Reese v. Minor

This cause came on to be heard upon the appeal from the Court of Common Pleas of Hamilton County.

In the early morning hours of November 19, 1977, plaintiff-appellant Ronald H. Reese was driving east on Kellogg Avenue in Hamilton County, Ohio. A car driven by defendant-appellee, Arthur Hermann, followed, then passed, Reese's automobile. Hermann thereafter lost control of his car in unsuccessfully negotiating a curve in the road. The car flipped onto its side and came to rest slightly off the eastbound side of the road. When Reese arrived at the scene he drove his car off the roadway, stopping a few feet short of Hermann's car.

Plaintiff Reese got out of his vehicle and shouted to Hermann several times. Hearing no reply, he crossed the eastbound lane and signaled a westbound car to stop. As this car was slowing down, plaintiff saw the headlights of an eastbound car approximately one-half mile away. He stepped out into the eastbound lane and was subsequently struck by the automobile driven by defendant John Minor.

Reese and his wife instituted this action against Minor and Hermann, Minor as the driver of the automobile allegedly striking Reese and Hermann as one owing a duty of care to Reese.

Prior to trial both Minor and Hermann filed motions for summary judgment. The trial court denied Minor's motion but granted Hermann's, finding that Hermann's actions were not the proximate cause of Reese's injuries. Plaintiffs appeal the decision as to Hermann.

Plaintiffs claim that the trial court erred in granting defendant Hermann's motion for summary judgment. They argue that the trial court could not find, as a matter of law, that defendant Hermann's actions were too remote in the chain of causation to permit plaintiffs to recover against him.

The rescue doctrine is part of the common law of Ohio. That is, one injured in an attempt to rescue a person in danger may recover from the party negligently causing the danger to the same extent as the person being rescued. Recovery is precluded if the rescue is attempted in a rash or reckless manner. PennsylvaniaCo. v. Langendorf (1891), 48 Ohio St. 316; Pittsburg, Cincinnati,Chicago St. Louis Ry. Co. v. Lynch (1903), 69 Ohio St. 123.

A rescuer may only recover against one found negligent. The ultimate determination of actionable negligence against an alleged tortfeasor is determined by common law principles. These relate to the scope of the defendant's duty, including the element of foreseeability of the injury, the violation of that duty and proximate cause. Marks v.Wagner (1977), 52 Ohio App. 2d 320 [6 O.O.3d 360].

In Ohio, the issue of proximate cause may be determined as a matter of law. Ornella v. Robertson (1968), 14 Ohio St. 2d 144 [43 O.O.2d 246]. When a motion for summary judgment is made, the party against whom the motion is directed is entitled to have the evidence and stipulations construed most strongly in his favor. Civ. R. 56(C). Thus, the question before us is: When the evidence is construed most strongly in plaintiff's favor could reasonable minds differ as to Hermann's role in proximately causing plaintiff's injuries? We concur in the trial court's judgment that they could not.

Plaintiff's own statements indicate that there was a definite break in any cause and effect between Hermann's accident and plaintiff's injuries. Plaintiff admits to seeing the oncoming headlights of defendant Minor's automobile approximately one-halfmile away from the scene of the accident. By plaintiff's own account, he remained in the path of the Minor vehicle until it was too late to get out of the way. We must emphasize that we are not faced with what may be termed normal, foreseeable actions of a rescuer. To imply that Hermann should be held accountable for this kind of behavior is to place him in the position of plaintiff's insurer. This we decline to do.

The assignment of error is overruled and the judgment of the trial court is hereby affirmed.

Judgment affirmed.

SHANNON, P.J., PALMER and KLUSMEIER, JJ., concur.