Bole v. Erie Insurance Exchange

967 A.2d 1017, 2009 Pa. Super. 38, 2009 Pa. Super. LEXIS 47, 2009 WL 489693

• Court: Superior Court of Pennsylvania
• Decided: February 27, 2009
• Docket: 2248 WDA 2007
• Status: Published

Opinions

OPINION BY

KLEIN, J.:

¶ 1 Ronald T. Bole¹ appeals from the trial court order denying his petition to modify an arbitration award after the arbitrators in a 2-1 vote refused to award him underinsured motorist benefits. Bole suffered serious injuries while responding to call as a volunteer fireman in response to a serious automobile accident. The accident was caused by an underinsured motorist who was driving too fast for conditions and hydroplaned in a severe rainstorm. A bridge on Bole’s property collapsed in the same rainstorm and Bole was badly injured when he was thrown from the truck he was driving on the way to the accident and the truck crushed him against an I-beam. We reverse and remand for further proceedings.

¶ 2 Bole filed a claim to collect underinsured motorist benefits from his own policy. That claim was disputed and was subsequently heard by an arbitration panel which determined Bole was not entitled to benefits because his claim did not fall within the parameters of the rarely invoked “rescue doctrine.” The “rescue doctrine” was initially adopted by the Pennsylvania Supreme Court in 1900 in Corbin v. City of Philadelphia, 195 Pa. 461, 45 A. 1070 (1900). The Supreme Court said that strict enforcement of principles of contributory negligence should not bar a person from collecting from a negligent party whose actions place someone at risk of imminent death or bodily harm. To recover, the rescuer must only show that his acts were reasonably appropriate and performed in the exercise of ordinary care. See Bell v. Irace, 422 Pa.Super. 298, 619 A.2d 365, 369 (1993) (an banc); Pachesky v. Getz, 353 Pa.Super. 505, 510 A.2d 776 (1986). However, the “rescue doctrine” applies only in special cases and is a narrow exception to the principles of causation. Bell at 368.

¶ 3 Our standard of review under the Arbitration Act of 1980 is to modify or correct a finding of arbitrators “where the award is contrary to law and is such that had it been a verdict of a jury, the court would have entered a different judgment or a judgment notwithstanding the verdict.” 42 Pa.C.S.A. § 7302(d)(2).

¶ 4 Because there is no transcript from arbitration it is difficult to ascertain the principles of law applied by the arbitrators. What we do have is the following one paragraph conclusion of two of the three arbitrators, the third being in dissent:

The undersigned arbitration panel finds against the claimants (Boles) on the basis that the rescue doctrine does not apply to the facts of this case. Claimant was not actively engaged in a rescue as contemplated by Corbin and its progeny.

Decision and Order, May 25, 2007.

¶ 5 While we believe it may be that the facts of this case do not support the application of the rescue doctrine, we disagree that Bole was “not actively engaged in a rescue” at the time of his injury. We remand for the trial court to refer the matter back to the arbitrators for further consideration applying the proper standard of law.

¶ 6 The idea behind the rescue doctrine is to free a person who is injured while undertaking a rescue from the narrow standards of “legal” or “proximate” or “factual” cause. For the doctrine to apply the person being rescued must be legitimately perceived to be in danger of death or serious bodily injury. In this case, a call came in that a car had rolled over and the occupants were trapped. This is an emergency situation that risks death or serious bodily injury and encourages rescue.² It is not always that rescuers will be on the scene. Therefore, until it is determined that the emergency has passed, the person going to the rescue is “actively engaged in a rescue as contemplated by Corbin and its progeny,” contrary to the statement of the law followed by the majority of the arbitrators. In short, as noted in Bell, the “rescue doctrine” is “a narrow exception to the ordinary principles of negligence which require a showing of proximate causation.” Bell, 619 A.2d at 368-69 (emphasis added).

¶ 7 Further, Bell instructs us that,

In certain situations where a litigant otherwise would not recover for failure to satisfy the proximate causation requirement, the law supplies another means to meet the requirement through the “rescue doctrine,” thereby permitting recovery.

Bell, 619 A.2d at 369.

¶8 The “other means” referred to is later explained.

“Where a defendant’s negligent act, of commission or omission, has created a condition or situation which involves ur-^> gent and imminent peril and danger, to life or property, of himself or of others, those acts of negligence are also negligence in relationship to all others ... who may attempt, successfully or otherwise, to rescue such endangered life or property, by any means reasonably appropriate’ and performed in the exercise of ordinary care.

Id. (internal citations omitted).

¶ 9 In this case, the record shows that the first three prongs of the test are met.

