The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Samolyk v. Berthe, decided Monday by the New Jersey Supreme Court, in an opinion by Judge Jose Fuentes (temporarily assigned):
This appeal requires this Court to determine whether to expand the common law rescue doctrine to permit plaintiffs to recover damages for injuries sustained as a proximate result of attempting to rescue defendants' dog. After reviewing the noble principles that infuse the public policy underpinning this cause of action, we decline to consider property, in whatever form, to be equally entitled to the unique value and protection we bestow on a human life….
This matter arises from injuries sustained by plaintiff Ann Samolyk while trying to rescue a dog [Beau, a seventy-nine-pound boxer,] owned by defendants Ilona and Robert DeStefanis. Ann's husband, John Samolyk, filed a civil action against defendants, as Ann's guardian ad litem, alleging defendants were liable under the rescue doctrine by negligently allowing their dog to fall or jump into the canal that borders their property, prompting Ann to dive into the water to prevent the dog from drowning….
The parties are neighbors in Forked River, an unincorporated bayfront community within Lacey Township. Their homes are situated on a canal. In the evening of July 13, 2017, defendants' dog fell or jumped into the canal that snakes around the rear area of this shore community. Ann claimed she heard someone calling for help to rescue their dog that had fallen into the canal. A report filed by a Lacey police officer describes the incident as "a report of a dog swimming in the lagoon." The report states that Ann "entered the lagoon to rescue the dog." The dog "was removed from the lagoon," without any apparent harm, by defendants' son and a family friend. Regrettably, Ann was found "unconscious on a floating dock." In response to defendants' interrogatories, plaintiffs allege Ann sustained neurological and cognitive injuries as a result of the incident….
[In the words of then-N.Y.-Judge Benjamin Cardozo,]
Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid.
The rescue doctrine … was originally limited to situations "where three persons are involved, i.e., one party by his culpable act has placed another person in a position of imminent peril which invites a third person, the rescuing plaintiff, to come to his aid." … [But it has since] been applied "to situations where the rescuer … sues the rescued victim who is either completely, or partially, at fault for creating the peril that invited the rescue." …
In this appeal, we are asked to expand the scope of the rescue doctrine to include those who voluntarily choose to expose themselves to significant danger in an effort to safeguard the property of another. We decline to modify the rescue doctrine to incorporate such a far-reaching departure from [its] fundamental principles ….
We acknowledge that the Restatement (Second) of Torts extends the rescue doctrine to property and provides that
[i]t is not contributory negligence for a plaintiff to expose himself to danger in an effort to save himself or a third person, or the land or chattels of the plaintiff or a third person, from harm, unless the effort itself is an unreasonable one, or the plaintiff acts unreasonably in the course of it.
The Second Restatement, however, acknowledges that "a plaintiff may run a greater risk to his own personal safety in a reasonable effort to save the life of a third person than he could run in order to save the animate or inanimate chattels of his neighbor or even of himself." Furthermore, the Restatement (Third) of Torts: Liability for Physical and Emotional Harm includes the extension to property, noting: "This Section is also applicable to a rescuer of imperiled property, whether that property is owned by another or by the rescuer."
A majority of our sister states that have extended the rescue doctrine to cover property have done so in accord with the Restatement …. [But o]ther jurisdictions have declined to expand the rescue doctrine to include the protection of property. For example, … [one] court explained that
[t]he policy basis of the distinction in treatment of rescuers of persons and rescuers of property seems "to rest upon that high regard in which the law holds human life and limb; whereas, when mere property is involved, one may not voluntarily subject another to greater liability than that which he seeks to avert." …
We are convinced that any attempt to reform the application of the rescue doctrine to include the protection of property, whether animate or inanimate, realty or chattel, must emanate from our innate instinct to protect human life. Notwithstanding the strong emotional attachment people may have to dogs, cats, and other domesticated animals, or the great significance some may attribute to family heirlooms, or works of art generally considered as irreplaceable parts of our cultural history, sound public policy cannot sanction expanding the rescue doctrine to imbue property with the same status and dignity uniquely conferred upon a human life….
We are also aware, however, that certain preemptive acts that appear to be driven by the protection of property are, at their core, adjuncts to the protection of human life and thus may give rise to a cause of action under the rescue doctrine. For example, consider a neighbor who reports a fire in a nearby house to the proper authorities, then attempts to squelch the fire based on a reasonable, good faith belief that children or other vulnerable inhabitants may be in immediate danger, or because it appears likely the fire may spread to other occupied properties. Under those circumstances, if the fire was negligently started, the neighbor may have a cognizable basis to invoke the rescue doctrine to recover damages for injuries caused by the preemptive measures taken to limit the intensity of the fire, even if it is later determined there was no actual risk to human life because the house was unoccupied.
Following that line of reasoning, plaintiffs' cause of action would have survived a motion for summary judgment had she jumped into the canal after defendants' dog as a simultaneous reaction to seeing a child of tender years running after the animal and quickly approaching the edge of the dock. In that hypothetical situation, Ann's actions to protect the child from imminent danger by rescuing the dog may have been reasonable and could therefore have served as the basis for a cognizable cause of action under the rescue doctrine.
By contrast, the uncontested evidence here shows that Ann's actions were based solely on her perception of danger to the dog's life. These nuanced distinctions are intended to acknowledge and reaffirm the public policy underpinning the rescue doctrine in our state, to wit, the protection of human life. Thus, plaintiffs' complaint was properly dismissed because Ann's decision to jump into the canal to save the dog's life does not give rise to a cognizable claim under the rescue doctrine.