McCarter v. Davis - No. 4:13cv0346 TCM, 2014 U.S. Dist. LEXIS 102399 (E.D. Mo. July 28, 2014)

Rule:

A person who sees another in imminent peril created by the negligence of defendant will not be charged with negligence in risking his or her own life or serious injury in an attempt to rescue, provided he or she does not act recklessly or rashly. To achieve the status of a rescuer, a claimant's purpose must be more than investigatory. There must be asserted some specific mission of assistance by which the plight of the imperilled could reasonably be ameliorated.

Facts:

In June 2010, John Edward Davis (Davis) was driving a Toyota 4Runner and pulling a trailer in a westbound lane of Interstate 70 in Missouri. Davis lost control of his vehicle. The 4Runner and trailer went into the median between the east and westbound lanes and came to a stop, the 4Runner resting on its passenger side and the trailer resting on its top. McCarter, driving a Ford Escort, was behind Davis' vehicle, saw Davis lose control, and pulled her car to the left shoulder of the Interstate to see if Davis was okay. McCarter, and her two passengers, Roma Vora and Anthony Wright, got out of her car, the latter going to assist Davis. McCarter stayed by her car. Other westbound vehicles pulled over on the right side of the Interstate, including a tractor-trailer and, approximately fifty yards in front of it, a Ford Taurus driven by Daniel Rozum (Daniel) where he had his wife Tara Rozum (Tara) as a passenger. Daniel had not seen Davis' accident occur, but did see two people on the median heading to a vehicle parked on its side. As McCarter stood by her car and Vora was calling "911," McCarter heard the driver of the tractor-trailer yell at her to move her car to the right shoulder. McCarter then got back into her car, put on her seatbelt, checked for oncoming traffic, and started to drive across the two westbound lanes. Back on the right side of the Interstate, Tara got out of the car and, "keeping as far away from the highway as [she] could stay," walked back east on the gravel side of the shoulder to speak with the man standing by the tractor trailer about whether "911" had been called. She left her cell phone  in her car, intending to return to the car and call "911" if the driver of the tractor trailer said it had not been called. If the call had been made, she would return to the car and she and Daniel would then have driven on. As Tara was walking toward the tractor-trailer, she heard a crash. (Id. at 23, 24, 25.) She looked up and saw a Ford Escort headed toward her, the one drive being driven by McCarter from the left side of the Interstate westbound lanes to the right. When at least a portion of the Ford Escort was in the right lane of the westbound traffic, it was struck by a truck pulling a horse trailer being driven by Matthew Bonn. The car, driven by McCarter, struck Tara after it was hit by Bonn's truck. Tara sustained serious injuries. Before hitting McCarter's car, Bonn did not know of Davis' accident. Tara and Daniel Rozum filed suit against McCarter in the Circuit Court of Montgomery County, Missouri. McCarter was the only named defendant. She filed a third-party petition against Davis, Bonn, and Bonn's business, Airpark Equestrian. Later, she dismissed her claims against Davis without prejudice and settled the Rozums’ claims. In December 2012, McCarter filed this action against Davis in the Circuit Court of St. Louis County, Missouri, for contribution.

Issue:

May Davis be held liable for the Rozums’ claims by virtue of the rescue doctrine?

Answer:

No.

Conclusion:

The undisputed facts are that Davis' accident was in the median of the Interstate, i.e., between the westbound and eastbound lanes, and the Rozums pulled over on the shoulder of the right lane. They had not seen the accident occur. Neither Daniel nor Tara intended to cross the highway to get to Davis. Tara intended only to determine if "911" had been called. She did this by approaching the tractor trailer driver, also on the shoulder of the right lane, to ask if it had been called and, if it had not been, she planned to return to her car and make the call. When approaching the driver on foot, she walked as far away from the traffic lane as possible while avoiding the ravine. Thus, Tara purposefully avoided putting herself in a position where she might be injured. Moreover, the maximum assistance she, and Daniel, intended to render was to make a phone call if necessary to obtain assistance for Davis from someone else. For the purposes of Missouri's rescue doctrine, Tara Rozum was not a rescuer by virtue of her activities of walking on the right shoulder of the highway for the sole purpose of determining from a bystander on that same shoulder whether "911" needed to be called to respond to an accident — not witnessed by either Rozum — in the median on the other side of the highway.