1. The initial driver was negligent.

2. The negligence put the initial driver in danger.

3. Bole was in the act of attempting the rescue (we differ from the arbitrators on this point, as we disagree that under the circumstances the situation was too attenuated to be actively part of the rescue).

4.This leaves the fourth prong for consideration by the arbitrators, who did not reach this point because of their holding with regard to whether Bole was in the act of the rescue. That point is, in the words of Bell, was whether Bole exercised “means reasonably appropriate and performed in the exercise of ordinary care.”

¶ 10 What constitutes “ordinary care” cannot be viewed in a vacuum but must be considered in the circumstances of the case. When it is necessary to get to an accident scene in a short amount of time, while a rescuer cannot be reckless, he or she is not held to the same standard as he or she would be if on an ordinary drive. Here, the arbitrators must consider if Bole used reasonably appropriate means and ordinary care in rushing to an accident scene in a driving rainstorm.

¶ 11 While foreseeability might not be the test, part of the consideration is the standard question as to whether there is an intervening factor. That relates to the question of whether the injury suffered by the rescuer is sufficiently related to the rescue, assuming the rescuer was using reasonably appropriate means. Prior case law does not address this situation.

¶ 12 Case law mentions situations such as saving a person from a railroad track or saving a child who has fallen through a hole in a bridge. Typically, the hypothetical given is that the rescuer is injured by the passing train or the rescuer is injured in diving in the water to save a child. These are activities that might typically be seen as part of an active rescue. We have already demonstrated that the active rescue encompasses the attempt to reach the site of peril as well.

¶ 13 Although the standard of causation is different under the rescue doctrine, as noted in the Bell opinion, there still must be a causal connection between the fact that this is a rescue situation and the accident. This might open the rescue doctrine to the concept of intervening factors. Such as: while running to the bridge to save the child, the rescuer is stuck by a stray bullet from a hunter. The rescuer is taking part in the active rescue, but is the bullet an intervening cause of injury too attenuated from the actions of the rescue itself? In another situation, what if the rescuer, still attempting to get to the scene, is stuck by a motorist who has run a red light?³ While the rescue doctrine removes foreseeability from the equation, does that mean that any and all injuries suffered by a rescuer are automatically covered? We suggest that the arbitrators, in issuing their decision, make findings of fact and discuss the situation as clearly and completely as possible.

¶ 14 We note that in other jurisdictions there is another rule that prevents recovery for “professional” rescuers and would justify denying the motion to modify/correct the majority of the arbitrators that denied underinsured motorist coverage in this case. That is the so-called “fireman’s rule.” As noted in a footnote to the trial court opinion, Pennsylvania has not adopted the “fireman’s rule,” See generally Holpp v. Fez, Inc., 440 Pa.Super. 512, 656 A.2d 147 (1995) and Mull v. Kerstetter, 373 Pa.Super. 228, 540 A.2d 951 (1988). We note that the application of the fireman’s rule is not free from doubt. In Bell, supra, this Court found that the rescue doctrine did not apply because plaintiff had arrived after the accident and was just providing post-accident medical care to the pedestrian/victim after imminent peril had ceased. The Court went on to say:

Because we conclude that the rescue doctrine does not apply in this case it is not necessary for us to decide the questions raised by Appellants whether the rescue doctrine is available to “involuntary,” or professional, rescuers. [This is also called the “fireman’s rule.”]

619 A.2d at 370.

¶ 15 Since Holpp, supra, is a 1995 case and specifically holds that the “fireman’s rule” or “professional rescuer” rule does not apply, we do have an answer to the question not considered in Bell v. Irace, supra, (bracketed language supplied). We also note that in a footnote in Heil v. Brown, 443 Pa.Super. 502, 662 A.2d 669, 671 (1995), this Court said that while the fireman’s rule did not apply in a land owner case, it might apply in a claim of a police officer against mental health professionals when the officer was injured by a mental health patient who allegedly was not properly monitored. However, this was only dicta since this Court also found that the situation was not reasonably foreseeable. While we believe that the “professional rescuer” or “fireman’s rule” has not yet been applied in Pennsylvania, it may be useful for the arbitrators to address this issue of law as well.

¶ 16 Order reversed. Matter remanded for further proceedings consistent with this Opinion. Jurisdiction relinquished.

¶ 17 FITZGERALD, J., files a DISSENTING OPINION.

1 . Ronald T. Bole’s wife, Susan M. Bole is also a plaintiff for consortium claims but for convenience we will refer to Ronald individually and both plaintiffs as "Bole.”

2 . As it turned out, the injuries suffered in the original accident were not as severe as originally believed. That was not known until paramedics arrived at the scene, well after Bole’s accident occurred.

3 . We are trying to present situations, perhaps somewhat outlandish, that do not closely resemble the current situation because we do not want to poison the well by suggesting any answer.