In most cases where it has been considered, our appellate courts have found it to be inapplicable, Rose v. Peters, supra, Adair v. The Island Club, 225 So.2d 541 (Fla.2d DCA 1969), Perotta v. Tri-State Insurance Co., 317 So.2d 104 (Fla.3d DCA 1975), although in Newsome v. St. Paul Fire and Marine Insurance Co., 350 So.2d 825 (Fla.2d DCA 1977), the court, in reversing a directed verdict in favor of the defendant, held that a jury question was presented as to whether the doctrine was applicable. None of the Florida cases, however, have considered the issues which are presented in this appeal.

It has generally been held that the rescue doctrine serves a dual purpose: first, to establish the causal connection between the defendant's negligence and the plaintiff's injury, and second, to eliminate the absolute defense of contributory negligence. 57 Am.Jur.2d, Negligence, § 227, § 418. Now that Florida has abolished contributory negligence, the rescue doctrine is no longer needed to allow a rescuer to recover in spite of his contributory negligence, but there is no logical reason why the principles of comparative negligence should not apply in a rescue case. We therefore hold that when the plaintiff in performing a rescue is himself negligent, he should recover only that portion of the entire damages sustained by him as the defendant's negligence bears to the combined negligence of both the plaintiff and the defendant. In the present case the trial court specifically found that "the plaintiff was injured while performing a humanitarian act in a reasonable manner." The record supports the finding that the plaintiff was not negligent; therefore it was not necessary to apportion his damages.

Although no longer necessary to relieve a rescuer from the absolute bar of contributory negligence, the rescue doctrine is still applicable to establish that the defendant's negligence was the proximate cause of the plaintiff's injury. A basic principle of the doctrine is that where the defendant has created a situation of peril for another the defendant will be held in law to have caused the peril not only to the victim but also to his rescuer, and so to have caused any injury suffered by the rescuer in his rescue attempt. Tiley: The Rescue Principle, 30 Modern Law Review 25.

In this case, the plaintiff as a rescuer should...