In Florida, a person who has created a perilous situation for another person will be held to have caused the peril not only to a victim, but also the person attempting to rescue him. The creator of the situation is thereby liable for the rescuer’s injuries. A plaintiff must prove three elements: the defendant’s negligence, the person to be rescued was in imminent peril due to the defendant’s negligence, and that the rescuer acted reasonably under the circumstances.
In a recent case, the plaintiff was at the hospital while hospital employees were gait training patients in the hallway. A patient who was being gait trained began to fall and in the process caused the plaintiff to fall and suffer an injury.
She sued the hospital claiming that it violated its duty to warn of a dangerous condition and to keep the premises reasonably safe for invitees that might be present while inexperienced therapists were performing gait training. She claimed these conditions were not apparent to her. However, she did not plead the rescue doctrine. Instead she presented the whole account as one in which she happened to be walking down the hallway when she was knocked over by an unknown patient.
The deposition testimony revealed that the patient who had fallen was her mother who had suffered a stroke. The gait training was physical therapy to help her regain her ability to walk. On the day of the accident the plaintiff’s mother had been practicing at the hospital’s physical therapy center, walking by using the parallel bars. She next practiced using the hemi-walker, a four-legged walker that provides a brace at hip-level.
The mother was moving and stepping with the hemi-walker on her left side. Because the risk of falling is always present during gait training, a patient always wears a gait belt that the therapist holds to control a fall.
The plaintiff regularly came to her mother’s gait training to help, even though she had a neck injury that left her permanently disabled. At the time of the accident, she was behind her mother and the therapist, pushing a wheelchair behind the mother in case she wanted to sit down while training. She knew there was a risk her mother could fall.
While using the hemi-walker, the mother started to fall towards the right. The therapist tried to control the fall with the gait belt. The plaintiff threw herself forward to cushion her mother’s fall. The mother and the wheelchair fell on top of her. She injured her back.
The hospital filed for summary judgment. Still, the plaintiff did not plead the rescue doctrine. The lower court granted summary judgment and the plaintiff appealed. On appeal, she presented an argument that the rescue doctrine applied.
The appellate court explained that it could not consider the rescue doctrine on appeal because she had not pled the doctrine either in preparing the complaint or arguing in opposition to summary judgment. She had pled premises liability and physical therapy malpractice.
Under either of these theories, proximate cause and duty could not be established except by reference to the rescue doctrine. She had thrown herself to catcher her mother and the court noted that this action would usually represent an independent intervening cause for her injury.
This case illustrates the importance of retaining experienced South Florida personal injury attorneys to bring your case and develop a comprehensive strategy for dealing with all possible doctrines under which relief may be available to you.
If you are injured or a loved one is wrongfully killed because of somebody else’s negligence, call the experienced personal injury attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.
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