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JAMES PROVENZO v. NANCY D. SAM (11/27/68)

COURT OF APPEALS OF NEW YORK 1968.NY.43711 <http://www.versuslaw.com>; 244 N.E.2d 26; 23 N.Y.2d 256 decided: November 27, 1968. JAMES PROVENZO, APPELLANT,v.NANCY D. SAM, DEFENDANT, AND RUTH E. MARTENSON, RESPONDENT Provenzo v. Sam, 27 A.D.2d 442, reversed. Counsel Anthony J. Spann for appellant. William R. Blood for respondent. Scileppi, J. Chief Judge Fuld and Judges Burke, Bergan, Keating, Breitel and Jasen concur. Author: Scileppi


Provenzo v. Sam, Scileppi, J. Chief Judge Fuld and Judges Burke, Bergan, Keating, Breitel and Jasen concur.

Author: Scileppi

 On January 18, 1964 at approximately 6:00 p.m. the plaintiff was operating his pickup truck, in which his wife was a passenger, in a westerly direction along Lake Shore Drive, in the City of Dunkirk. The plaintiff observed the automobile directly in front of him (thereafter identified as being owned by respondent) begin to swerve back and forth on the highway. At this point, plaintiff remarked to his wife: "This person must be sick, must have had a heart attack". The automobile then continued on its wayward course, hitting a parked car, crossing the highway, colliding with a house and coming to rest on the lawn of the house with its driver, the respondent, slumped over the steering wheel.

The plaintiff parked his vehicle on the northerly side of the highway, looked in the rear view mirrors of his vehicle, observed a truck proceeding in a westerly direction along the highway, allowed the truck to pass his vehicle, looked along the highway in a westerly direction, observed the lights of an oncoming car at some distance, and then ran across the highway to render assistance to the defendant. At a point approximately two or three feet from the southerly curb, the plaintiff was struck by an automobile owned and operated by the defendant Sam and sustained serious injuries.*fn*

The respondent on the other hand was fortunate to escape with relatively minor injuries. Respondent testified that she had been drinking prior to the accident; that she was rendered unconscious when she struck the parked car and remembered nothing else until she regained consciousness after her automobile came to rest on the lawn of the house. Respondent was charged with and pleaded guilty to driving while impaired by intoxication.

The trial court charged the jury:

"I further Charge you in that connection that a person who is injured while attempting to rescue another from peril in an emergency situation is not negligent merely on the ground that the rescue entails danger to himself.

"The law has a high regard for human life and efforts to save it. Danger invites rescue. The impulse to respond to an urgent call for aid, without complete regard for one's own safety, is recognized as normal.

"The law will not impute negligence to an effort to preserve life, unless made under such circumstances as would be rash or wanton.

"Conduct is rash or wanton when it is undertaken in utter disregard of the consequences.

"If you find in this case that the plaintiff acted in an emergency situation to rescue Mrs. Martenson, or that she was in need of immediate aid or in peril, and that plaintiff's conduct was not rash or wanton, then you may find that the plaintiff was not guilty of contributory negligence."

The jury found for the plaintiff and awarded him a substantial judgment. The Appellate Division reversed on the law and the facts holding that the rescue doctrine was inapplicable to the facts in the instant case, and that once the doctrine had been removed from the case a finding that the plaintiff was free from contributory negligence must necessarily fall.

In considering this case, a brief discussion of the development of the rescue doctrine in our State will help crystalize the rationale leading to our conclusion that the rescue doctrine is applicable.

The doctrine was first created to avoid a plaintiff being found contributorily negligent as a matter of law when he voluntarily placed himself in a perilous situation to prevent another person from suffering serious injury or death (Wagner v. International Ry. Co., 232 N. Y. 176; Eckert v. Long Is. R. R. Co., 43 N. Y. 502). This is not to say, however, that after a plaintiff has established the necessary elements for the implementation of the doctrine that he can no longer be found contributorily negligent. He must still show that in attempting the rescue he acted as a reasonable man under the circumstances.

The normal situation where the doctrine has been applied is 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. However, the doctrine has been expanded to encompass a two-party situation where the culpable party has placed himself in a perilous position which invites rescue ...


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