By: Paul Lipman
When a driver, landowner, or other defendant negligently puts someone in danger and someone has to rescue them, the “rescue doctrine” provides that if the rescuer gets injured, he or she can sue the defendant, too. Assumption of risk is not a defense; you are allowed to rescue someone even though you know it’s dangerous and if someone else created the original danger, they will generally have to pay for any injuries caused either to the other person or to you. However, a recent case points out that the rescuer cannot sue, if it turns out that there was actually no duty owed by the defendant to the victim being rescued, in the first place. In Tucker v. CBS 2011 DJDAR, CBS organized a $50 per person off-road ride and raffle. Along with the paying participants (who got to take part in the end-of-ride raffle and get a free t-shirt along with a free concert), there were non-paying participants who could join in the ride but didn’t get to be in the raffle or get a t-shirt. All participants, paying and non-paying, were told to use a certain tunnel that ran under railroad tracks. This tunnel was near the end of the ride and got very congested with returning participants eager to get to the raffle and free concert. Participant Aaron Tucker decided to go over the tracks instead of through the congested tunnel. At some point after crossing over, he heard someone yell “train” and he looked back and saw a non-paying participant, Kendle, stuck on the tracks. He went back and tried to help Kendle dislodge his vehicle. Soon the train was upon them and they had to jump out of the way; Tucker grabbed Kendle and pulled him, thereby rescuing him from the train. The train did not hit either of them directly but it struck Kendle’s vehicle, which then stuck Tucker. Tucker sued the ride’s organizer, CBS. The court dismissed Tucker’s case on demurrer and this was affirmed on appeal. First, Kendle (the rescuee) was a foreseeable participant, but a non-paying one, who was not eligible to enter the end-of-ride raffle or get free t-shirts at the end of the ride. It was thus less foreseeable that a non-paying participant like Kendle would use a hurry-up method like using the tracks instead of the tunnel. As the court noted, “Foreseeability supports a duty only to the extent it is reasonable, because rarely is anything unforeseeable … On a clear day, you can foresee forever”. Further, while conceivable there could have been better warnings or traffic monitoring, “it was not CBS’s .. moral responsibility to undertake all possible measures to protect Kendle … from injuries that were not reasonably foreseeable”. Finally, it would be an unfair burden on defendants in general to make people liable to non-paying participants in such circumstances, especially since they did not own the land but merely organized a ride over it.