Sears v. Morrison

• Decision Date: 29 November 1999
• Docket Number: No. C029431.,C029431.
• Citation: 90 Cal.Rptr.2d 528,76 Cal.App.4th 577
• Court: California Court of Appeals Court of Appeals
• Parties: Elda R. SEARS, Plaintiff and Appellant, v. John D. MORRISON et al., Defendants and Respondents.

90 Cal.Rptr.2d 528

76 Cal.App.4th 577

Elda R. SEARS, Plaintiff and Appellant, v. John D. MORRISON et al., Defendants and Respondents.

No. C029431.

Court of Appeal, Third District.

November 29, 1999.

Review Denied March 15, 2000.

Donald E. Bartholomew, Redding, James V. Jordan, Los Angeles, and Michael R. Hambly, for Plaintiff and Appellant.

Moss & Enochian, Robert A. Spano and Mark D. Norcross, Redding, for Defendants and Respondents.

MORRISON, J.

Under the rescue doctrine, an actor is usually liable for injuries sustained by a rescuer attempting to help another person placed in danger by the actor's negligent conduct. The question here is whether an actor is liable for injuries sustained by a person who is trying to rescue the actor from his own negligence. The answer is yes.

John D. Morrison put a swamp cooler on a furniture dolly and removed its sides, exposing the machinery. He was working on it, while it was running, when he tripped on an electrical cord while trying to empty an ashtray, causing the swamp cooler to fall on him. Elda Sears, who had been with Morrison while he was working on the cooler, tried to help him. Because of his poor medical condition and difficulty in breathing, she thought he might have a heart attack or be unable to breathe with the heavy machine on top of him. When she tried to lift the swamp cooler off of Morrison, her hand was severely cut by a moving part.

Sears sued Morrison and his mother (now deceased), who owned the property. The trial court granted a defense motion for summary judgment because "The rescue doctrine does not apply in this case." Sears filed a notice of appeal and later obtained an adverse judgment.

The rescue doctrine, like so many doctrines, is a specific application of a general legal principle. Here, the general rule, set forth in Civil Code section 1714, subdivision (a), is "Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself." (Italics added.)

Where a person has negligently managed his own person he is liable for the foreseeable consequences. Generally, where an actor puts himself or others in danger, it is foreseeable a person will attempt to rescue those placed in danger. As Justice Cardozo said, "Danger invites rescue." (Wagner v. International Ry. Co. (1921) 232 N.Y. 176, 180 (Wagner).) Accordingly, although the rescuer may be said to have willingly exposed himself to the danger, such act does not eliminate or excuse the culpability created by the actor's negligence.

As Morrison concedes, this is a causation question. "The intervention of a force which is a normal consequence of a situation created by the actor's negligent conduct is not a superseding cause of harm which such conduct has been a substantial factor in bringing about." (Rest.2d, Torts (1965) Legal Cause, § 443, p. 472.) So, as stated in the comments to this section of the Restatement, "A car negligently driven by A endangers B, a child in the highway. C, a bystander, dashes out to rescue the child, and is struck and injured by A's car. A is subject to liability to C." (Id., com. (d), illus. 4, p. 474.) "If the actor's negligent conduct threatens harm to another's person, land, or chattels, the normal efforts of the other or a third person to avert the threatened harm are not a superseding cause of harm resulting from such efforts." (Id., § 445, p. 475.) But, "The rule stated in this Section applies equally where the conduct of the actor has created a danger only to himself, if at the time of such conduct he should reasonably anticipate that others might attempt to rescue him from his self-created peril, and sustain harm in doing so." (Id., com. (d), p. 476.) "A negligently drives a tank truck full of gasoline so that it goes off of the highway and is wrecked. A is knocked unconscious and the truck catches fire. B, a bystander, attempts to rescue A from the burning truck, and while he is doing so the gasoline explodes, injuring B. A is subject to liability to B." (Id., illus. 4, p. 477.) So, too, here.

Morrison repeatedly asserts Sears employs the rescue doctrine to prove negligence; this is incorrect. As the movant on summary judgment it was Morrison's burden to demonstrate that Sears could not prevail. (Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1287-1288, 286 Cal.Rptr. 198.) He attempted to do so by showing the hazard was obvious and Sears caused her own injuries by injecting herself into the emergency. Sears opposed the motion by pointing to the rescue doctrine which generally holds a person to a lesser standard of care when confronted with an emergency calling for the rescue of another person: The rescuer, absent reckless conduct, is not deemed to have "brought the injury upon himself as phrased in Civil Code section 1714. That does not mean Sears is using the doctrine to show Morrison's lack of care. Nothing in Morrison's papers established his act of tripping and pulling the swamp cooler on top of himself (after having removed its covers and left it running while working on it) was prudent. Morrison's analysis, making the unremarkable point that proof of "rescue" is not a substitute for proof of negligence, does not help him.

