By: Peter J. Gallagher (LinkedIn)
In a case with facts that could have been ripped from a torts exam, the Appellate Division held that a woman who jumped into a canal to try to save a neighbor’s dog could not sue the neighbor under the rescue doctrine because the doctrine applies only to people trying to rescue other people, not people trying to rescue animals.
In Samolyk v. Berthe, plaintiff claimed that she heard someone calling out that their dog was in a canal near her property and needed help. She jumped in to try to help. Defendants tell a different story. They claim that they were having dinner with their son and some friends when they realized their dog was missing from their fenced-in yard. They claim they searched for the dog, determined that the dog had fallen or jumped into the canal, walked to a neighbor’s backyard, and pulled the dog out of the water. Defendants claim they never asked for help from plaintiff or anyone else.
Defendants called 911 some time later after their son told them that “a woman needed assistance.” When police arrived, plaintiff was unconscious on a floating dock and the fire department was on the scene performing CPR. Plaintiff regained consciousness, but allegedly suffered “debilitating brain damage” that led to her husband being appointed her guardian ad litem.
Plaintiff sued defendants. She argued that defendants were liable under the so-called rescue doctrine. She claimed that defendants negligently allowed their dog to be in peril, which invited the risk that plaintiff would try to save the dog, so defendants are liable for any harm suffered by plaintiff during the rescue. The trial court denied the motion, holding that the rescue doctrine applies to people, not property (and it held that the dog was personal property). Plaintiff appealed.
The Appellate Division began by recognizing that the rescue doctrine has “long been part of our State’s social fabric.” It observed that it developed as a “response to the argument that one who rushed into danger to rescue another and was injured in the effort was contributorily negligent for his own injuries and therefore was barred from recovering for those injuries in tort.” And it noted that “[t]he doctrine permits the injured rescuer to maintain a cause of action against the one whose negligence placed the victim in imminent danger, because it is that negligence that has given rise to the intervention of the rescuer.”
But the Appellate Division acknowledged that New Jersey courts had only applied the rescue doctrine to scenarios involving people rescuing people – e.g., a mom who sued her neighbor after she was hurt trying to remove her child from a puddle on the neighbor’s property and even a plaintiff who sued for emotional distress after attempting to rescue a neighbor’s child from a fatal leopard attack at the circus – not people rescuing property.
The court then examined the out-of-state cases and secondary authority plaintiff cited to support expanding the rescue doctrine to situations involving people rescuing property, real or personal. The court held that the majority of courts that had considered the issue concluded that the doctrine should be extended to such situations. Defendants acknowledged as much but argued against the wholesale adoption of the doctrine to all cases involving “imperiled property.” In support of this proposition, defendants noted that the cases cited by plaintiff all involved situations where “the attempted rescue was of property with significant value or . . . the circumstances posed a threat greater than mere injury to the property itself.” They further argued that “applying the rescue doctrine to imperiled property of de minimis or sentimental value ultimately leads to absurd and untenable results.” (I don’t think Defendants were necessarily making a value judgment about the dog in Samolyk or suggesting that pets were generally “of de minimis or sentimental value,” but rather defendants were arguing, as a point of law, that applying a blanket rule to personal property would be unmanageable.)
The Appellate Division “recognize[ed] the merits” of plaintiff’s position that “foreclosing application of the rescue doctrine in all cases involving imperiled property seems out-of-step with the majority of our sister states,” but also “acknowledge[d] the valid points raised by defendants.” Ultimately, however, the Appellate Division, an intermediate appellate court, was constrained to follow the “dictates of the Supreme Court,” particularly “when it comes to the adoption of a new cause of action.” (In layman’s terms, “We’d love to help you, but our hands are tied.”) And since the New Jersey Supreme Court has not yet recognized the cause of action plaintiff urged, the Appellate Division “decline[d] . . . plaintiff’s invitation to extend the rescue doctrine under the facts of this case.”
Pete's Take 