Thursday, August 27, 2009

Interesting recent case regarding the so-called "rescue doctrine"

About a month ago, the Illinois Court of Appeals (third district) decided a case called Strickland v. Kotecki (available here) in which the court decided that a person could recover for the injuries he suffered while attempting to prevent the defendant from comitting suicide.

Although the court bases its decision on what it calls "the rescue doctrine" which is a label that has been used for a long time in Illinois, the case is incomplete in its analysis. First of all, I have to say that I hate the use of "labels" like "the rescue doctrine". Such a label does not explain or add anything and in fact makes it sound like it refers to a distinct rule that can be applied without analysis. In reality, the so called rescue doctrine is nothing other than the application of the proximate cause analysis developed by Justice Cardozo in Palsgraf v. Long Island Railroad and in Wagner v. International Railway.

But enough about that, let's talk about the case. Here, fearing that her husband could have gone out to try to kill himself, a woman called her brother in law for help. They found the husband's car parked in a fenced-in business property behind a locked gate. The vehicle had a hose running from its exhaust pipe to the passenger window.

The brother in law jumped over the fence to try to rescue the guy in the car, he injured his right foot and later sued his sister in law and her husband. The trial court granted a motion to dismiss and the plaintiffs appealed. Citing another Appeals Court decision from 1996, the court starts by stating that the rescue doctrine "provides that it is always foreseeable that someone may attempt to rescue a person who has been placed in a dangerous position. . ."

This statement, unfortunately, is wrong. The rescue doctrine [if I must use the label] does not provide that a rescue is always foreseeable. Not noticing its mistake, the court in Strickland contradicts the quoted statement by then affirming that "whether the rescue doctrine applies is generally a question for the jury", which, of course, means that a rescue attempt is, by definition, not always foreseeable. If it were, there would be no reason to send the question to the jury.

The misconception contained in the statement from the 1996 case comes from Cardozo's famous words "danger invites rescue" in Wagner, but even he explained in that case that there are exceptions. Yes, danger invites rescue, but not all rescue attempts are foreseeable. As Cardozo explained, it is not foreseeable that someone would engage in what he called "foolhardy" conduct in an attempt to rescue. Likewise, it is not foreseeable that someone would place him or herself in a high degree of danger in an attempt to rescue someone (ie, it is not foreseeable that someone who does not know how to swim would jump in the lake to help someone drowning).

Because we can't determine beforehand (and for all cases) at what point the rescuer's conduct becomes "foolhardy" is why we have to leave it up to the jury to decide.

So, okay, now that we get this straight, let's move on to the real problem with the case. The facts of this case present an interesting question that had not been addressed by courts in this state before, namely whether a rescuer can bring a cause of action against a defendant who places himself in danger. Obviously, a cause of action of this sort is brought against the person whose negligence created the need for the rescue in the first place, but most cases involve the rescue of an innocent third party (often also a plaintiff) against the person who causes an accident. Here, the person who arguably created the need for the rescue and the person who needed rescuing was one and the same.

The court could not find any cases in Illinois that addressed this question but stated that all other cases in other jurisdictions have held that the rescue doctrine allows a rescuer to recover from defendants who place themselves in danger. It seems logical to me that it would be so.

The problem is that this is all based on a very important point the court seems to forget. This is a negligence claim. For the rescuer to have a cause of action against the person who created the need for the rescue in the first place, not only must the rescue attempt be foreseeable, the plaintiff needs to establish that the defendant was negligent in the first place. And this, the court does not do. Instead, the court then turns its attention to determining whether people attempting suicide "owe a duty to those attempting to rescue them."

This statement shows a fundamental misunderstanding of the issue here. Whether there is a duty depends on whether the injury is a foreseeable consequence of the risk created by the negligent conduct. In other words, it depends on whether the rescue attempt was foreseeable, which the court already said is a question for the jury. After some discussion of the duty argument, the court then concludes that there is a duty and states, that "[t]his analysis follows the simple logic of the rescue doctrine."

