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Posts Tagged ‘liability’

Playtime is not what it used to be

Let's Play!

This picture has nothing to do with the article, but it looks like a fun play date

Some parents are now requesting that other parents sign waivers of liabilitybefore their children can come over for play dates or parties.

I wish I was making that up.

When I was a kid, I don’t think our parents used the phrase “play date.” I think we just went over to one another’s houses. I’m almost positive that no waivers and indemnifications were involved. I blame us lawyers for this, alas.

Photo credit: Let’s_Play! by Jon Hurd (originally posted to Flickr as Let’s Play!) [CC-BY-2.0], via Wikimedia Commons

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This week in bad lawsuits

Thanks to Haley Odom for bringing this to my attention. Two men in Ohio who heroically rescued a woman from a burning car wreck are now suing her for their physical and emotional injuries.

For real.

According to the Marion County Clerk of Courts website, the suit was filed back on March 10, 2011, but I suspect the defendant was not served until recently. I was initially rendered speechless reading about this. I was sure that there was something the news wasn’t covering, some detail of the victim/defendant’s conduct that might give the rescuers/plaintiffs cause to complain. So far, I haven’t found anything. Good Samaritan laws generally protect rescuers from liability to the people they rescue, but I had not thought much about the liability of the rescued to the rescuer.

Photo from The Columbus Dispatch

Clearly this was a pretty serious crash and rescue (Photo from The Columbus Dispatch)

Here’s the thing: hopefully the defendant has insurance and hopefully some sort of coverage is available for this sort of case. At least one of the plaintiffs appears to have some serious health problems resulting from smoke inhalation during the rescue. I haven’t found any definitive reporting on the cause of the crash, but some reports suggest it might have been a suicide attempt (in that the driver/defendant reported to “authorities she had argued with someone the day of the crash and wanted to end her life.”) Whether it was an accident or not, reports are clear that she wanted help getting out of the vehicle. It is also true that, legally, civilians are not obligated to risk their own lives to save someone in that sort of situation.

A professor at Capital University Law School says this is no “man bites dog” story, that rescuers sue those they helped more often than people think.

“The precedent is clear: danger invites rescue … and if you’ve acted recklessly or negligently and someone gets hurt rescuing you, you could be in trouble,” said Stan Darling, who teaches tort law and civil procedure at Capital.

Every state, including Ohio, has a “Good Samaritan” law that is intended to absolve rescuers from liability when they, in good faith, attempt to save someone. But when it comes to the protection of the people being aided, judges and lawyers look to a federally recognized tort law known as “the Rescue Doctrine,” Darling said.

It essentially says that, if the people being helped were negligent or reckless when they created real danger, there could be a chance to recover damages if the rescuers acted reasonably and can prove their injuries. (Source)

So, can rescuers hold a rescuee liable for injuries sustained in a rescue that was purely voluntary? Did the driver act negligently or recklessly? I can see arguments in either direction, but the one things that is absolutely clear is that this will be a disaster for the plaintiffs in the court of public opinion. I’m such a lawyer that I can’t bring myself to state a definitive opinion on the assumption that there are facts I don’t know that would affect legal analysis of the case.

This could be a good precedent for would-be-rescuers, if (a) people could feel assured that they will be covered if they are injured in the course of rescuing of someone, and (b) people understand the added risk of liability to a rescuer if they behave recklessly. Of course, no one makes these sorts of calculations at a moment of emergency, but it makes for a good legal hypothetical.

 

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