It is true, as Morrison states, the rescue doctrine arose in an era of contributory negligence, where any negligence on the part of a plaintiff barred the action. "The purpose of the rescue doctrine when it was first created was to avoid having a plaintiff be found contributorily negligent as a matter of law when he voluntarily placed himself in a perilous position to prevent another person from suffering serious injury or death, the courts often stating that the plaintiffs recovery should not be barred unless his rescue attempt was recklessly or rashly made." (Annot., Rescuer's Comparative Negligence (1990) 75 A.L.R.4th 875, 876.) Most defendants could point to some negligence by the rescuer and simply approaching the danger could be construed as negligent, or as an assumption of the risk. This advanced no tenable public policy: It deterred rescues and ran counter to the human impulse to help others in need. Accordingly, the courts ruled the act of approaching danger did not interrupt the normal causal reach of tort liability and did not, of itself, establish contributory negligence. (1 Sutherland, Law of Damages (4th ed. 1916) Compensation, § 39, pp. 148-149.) In most of the cases, defendant's negligence endangers a third party. But, with one arguable difference, the same policy considerations apply in the first-party case, where defendant endangers himself. The arguable difference is a person does not have a legal duty to avoid hurting himself.

Morrison concedes the majority of jurisdictions extend the rescue doctrine to first-party cases, though he only discusses a handful of the cases. His theory is that most decisions impose a form of liability without fault, because there is no general duty to refrain from hurting oneself. We agree with Morrison's premise that one does not have a legal duty to avoid harming himself. (Thor v. Superior Court (1993) 5 Cal.4th 725, 741, 21 Cal.Rptr.2d 357, 855 P.2d 375; Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 496, 69 Cal. Rptr.2d 244; see Lodi v. Lodi (1985) 173 Cal.App.3d 628, 631, 219 Cal.Rptr. 116 [person cannot sue himself].) But the issue is not Morrison's "right" to be negligent to himself. By the terms of Civil Code section 1714, he has a duty to prudently manage his person so as not to endanger others.

Professor Francis H. Bohlen, the first Reporter of the Restatement of Torts, in a passage misunderstood by Morrison, disagrees with the root of Morrison's claim: "[T]he right of action depends not upon the wrongfulness of the defendant's conduct in its tendency to imperil the person whose rescue is attempted, but upon its tendency to cause the rescuer to take the risk involved in the attempted rescue. And it would seem that a person who carelessly exposes himself to danger or who attempts to take his life in a place where others may be expected to be, does commit a wrongful act towards them in that it exposes them to a recognizable risk of injury." (F. Bohlen, Liability in Tort of Infants and Insane Persons (1925) 23 Mich.L.Rev. 9, 30-31, fn. 33 [reprinted in Bohlen's seminal collection, Studies in the Law of Torts (1926) p. 569, fn. 33].)

After his concise "danger invites rescue" encapsulation, Cardozo continued: "The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had. [Citation.]" (Wagner, supra, 232 N.Y. at p. 180, 133 N.E. at p. 438); italics added. This is true regardless of who is rescued.

The primary authority supporting Morrison's view is Saylor v. Parsons (1904) 122 Iowa 679, 98 N.W. 500 (Saylor). Parsons endangered himself, Saylor came to his aid, was injured, and sued. The trial court directed a defense verdict. The Iowa Supreme Court made two points; contributory negligence would not bar the action absent a rash rescuer (see McClure v. Southern Pacific Co. (1919) 41 CaLApp. 652, 656, 183 P. 248 [citing Saylor ]), and the rescuer must show the defendant was negligent. (122 Iowa at pp. 680-681, 98 N.W. at pp. 501-502.) The holding was no negligence was shown: "Where an employee rescues a fellow workman from a position of peril and is injured in so doing, he cannot recover from the master for such injury without establishing negligence on the part of the master respecting himself or co-laborer." (122 Iowa at p. 679[2], 98 N.W. at p. 500[2], see id. at p. 681, 98 N.W. at p. 501.) The rationale was Parsons endangered himself and rescue is not generally foreseeable. "The...