Well, of course, it follows, because this whole argument is just a repetition of the first one. It is all a big circular argument that leads to the same place.... Why? Because the question of proximate cause and the question of duty are really two sides of the same coin as any student of Palsgraf v Long Island Railroad knows.

What is missing from the decision of the court is a discussion of a really difficult question in this case. Was the defendant negligent? Is attempting suicide, in and of itself, an example of negligent conduct, or are there circumstances where it can be said that a person used all reasonable care in attempting to end his or her life. This depends on the facts, and I don't think we have enough of them to decide the question in this case.

It is interesting to note that in support of its conclusion regarding the duty argument, the court cites a Torts treatise that states: "[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." Note how this cite supports my concerns. The author makes it clear that everything depends on whether the defendant acts carelessly and on whether the suicide attempt takes place "in a place where others might be expected to be."

Assume a person decides to end his life and to do so takes his car and parks it in an isolated area in the woods, connects a hose to the exhaust, etc and just sits there. It just so happens that on that day a jogger decided to cut through the woods and sees what's happening, tries to help and gets injured in the process. Can't the defendant say that even under the logic of the famous treatise cited by the court, he did not act negligently? He has a right to end his life, he decided to do it in an isolated area, quietly, not bothering anyone, not placing anyone in danger in the process... At the very least, wouldn't it be a question for the jury?

In the Strickland case the question may not be as difficult, though. Although we don't have all the facts, I got the sense that the rescuer found the defendant relatively easily, and the court hints at this at the end of the opinion by stating that the defendant attempted suicide "in a location where his wife, sister-in-law and brother-in-law might find him." Yet, the court never actually states that the defendant acted negligently. It certainly can be argued that he did* -- and maybe the court is just assuming it. But I think it has to be determined.
*You could argue, for example, that his conduct can be distinguished from the one in my hypothetical because he created an unreasonable risk of harm to foreseeable rescuers by attempting suicide in a location where he would have been found easily and from which it would have been difficult to retrieve him without the rescuer risking injury.


L said...

Based on the facts presented, why didn't the sister-in-law call the police? Also, why didn't the man trying to save the other man realize that he may not be properly trained and may cause more harm or simply be of no help? I think these reasons make the attempt to save the man's life by the plaintiff more in the foolhardy range.

Also, I do not understand how an act of suicide would be negligent. The person committing suicide would have to know that someone would try to save him (or her), the person would also have to create an unreasonable risk of harm for potential "suicide savers" as well. Maybe someone feigning suicide would exemplify this because if someone was serious about suicide than why would they put themselves in a position where they would want to be rescued or could be rescued?

Emily said...

You said, "He has a right to end his life, he decided to do it in an isolated area, quietly, not bothering anyone, not placing anyone in danger in the process..." I would question whether he actually has that right.

Assuming he doesn't and that attempting suicide is not something a reasonable and prudent person would do under the circumstances (and I just finished reading Fuller v. Preis, so I'm aware that there may be a question about that, but assuming for the sake of my argument...), then he has placed himself at an unreasonable risk of harm, has he not? If that is the case, and someone injures himself attempting to "rescue" the suicidally negligent actor, then the actor has the same duty to his rescuer that he has to himself and that is to create an unreasonable risk of harm to either of them.

I guess it doesn't really matter, though, because, regardless of whether the suicidal actors actions created an unreasonable risk of harm to himself, it would still be a question of fact for the jury to decide whether the suicidal actor reasonably could have foreseen that a rescue might be attempted and the rescuer could be injured as a result... This was the same mistake the Appellate Division made in the McCoy case, is that right?

It seems to me that the court in this case must have erroneously applied the foreseeability requirement to the suicidal actor's injuries (which would be a foregone conclusion, since he was intentionally trying to kill himself) to the injuries caused to the rescuer and that's where they got this wrong?