Tuesday, August 13, 2013

The Rescue Doctrine

According to the subject matter outline created by the National Conference of Bar Examiners, half of the Torts questions on the MBE will be on the topic of Negligence. It's definitely a topic you'll want to know very well when taking the exam. An initial consideration when analyzing negligence is to determine whether a duty of care is owed to the plaintiff (the injured party in the fact pattern).

The key concept to note is that a duty of care is only owed to foreseeable plaintiffs. Determining whether a plaintiff is foreseeable requires asking whether a reasonable person would have foreseen a risk of injury to the plaintiff at the time that plaintiff was injured. In other words if an act by x causes an injury to y, but a reasonable person in the position of x would not have foreseen that y would be injured as a result of the actions by x, then x will not be liable for y's injuries on a theory of negligence.

On the MBE, one area in which you'll often be required to apply the above is when rescuers enter the scene. For example, assume that x breaches a duty of care and injures y as a result. Z, spotting an injured y, attempts to help y, and in the process z is injured. Determining whether x is liable to z requires a determination as to whether a reasonable person in the position of x would have foreseen at the time that he injured y, that someone might attempt to assist y and in the process get injured.

It's been famously stated by Justice Cardozo that "danger invites rescue." This rescue doctrine applies on the MBE, and, as such, because danger invites rescue, if one places another in danger, one should foresee that such danger will invite a rescuer to the scene, and if the rescuer is subsequently injured as a result of attempting to assist, the original tortfeasor may be liable both to the original victim, and to the rescuer who attempted to assist.

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