The Emergency and Rescue Doctrines - a Quasi “Common Law Marriage” in Negligence Law

A recent case, Pavone v. Marte, decided by Justice Bernard J. Graham on September 19, 2012, addresses the emergency doctrine, a New York rule adopted from the common law. The interesting facts are these: The defendant Marte was a counselor of a day camp who at the time, had a number of children in her charge as they were entering Central Park in Manhattan for a camp-sponsored outing. In keeping with her training, Marte stood in the middle of a crosswalk having crossed with the light, as she held up a “stop” sign for oncoming traffic so that her children could cross with safety. Before all of the children could reach the other side of the street however, the light changed. Marte continued to hold her “stop” sign up as a number of bicyclists approached the crosswalk. They stopped at her signal. The plaintiff Pavone, another bicyclist, was moving rapidly heading toward the crosswalk, and despite the presence of the “stop” sign being held by Marte, and notwithstanding her shouting to him to “stop” fearing he would either hit her or the children still in the crosswalk, he continued on without slowing down. It was then that Marte struck his arm on the “stop” sign causing him to fall off his bicycle, sustaining personal injuries. Pavone thereafter, brought suit in negligence against Marte who moved for summary judgment, asserting that the emergency doctrine should act as a legal bar to Pavone’s cause of action against her.

In an analysis of the facts, the court considered the New York common law doctrine of emergency which states in part: “When an actor is faced with a sudden and unexpected circumstance that leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct…[the] actor may not be negligent if the actions taken are reasonable and prudent in the emergency context”.

Applying the common law emergency doctrine, the court granted the defendant Marte’s motion for summary judgment, and dismissed the case.

What the Pavone v. Marte, a 2012 case brings to the mind of this writer, is one that was decided 86 years earlier by Justice Benjamin N. Cardozo. The case in point is Wagner v. International Railway in which a passenger on a train walked through connecting cars, and fell through the opening between them. Hearing her screams, a good Samaritan passenger rushed to her aid, yanking her up to safety as she was dangling precariously close to the track bed while the train was at full speed. In the process however, the good Samaritan injured himself and later brought suit against the railroad claiming that its negligence in permitting passengers to walk freely through cars thus exposing them to the danger of falling through the openings where the two cars are connected (as in this case), should be held liable to the passenger who was injured while attempting to rescue the fallen passenger.

Justice Cardozo, then sitting in the New York Court of Appeals before ascending to the United States Supreme Court, wrote the opinion for New York’s highest court, setting forth Cardozian prose that has become legendary and part of every law school curriculum in tort law: “Danger invites rescue. The cry of distress is the summons to relief… The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.”

The Wagner decision established four criteria that have to be present for the rescue doctrine to be applicable. They are:

1. There must be peril or the appearance of peril to a third-party, caused by the defendant;
2. That peril or appearance of peril must be imminent;
3. A reasonable person would recognize the peril or appearance of peril and the plaintiff must also have actually recognized it; and
4. The plaintiff must have exercised reasonable care in effecting the rescue.

One can recognize a similar logic that underpins the “rescue doctrine” applied in the Wagner case in 1926 and the “emergency doctrine” applied in the Pavone case 86 years later, although the former serves as a cause of action, and the latter, as a defense.

The judicial opinions of such brilliant legal scholars as Justice Benjamin N. Cardozo carve out the foundations of our common law, and Pavone v. Marte at least, confirms that the “emergency” and “rescue” doctrines will continue to live side-by-side in a quasi “common law marriage” as fully and productively in the future, as they have in the past.