Rescue doctrine allows for suit against rescued victim if that party was at fault for creating the peril

Law Reporter, May 1999

Saltsman v. Corazo, 721 A.2d 1000 (N.J. Sup. Ct. App. Div. 1998).

A New Jersey appellate court held that a rescuer may sue a rescued person who is either completely or partially at fault for creating the peril that necessitated the rescue.

Here, Saltsman, a patron at an entertainment complex, witnessed a fight between the complex's manager and three other patrons. Saltsman, seeing the manager outnumbered, intervened in the fight and was hit with a golf club and seriously injured. He sued the manager, among others, claiming that he had incited the fight, thereby breaching a duty of care he owed to plaintiff. The trial court granted defendant summary judgment.

Reversing, the appellate court noted that an analysis of defendant's duty to plaintiff in this situation was not dependent on his status as a business invitee on the premises at the time of injury. Defendant's liability, the court reasoned, is more appropriately analyzed in the context of the rescue doctrine where the status of the parties, though relevant, is not a determinative factor.

The court noted that although a lawsuit under the rescue doctrine typically is brought by an injured rescuer against a nonvictim party who created the peril, application of the doctrine is not limited to that scenario. The court observed that many jurisdictions have expanded the doctrine to include situations where an injured rescuer seeks recovery from the victim, whose own negligence helped create the situation necessitating the rescue. In those cases, the rescue doctrine establishes not only the victim's duty to the plaintiff but also that the victim's negligence in creating the peril was a legal cause of injury, although it may not have been the cause in fact.

Applying the doctrine here, the court remanded the case for a jury determination of whether defendant negligently instigated the fight. If the jury finds defendant at fault, the court said, it must then determine whether he could have reasonably anticipated that plaintiff, a social acquaintance and business invitee, might intervene. In these circumstances, plaintiff's recovery will only be discounted if the jury determines plaintiff acted unreasonably during the rescue effort.

Plaintiff's Counsel: Betsy Bisset, Berlin, N.J.

*Benjamin Goldstein, Berlin, N.J.